Income Tax Appellate Tribunal – Chennai
Acit, Cc- 6(2),, Chennai vs S.N. Damani Infra Pvt. Ltd.,, … on 30 November, 2021 आयकर अपीलीय अिधकरण, ‘ए ‘ यायपीठ, चे ई
IN THE INCOME TAX APPELLATE TRIBUNAL
‘A’ BENCH, CHENNAI
ी महावीर संह, उपा य एवं एवं ी जी. मंजुनाथ, लेखा सद य के सम
BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND
SHRI G. MANJUNATHA, ACCOUNTANT MEMBER
आयकर अपील सं./ITA No.: 3324/Chny/2019
िनधारण वष / Assessment Year: 2014-15
Assistant Commissioner of Income S.N. Damani Infra Pvt. Ltd.,
Tax, v. No. 6, Ground Floor,
Corporate Circle 6 (2), Rayala Tower,
Chennai. 781-785, Anna Salai,
Chennai – 600 002.
[PAN: AAOCS 0334C]
(अपीलाथ /Appellant) ( यथ /Respondent)
अपीलाथ क ओर से/Appellant by : Shri. AR V Sreenivasan, Addl. CIT
यथ क ओर से/Respondent by : Shri. D. Anand, Advocate
सुनवाई क तार ख/Date of Hearing : 09.11.2021
घोषणा क तार ख/Date of Pronouncement : 30.11.2021
आदे श /O R D E R
PER G. MANJUNATHA, ACCOUNTANT MEMBER:
This appeal filed by the Revenue is directed against the
order passed by the learned Commissioner of Income Tax
(Appeals)-15, Chennai, dated 18.10.2019 and pertains to
assessment year 2014-15.
2. The Revenue has raised the following grounds of appeal:
“1. The order of the Ld. CIT(A) is contrary to the law and
facts of the case.
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2. The Ld. CIT(A) erred in allowing the relevant income
i.e. letting out of the warehouse properties on rent, under the
head “House Property” when the primary source of income of
the assessee in the business of providing warehouse property on
rent.
2.1. The Ld. CIT(A) erred in allowing the relief to the
assessee by holding that the relevant income to be assessed as
income from “House Property”, basically by WT holding that the
assessee did not provide any amenities nor rendered any
service.
2.2. The Ld. CIT(A) ought to have appreciated the
decision of the Hon’ble Supreme Court in the case of M/s Rayala
Corporation Pvt. Ltd. [2016] 72 taxmann.com 255 (Mad)(HC)
wherein held that income earned from an activity of leasing
property and earning rent, to be brought to tax under the head
of “Business Income”.
2.3. The Ld. CIT(A) ought to have appreciated the
decision of the Hon’ble jurisdictional High Court in the case of
M/s NDR Warehousing Pvt. Ltd. [2015] 60 taxmann.com 255
(Mad)(HC) wherein held that in case of warehousing business,
Th’T the income earned would fall under the head of “Business
Income”.
3. For these and other grounds that may be adduced at
the time of hearing. It is prayed that the order of the Ld.
CIT(A) may be set aside and the order of the Assessing Officer
be restored.”
3. The brief facts of the case are that the assessee is in the
business of providing warehouse and supply chain solution,
filed its return of income for assessment year 2014-15 on
29.09.2014, declaring total income of Rs. 8,48,87,080/-. The
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only source of income of the assessee is rental income derived
from building owned and let out to a tenant. The assessee has
declared rental income derived from property under the head
income from house property after claiming applicable
deduction u/s. 24(a) and 24(b) of the Income Tax Act, 1961
(herein after “the Act”). The AO has assessed rental income
derived from letting out of property under the head income
from business or profession on the ground that the assessee is
in the business of providing warehouse solution and supply
chain management and said activity is in the nature of
business, but not simple letting out of property to derive rental
income. The AO had also taken support from the main objects
of the assessee to treat rental income under the head income
from business with the help of certain judicial precedents
including decision of Hon’ble Supreme Court in the case of CIT
vs Chennai Properties and investments Ltd (2015) 373 ITR
673 (SC). The relevant findings of the AO are as under:
“2.4. In the context of above submission of the assessee the
following facts needs to be considered:
a) ln the `Notes forming part of Financial statement’ under the
head `A. Background, the assessee has stated as follows:
“SN Damani lnfra private Limited was incorporated under part lx
of companies Act 1956, on March 30, 2010. It was formed to convert
the erstwhile partnership firm M/s SN Damanim Enterprises into a
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private Limited company. The company is engaged primari.ly in the
business of providing warehouse or property on rent.”
b) Currently the only source of Income is lease income. There is
no other income. The lease income mainly comes from letting out of
warehouses. This income is not just letting out of its properties. The
income comes from providing warehousing services. Kind attention is
invited to the website content of the assessee provided in Annexure A
to this order.
c) ln the case of Chennai Properties (supra) the Honb’le SC
considered SLt(fan Brothers (P.) Ltd. v. CIT 51 lTR 353 and observed
as follows 1.n Para 10:
“No doubt in Sultan Brothers P. Ltd.’s case (supra), Constitution
Bench judgment of this Court has clarified that merely an entry in the
object clause showing a particular object would not be the
determinative factor to arri.ve at an conclusion whether the income is
to be treated as income from business and such a question would
depend upon the circumstances of each case, viz., whether a particular
business is letting or not. This is so stated in the followi.ng words:
“We think each case has to be looked at fr6m a businessman’s
point of view to find out whether the letting was the doing of a business
or the exploitation of his property by an owner. We do not further think
that a thing can by its very nature be a commercial asset. A
commercial asset is only an asset used in a business and nothing else,
and business may be carried on which practically all things. Therefore,
it is not possible to say that a particular activity is business because it
is concerned with an asset with which trade is commonly carried on.
We find nothing in the cases referred, to support the proposition that
certain assets are commercial assets in their very nature.
In this case the assessee viewed its assets as providing ware
housing solution and supply chain management and not merely as
house property as evident from website content used for marketing its
business. To exploit its warehouse the assessee uses commercial
assets like logo (copied and pasted below from assessee’s website) on
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conversion of firm to company since 2011 (reference Notes forming
part of financial statement -Note 8 fixed assets – Tangible.
d) The assessee regularly makes advertisement in newspaper
and online to promote its business. Please refer Annexure B – the
ledger of advertisement.
e) The assessee had leased in properti.es i..e. lands from I.)
Kalpana R Damam 0 ii) Saraswathi Apartments Pvt Ltd iii) Swasthik
Apartments Pvt Ltd and iv) G. N. Damani. ( This property was leased in
the current Assessment Year) and constructed warehouse on them and
leased them out.
f) The Hon’ble HIGH COURT 0F MADRAS in T.C.A. NOS. 303 TO
305 AND 812 0F 2013 in the case of Commisioner of Income Tax v NDC
Warehousing (P) Ltd in its order dated December 1, 2014 in para no 5
observed as follows:
” In the instant case, we find that the Commissioner of Income
Tax (Appeals) as well as the Tribunal have not only gone into the
objects clauses of the memorandum of association of the company but
also on individual aspects of the business to come to the conclusion
that it is a case of warehousing business and therefore, would fall only
under the head “business Income”.
In the present case also not only the objects but also the
activities of the assessee goes to prove that the assessee is in
warehousing business and infrastructure goes to prove that the
assessee is in warehousing business and infrastructure industry. This is
evident from verification of P&L where security charges, lease rent
payments for leased in properties, repairs and maintenance –
warehouse, advertisement charges, business promotion, consultancy
charges, conference expense, medical expenses, professional fee and
salary to securities were charges. All these expenditures are partly
related to warehouse directly and partly to common administrative
expenses to run the business of warehouse and infrastructure.
g) The assessee constructed one IT Park at Karapakkam,
Chennai as evident from the fixed asset schedule. The assessee lets
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out the same to Scope International Marg, an IT enabled Service
Company.
2.5 Decision: In this instant case of the assessee the only
source of income is from warehousing services. The company’s one of
the objectives is to lease out. The assessee leased in properties for the
purposes of leasing out. The assessee built IT infrastructure and let out
to an IT enabled Service Company. Hence it is concluded that the
income received by assessee is assessable under the head income from
business and profession. Hence the standard deduction claimed by the
assessee is disallowable however the expenditures claimed in the P&L
and Depreciation though not claimed by the assessee is allowed. The
income is computed as follows:
Business income:
Profit before Tax : 11,66,72,573
Add:
Depreciation As per CO Act : 93,60,735
Interest on TDS : 32,550
Interest on IT : 78,857
Donations : 11,175
Land expenses : 39,386
Loss on SPM Assets : 99,421
: 96,22,949
Less:
Depreciation as per IT Act: 1,52,54,651 : 1,52,54,651
Business Income : 11,10,40,046
Assessable income : 11,10,40,046
Returned income : 8,48,87,075
Difference in income : 2,61,41,796 ”
4. Being aggrieved by the assessment order, the assessee
preferred an appeal before the CIT(A). Before the Ld. CIT(A),
the assessee has reiterated its submissions made before the
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AO and argued that rental income derived from let out of
premises is assessable under the head house property, but not
under the head income from business or profession, when the
assessee is involved in activity of simple letting out without
providing any additional facilities which is in nature of business
or profession. The Ld. CIT(A), after considering relevant
submissions of the assessee and has also taken note of fact,
observed that facts of the present case are distinguished from
facts of the case considered by the Hon’ble Supreme Court in
the case of Chennai Properties and Investments Ltd vs CIT,
(supra) where main objective of the company is letting out of
premises, whereas in the present case, the assessee is into
simple letting out premises on monthly rental without
providing any amenities to the tenants, which is not in the
nature of systematic business activity. Therefore, he opined
that rental income derived by the assessee from letting out of
premises is assessable under the head income from house
property, but not under the head income from business.
Therefore, he directed the AO to accept income declared by
the assessee under the head income from house property.
The relevant findings of the Ld. CIT(A) are under:
“6.3 I have perused the decision of CIT(A)-15, Chennai in the case of
M/s. Singhvi Developers Pvt. Ltd. in the order vide ITA No. 271/2016-
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17/CIT(A)-15 dated 28.02.2019. The relevant portion of the CIT(A)’s
order is reproduced hereunder:
“4.3.1. The only issue contested in appeal is the AO’s assessment
of rental income from letting out of property owned by the
appellant company under the head, “Business Income’ offer
rejecting the appellant’s claim that it should be assessed under the
head -`Income from `House Property’. Thereby, the AO has denied
the appellant’s claim of statutory deduction of 30% u/ s 24(a) from
the rent received. After referring to the Hon’ble supreme Court’s
decision in the case of Rayala Corporation Pvt. Ltd. and in the case
Of Chennai Properties Ltd., the AO has observed that the
appellant’s only source of income is from rental income and
therefore, the appellant’s main objective is real estate including of
Iease.
4.3.2. Before the CIT(A), the appellant’s AR has contended that the
appellant has been consistently following the method of declaring
rental income under the heed-income from `House Property’ from
this AY 2014-15 onwards. The AR has emphasized that the
appellant’s main objective is not the business of leasing out of
properties. The AR has pointed out that in the case of Chennai
Properties and Investments Ltd., the main objective of the
company was letting out of properties, whereas it is not so in the
appellant’s case. For the same reason, the appellant’s case is
distinguishable from the apex court’s decision in the case of Rayala
Corporation Pvt. Ltd. The AR has contended that only when as
assessee treats the leased out assets as business asset and is in
the business of letting out of properties, the rental income can
be considered as business income. The AR has pointed out that
in all those decisions, wherein the income was assessed under
the head, ‘Business Income’ the assessee would have rendered
several amenities to the tenants and the properties would have
been managed as business assets. In the appellant’s case, the
asset was not treated as business assets, etc, and no amenities
were rendered to the tenants.
4.3.3. I have perused the following particulars furnished by the
appellant’s AR which was already considered by the AO in the
assessment order.
(a) Memorandum and Articles of Association of the appellant
company,
(b) Lease deed dated 07-03-2013 between the appellant
company(Lessor) and. M/:s Faurecia Emissions Control
Technologies Pvt. Ltd.(Lessee).
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(c) Letters dated 25-10-2016, 28-10-2016 and 7-11-2016
addressed to the Assessing Officer during the assessment
proceedings.
4.3.4. From the perusal of the above documents, it is clear that
the appellant was not in the business of letting out of properties
and it is not the main objective of the appellant company. Perusal
of the lease deed also reveals that the appellant did riot treat the
property as business asset and did not render amenities to the
tenants. Although the above documents were furnished before the
Assessing Officer, the AO has not controverted the same. The AO’s
only observation is that the rental income is the only source of
income for the appellant company. I do not agree with the AO’s
conclusion that, just because rental income is the only source for
the appellant company, this same must be assessed as business
become.
4.3.5. I have perused the decision of Hon’ble Madras High Court in
the case of Keyaram Hotels Pvt. Ltd. Vs. ACIT [2008] (300 ITR
118)(Mad.), which is briefly mentioned below.
“Section 22, read with section 28(i), of the Income-tax Act,
1961 – Income from house property – Chargeable as –
Assessment year 2001-02 – Assessee – company was owner of
a property and had earned income by letting it out – In its
return of income, it had shown such income as business
income – However, Assessing Officer assessed said leave
income under head ‘Income from house property’ – Whether
since on facts, it was clear that income was generated out of
exploitation of property by leasing out same and there was no
commercial activity carried out by assessee to earn such
income, such rental income was rightly assessed as income
from house property – Held, yes”
4.3.6. 1 have also perused the decision of Hon’ble Supreme Court
in the case of Raj Dadarkar and Associates Vs. ACIT [2017] (394
ITR 592), which is briefly mentioned below:
“Section 22, read with sections 27 and 28(i) of the Income-tax Act,
1961 Income from house property – Chargeable as (Letting
of shops)- Assessee acquired leasehold rights in a property
from MCGB – It constructed various shops and stalls on said
property and gave same to various persons on sub-licensing basis –
Income generated from sub-licensing was claimed as business
income – Assessing Officer took a view that since assessee had
acquired leasehold right in land for more than 12 years, it was to
be regarded as ‘deemed owner’ of premises by virtue of section
27 (iiib) – Accordingly, income earned from letting out shops and
stalls was taxed under head ‘income from house property’ –
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Tribunal as well as High Court upheld order of Assessing Officer –
Whether since assessee had not established that it was engaged in
any systematic or organized activity of providing service to
occupiers of shops/stalls, mere fact that object clause of
partnership deed mentioned that business of assessee was to take
premises on rent and to sub-let same, was not sufficient to
conclude that income in question was taxable as business income –
Held, yes – Whether, therefore, impugned order passed by
authorities below was to be confirmed – Held, yes [Paras 16 and
18] [In favour of revenue]
4.3.7 In the aforesaid decision, the apex court has held
that a clause in the objects of an assessee, is not a conclusive
proof to determine its activity and whether an assessee is into a
business activity or not is to be determined on facts. In the
aforesaid decision, the apex court has referred to the
decisions in the case of Chennai Properties and Investments Ltd,
and Shambu Investments Pvt. Ltd.
4.3.8. From the above decisions and after perusal of the facts
and circumstances, 1 have come to the following conclusion.
(a) Letting out of properties is not the main objects of the
appellant.
(b) The appellant is not in the business of letting out its properties.
(c) The appellant did not render common amenities to the tenant so
as to
hold the rental income under the head, ‘Business Income’.
(d) The AO has not brought on record and conclusive proof to
substantiate assessment of rental income under the head,
Business income’.
(e) The appellant has been consistently declaring rental income
under the head, ‘House Property’.
4.3.9. From the above remarks and decisions relied on, I am of
the considered opinion that the rental income declared by the
appellant should be assessed under the head ‘House Property’ and
not under the head, ‘Business Income’. Therefore, the AO is
directed to accept the appellant’s declaration of rental income
under the head, ‘House Property’ and to allow statutory deduction
of 30% u/s 24(a) of the IT Act. The appellant’s grounds are
allowed.”
6.4 After perusing the appellant’s submission with supporting
documents and after perusal of the CIT(A)’s decision in the case of
M/ s Singhvi Developers Pvt. Ltd. mentioned above, I am
convinced that the rental income received by the appellant is to
be assessed under the head – Income from other sources as the
appellant did not provide amenities nor rendered any service. The
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lease rental agreement and other particulars submitted by the
appellant support this point of view. The AR has contended that the
decisions relied on by the AO in the cases of Chennai Properties
Pvt. Ltd., Rayala Corporation Pvt. Ltd., and NDR Warehousing
Pvt. Ltd., are not applicable to the appellant’s case as leasing out
properties as business activity is not the main object of the
appellant company. It is further contended that unlike in those
cases, the appellant has been consistently declaring rental income
under the head – Income from House Property.
6.5 From the above remarks and decisions relied on, I am of
the considered opinion that the rental income declared by the
appellant should be assessed under the head ‘House Property’ and
not under the head, ‘Business Income’. Therefore, the AO is
directed to accept the appellant’s declaration of rental income
under the head, ‘House Property’ and to allow statutory deduction
of 30% u/s 24(a) of the IT Act. The appellant’s grounds are
allowed. Since the income is to be assessed under the head —
House Property, the depreciation allowed by the AO on their
property should be withdrawn.”
5. The Ld. DR submitted that the Ld. CIT(A) has erred in
directing AO to assess rental income under the head income
from house property by relying order of Commissioner of
Income Tax (Appeals) -15, Chennai in the case of M/s. Singhvi
Developers Pvt Ltd. in ITA No. 271/2016-17 dated 28.02.2019,
without comparing facts of the present case to facts
considered by the Ld. CIT(A) in the above case. The Ld. DR
further submitted that the Hon’ble Supreme Court in the case
of M/s. Rayala Corporation Pvt. Ltd., (2016) 72 Taxmann.com
255 (Mad), very clearly held that income earned from an
activity of leasing property and earning rent, to be brought to
tax under the head income from business. The Hon’ble
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jurisdictional High Court in the case of M/s. NDR Warehousing
Pvt. Ltd., vs CIT (2015) 60 Taxmann.com 255 (Mad), held that
in the case of warehousing business, income earned would fall
under the head business. The Ld. CIT(A) without considering
relevant facts has simply directed the AO to assess income
under the head income from house property.
6. The Ld. AR for the assessee on the other hand,
supporting the order the Ld. CIT(A) submitted that the
assessee is into simple letting out of property for monthly
rental without providing any amenities to the tenant and thus,
the activity of simple letting out cannot be treated as a
systematic business activity which is in the nature of trade and
commerce. The Ld. AR further submitted that the Ld. CIT(A)
has rightly distinguished decision of the Hon’ble Supreme
Court in the case of Chennai Properties and Investment Ltd vs
CIT, (supra), in light of main objects of the company and held
that in the case of Chennai Properties and Investments Ltd.,
the main object of company is to develop and let out
properties, whereas, in the present case, it is a simple letting
out of property on monthly rental. Therefore, he submitted
that the Ld. CIT(A) has rightly apprised the facts in light of
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various evidences filed by the assessee to direct AO to assess
income under the head income from house property and thus,
order of the Ld. CIT(A) should be upheld.
7. We have heard both the parties, perused materials
available on record and gone through orders of the authorities
below. Admittedly, the main object of the assessee as per its
Memorandum of Association is not into development and let
out of properties. The assessee is into the business of
warehousing, supply chain solutions, which is different from
own, develop and letting out of properties. The AO has taken
reference to objects incidental or Ancillary to the attainment of
the main objects, as per which clause 4 of incidental objects
speaks about let on lease or otherwise mortgage, sell dispose
of immovable or movable properties. Similarly, clause 39 of
incidental objects speaks about purchase, take on lease any
house, building or structure. Based on incidental or Ancillary
objects, the AO concluded that main objects of the assessee is
into develop and let out properties and thus, income derived
from said activity falls under the head ‘income from business
or profession’, but not under the ‘head income from house
property’ as claimed by the assessee. To support his view, the
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AO has relied upon ratio of the Hon’ble Supreme Court in the
case of Chennai Properties & Investments Ltd. vs CIT, (supra),
where, it was held that if main objects of the assessee is to
own, develop and letting out properties, then rental income
derived from said activities is assessable under the head
‘income from business’.
8. We have given thoughtful consideration to reasons given
by the AO in light of various arguments advanced by the
assessee, in light of main objects of the assessee, and we
ourselves do not subscribe to the reasons given by the AO to
assess rental income derived from letting out properties under
the head ‘income from business or profession’ for simple
reason that the assessee’s main object is warehouse and
supply chain solutions, which is different from letting out of
properties on rent. Further, the assessee did not render any
amenities to the tenant so as to hold rental income under the
head income from business or profession. The AO has not
brought on record any evidence to substantiate his view of
rental income to be assessed under the head income from
business or profession, except stating that the main object of
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the assessee is into own and let out property on rental income.
But in particular, the AO has not brought out any evidence to
prove that the assessee is in the business of letting out
properties on rental income as a systematic business activity.
Therefore, we are of the considered view that unless the AO
brings on record certain evidences to prove that the main
objects of the assessee is into own and let out properties on
rental income and further, the assessee is carrying out its
objects by developing and letting out properties on rental
income, it cannot be said that the assessee is into business of
own, let out properties on rent. No doubt, the Hon’ble
Supreme Court in the case of Chennai Properties & Investment
Ltd vs CIT, (supra) has held that if main objects of the
assessee company is into own, develop and let out properties
on rent, then income derived from such activity should be
assessed under the head ‘income from business or profession’.
But, in the present case, the AO has failed to prove the fact
that main object of the assessee is into own, develop and let
out properties on rent. Therefore, rental income derived from
letting out of properties cannot be assessed under the head
‘income from business or profession’ in light of the ratio laid
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down by the Hon’ble Supreme Court in the case of Chennai
Properties & Investments Ltd., vs CIT, (supra).
9. Be that as it may, in the latest decision of the Hon’ble
Supreme Court in the case of Raj Dadarkar and Associates vs
ACIT (2017) 394 ITR 592 (SC), the Hon’ble Apex Court has
considered identical issue, and after considering its earlier
decision in the case of Chennai Properties & Investments Ltd
vs CIT, (supra) has held that clauses of 4 objects of the
assessee is not a conclusive proof to determine its activity and
whether the assessee is into business activity or not is to be
determined on facts. The court further held that whether
assessee is into the systematic and organized activities by
providing service to occupiers of premises or a mere let out of
property on rent has to be decided on facts. In this case, the
main objects of the assessee is not into own, develop and let
out properties on rent and further, the assessee has not
carried out letting out of properties on rent as a systematic or
organized business activity. Further, the assessee has not
provided any amenities to the occupants of the premises
except providing premises on simple leave and license basis.
Therefore, we are of the considered view that, the case of the
assessee is squarely covered by the decision of the Hon’ble
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Supreme Court in the case of Chennai Properties & Investment
Ltd vs CIT, (supra) and the latest decision of Hon’ble Apex
Court in the case of Raj Dadarkar and Associates vs ACIT,
(supra). The AO without appreciating facts has wrongly
concluded that income derived from letting out of properties is
assessable under the head ‘income from business or
profession’ as against income declared under the head ‘income
from house properties’. The CIT(A) after considering relevant
facts has rightly directed the AO to assess income derived
from letting out of properties under the head income from
house property. Hence, we are inclined to uphold findings of
the Ld. CIT(A) and dismiss appeal filed by the Revenue.
10. In the result, appeal filed by the Revenue is dismissed.
Order pronounced in the court on 30th November, 2021 at Chennai.
Sd/- Sd/-
(महावीर संह ) (जी. मंजन
ु ाथ)
(MAHAVIR SINGH) (G. MANJUNATHA)
उपा य /Vice President लेखासद य/Accountant Member
चे ई/Chennai,
th
दनांक/Dated, the 30 November, 2021
JPV
आदे श की ितिलिप अ ेिषत/Copy to:
1. अपीलाथ /Appellant 2. थ /Respondent 3. आयकर आयु (अपील)/CIT(A)
4. आयकर आयु /CIT 5. िवभागीय ितिनिध/DR 6. गाड फाईल/GF
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