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2019 DIGILAW 262 (BOM)

Pr. Commissioner Of Income Tax 17 v. Seth Properties

2019-01-29

AKIL KURESHI, M.S.SANKLECHA

body2019
JUDGMENT Akil Kureshi, J. - These Appeals under section 260A of the Income Tax Act, 1961 (the Act), challenge the common order dated 4th March, 2015 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order dated 4th March, 2015 is in respect of Assessment Years 2003-04, 2004-05, 2005-06 and 2006-07. Thus, four appeals. 2 The Revenue urges the following common identical question of law in all the appeals for our consideration: " Whether in law and on the facts & circumstances of this case, was the Tribunal was justified in upholding the deletion made by the CIT(A) to determine the Income from house property ignoring the order of the Addl. Rent Tribunal ?" 3. We refer to the facts from Income Tax Appeal No.512 of 2016 relating to Assessment Year 2003-04. This as it is agreed position between the parties that except differences in dates and amounts, the facts and law applicable to all the four Assessment Years in appeal are identical. 4. The Respondent is an owner of numerous shops in one building at New Delhi. The Respondent had let out all its shops to persons who are tenants protected under the Delhi Rent Control Act. In respect of one of its shops/ premises viz. L40 which was given on rent to one M/s. Hemkunt Chemicals (a protected tenant), who had illegally sublet it to M/s. Bank of Punjab. Therefore, proceedings were initiated by the Respondent for eviction of M/s. Bank of Punjab Ltd., as a trespasser and M/s. Hemkunt Chemicals for unlawfully inducting M/s. Bank of Punjab Ltd., into the premises. In these eviction proceedings the Rent Control Tribunal by order dated 5th July, 2003 directed M/s. Bank of Punjab to deposit Rs. 1,42,000/per month in Court. This order was confirmed by the Delhi High Court on 29th July, 2003. Further, on 6th July, 2006, the Delhi High Court allowed the Respondent to withdraw the amounts deposited by M/s. Bank of Punjab. On withdrawal, the amounts received were duly disclosed in the return for Assessment Years 2007-08 and 2008-09 as nontaxable compensation. This amount of Rs. This order was confirmed by the Delhi High Court on 29th July, 2003. Further, on 6th July, 2006, the Delhi High Court allowed the Respondent to withdraw the amounts deposited by M/s. Bank of Punjab. On withdrawal, the amounts received were duly disclosed in the return for Assessment Years 2007-08 and 2008-09 as nontaxable compensation. This amount of Rs. 1,42,000/per month which was awarded only in respect of the L40 premises against a trespasser as mesne profit/ occupation charges/ damages was taken as the yardstick of the rent which would be obtained even in respect of the other premises/shops owned by the Respondent even when they were occupied by the protected tenant under the Rent Control Act. Thus, the Assessing Officer determined the rental income at Rs. 4.29 Crores (against declared rental income of Rs. 2.70 lakhs) by Assessment Order dated 31st December, 2010 passed under Section 143(3) read with Section 147 of the Act. 5. Being aggrieved, the Respondent preferred an Appeal to the Commissioner of Income Tax (Appeals) [CIT(A)]. By the order dated 8th July, 2011 relating to Assessment Years 2003-04 allowed the Respondent''s appeal. This, by inter alia, holding that the dispute before the Rent Control Tribunal was in respect of one of the properties which had been trespassed by M/s. Bank of Punjab Ltd., and the compensation/ mesne profit/ damages granted in respect thereof (L40) could not be compared to the rent received in respect of all other shops/premises from protected tenants. Thus, enhancement made by the Assessing Officer was deleted. 6. On appeal by the Revenue, the impugned order of the Tribunal held that the Respondent is expressly barred from receiving any consideration in excess of the provisions of the Rent Act. Further, the impugned order of the Tribunal while upholding the order of the CIT(A) held that the determination of the mesne profit/ occupation charges/ damages by the Rent Control Tribunal was only with regard to one specific premises (L40) which the original tenant one M/s. Hemkunt Chemicals had unlawfully inducted one M/s. Bank of Punjab Ltd., so as to trespass into it. The Tribunal further held that in view of the fact that all the other shops/ premises of which the rent was sought to be enhanced, were covered by the Rent Control Act and the rent could not be in excess of the standard rent determined under the Rent Control Act. The Tribunal further held that in view of the fact that all the other shops/ premises of which the rent was sought to be enhanced, were covered by the Rent Control Act and the rent could not be in excess of the standard rent determined under the Rent Control Act. Thus, without any specific order being passed in respect of other premises, the Assessing Officer could not have extrapolated the mesne profit/ occupation charges/ damages fixed by the Additional Rent Control Tribunal as rent receivable in respect of all other shops/ premises even when protected by the Rent Control Act. Thus, dismissed the Revenue''s appeals. 7. Mr. Pinto, learned Counsel for the Appellant in support submits that, in view of the fact that Rent Control Tribunal has determined the amount of Rs. 1.42 lakh payable by the Bank of Punjab Ltd. in respect of one premises (L40), the same has been correctly applied even in respect of other properties as that would be the rent at which it could be let. 8. We find that the above submission on behalf of the Revenue proceeds on an incorrect fundamental premise viz. that the Addl. Rent Control Tribunal had fixed a rent of Rs. 1.42 lakhs per month in respect of (L40) premises, occupied by M/s. Bank of Punjab. This is factually incorrect. The amount of Rs. 1.42 lakhs per month were directed to be paid by M/s. Bank of Punjab in eviction proceedings as mesne profits/ damages. All the other premises are let out to persons who are protected by the Rent Control Act. Moreover, no order has been passed by the Rent Control Tribunal, fixing higher rent in respect of the other premises nor has the Revenue brought on record any evidence of the other premises being let out by the Respondent at more than the declared rent. Thus, we see no reason to interfere with the impugned order of the Tribunal for the four Assessment Years 2003-04 to 2006-07. 9. In view of the above, the common question as framed in all the four appeals do not give rise to any substantial question of law. Thus, not entertained. 10. Accordingly, all four Appeals are dismissed. No order as to costs.