Dos dalias, concierto para dos arpas, guitarra y orquesta: información general, forma y armonía

Question 1

People Housing Ltd. is engaged in the business of constructing residential and commercial properties. One of the building properties was included in the closing stock in the Balance Sheet.

The said building was let out for a monthly rent as suitable buyers could not be found. All other buildings had been sold by the company. Examine with reasons whether the income by way of rent from the unsold property is assessable as income from business or income from house property.

How would the monthly rent be taxed, if the main objective of the company was to hold properties and earn income by letting out of these properties?

Answer

(a) Under section 22, the charging section for “Income from house property”, the only exception provided is the income derived from property used/occupied by the assessee for his own business. Therefore, income derived from letting out of house property will be taxable under the head “Income from house property”, even if property is held by the assessee as stock-in-trade of his business.

As per section 23(5), the annual value of the house property held as stock-in-trade is taken to be nil for a period of two years from the end of the financial year in which certificate of completion was obtained from the competent authority, if such property is not actually let out during the said period. It implies that the income from house property held as stock-in-trade–

(i) beyond the said period of 2 years; or

(ii) let out during the whole or any part of the previous year, would be taxable under the head of “Income from house property”.

Thus, if the assessee is engaged in the business of construction and selling of house-properties, the monthly rent from letting of such unsold inventory, being in the nature of house property, would be taxable under section 22.

The provisions for non-chargeability of annual value of property held as stock in trade for a period of two years, where such property is not let out, are contained in section 23 which falls under the head “Income from House Property”. Consequently, annual value of such property would become taxable under the same head of income where such property is let out at any point of time or in any case, after the expiry of the said period of two years.

Note – In the case of New Delhi Hotels Ltd. v. ACIT (2014) 360 ITR 187, the Delhi High Court followed its own decision in the case of CIT vs. Discovery Estates Pvt. Ltd/CIT vs. Discovery Holding Pvt. Ltd., wherein it was held in the case of rental income derived from unsold flats which were shown as stock-in trade in the books of the assessee should be assessed under the head “Income from house property” and not under the head “Profits and gains from business and profession”.

This decision is in sync with the intent of the provisions of section 22 and 23(5) discussed above.

(b) The Supreme Court, in Chennai Properties and Investments Ltd. v. CIT (2015) 373 ITR 673, held that where holding of properties and earning income by letting out of these properties is the main objective of the company as laid out in its Memorandum of Association and the entire income of the company as per its return of income accepted by the Assessing Officer comprises of income from letting out of such properties, such income would be assessable as “Profits and gains of business or profession.”

Further, in case of Rayala Corporation (P) Ltd. v. Asstt. CIT (2016) 386 ITR 500, the Supreme Court held that since the business of the company is to lease out its property and earn rent therefrom, the rental income earned by the company is chargeable to tax as its business income and not income from house property.

Applying the rationale of above rulings if the main objective of the company is to hold the properties and earn income by letting out of the properties, the income from letting out of properties would be chargeable to tax as “Profits and gains of business or profession”.

Question 2

A Hindu undivided family owns a property which has been let out to a firm carrying on business. The family is a partner of the firm through its Karta. No rent has been charged by the HUF from the firm for use of the premises by the firm. The Assessing Officer, however, has taxed the family on the notional income from property based on municipal valuation. Is this decision justified?

Answer

Under section 22, the annual value of a property is chargeable to tax under the head “Income from house property” in the hands of the owner. However, this section specifically excludes property occupied for the purposes of own business or profession of the assessee, the profits of which are chargeable to income-tax. In CIT v. Shri. Champalal Jeevraj (1995) 215 ITR 289 (Mad), it was observed that where the Karta of the HUF is a partner in the firm in his representative capacity and the firm occupied a portion of the house belonging to the HUF, the benefit of exclusion under section 22 was available to the HUF. Hence, the income from the said property shall not be chargeable to tax under the head “Income from house property”. Therefore, in this case, the action of the Assessing Officer is not correct.

Question 3

In the following cases, examine under which head of income the receipt would be assessed- (a) Anirudh let out his property to Abhinav. Abhinav sublets it. How is sub-letting receipt to be

assessed in the hands of Abhinav?

(b) Anish has built a house on a leasehold land. He has let-out the above property and has considered the rent from such property under the head "Income from other sources" and deducted expenses on repairs, security charges, insurance and collection charges in all amounting to 50% of receipts.

Answer

(a) Sub-letting receipt is to be assessed as “Income from Other Sources” or as “Profits and gains of business or profession” in hands of Mr. Abhinav, depending upon the other facts and circumstances of his case. It is not assessable as income from house property, since one of the conditions for assessing an income under this head is that the assessee should be the owner of the property i.e. owner of the building and/or the land appurtenant thereto. In this case, since Abhinav is not the owner of the house property, sub-letting receipt cannot be assessed under the head “Income from house property”.

(b) Since Anish is the owner of the property (building), in this case, the receipt would be assessable as “Income from house property”. The ownership of land is not a pre-requisite for assessment of income under this head. 30% of Net Annual Value would be allowed as a deduction under section 24.

Question 4

Rajesh owns a house in Hyderabad. During the previous year 2020-21, 3/4th portion of the house was self-occupied and 1/4th portion was let out for residential purposes at a rent of

` 12,000 p.m. The tenant vacated the property on February 28^th 2021. The property was vacant during March, 2021. Rent for the months of January 2021 and February 2021 could not be realised in spite of the owner’s efforts. All the conditions prescribed under Rule 4 are satisfied.

Municipal value of the property is ` 4,00,000 p.a., fair rent is ` 4,40,000 p.a. and standard rent is

` 4,80,000. He paid municipal taxes @10% of municipal value during the year. A loan of

` 30,00,000 was taken by him during the year 2011 for acquiring the property. Interest on loan paid during the previous year 2020-21 was ` 1,48,000. Compute Rajesh’s income from house property for the A.Y. 2021-22.

Answer

There are two units of the house. Unit I with 3/4th area is used by Rajesh for self-occupation throughout the year and no benefit is derived from that unit, hence, it will be treated as self-occupied and its annual value will be nil. Unit 2 with 1/4th area is let-out during the previous year and its annual value has to be determined as per section 23(1).

Computation of Income from house property of Mr. Rajesh for the A.Y. 2021-22

Particulars `

Unit I (3/4^th area – self-occupied)

Annual Value Nil

Less: Deduction under section 24(b)

3/4th of ` 1,48,000 1,11,000

Income from Unit I (self-occupied) (1,11,000)

Unit II (1/4th area – let out)