Vildirect: IncomeTax-caselaws-2010-VIL-880-KAR-DT

2010-VIL-880-KAR-DT

Equivalent Citation: [2010] 322 ITR 116 (Karn)

KARNATAKA HIGH COURT

784 and 785 of 2009

Date: 07.01.2010

COMMISSIONER OF INCOME-TAX AND ANOTHER

MYSORE INTERCONTINENTAL HOTELS P. LTD.

M. V. Seshachala for the appellant.

BENCH

D. V. SHYLENDRA KUMAR and N. ANANDA JJ.

JUDGMENT

The judgment of the court was delivered by

1. D. V. SHYLENDRA KUMAR J.— These appeals by the Revenue filed under section 260A of the Income-tax Act, 1961, are directed against the order dated June 23, 2009, passed by the Income-tax Appellate Tribunal in I. T. A. No. 1412/Bang/2008, for the assessment year 2004-05 and I. T. A. No. 1412/Bang/2008, for the assessment year 2005-06 respectively.

2. The Revenue is aggrieved by this order whereunder the Tribunal was of the view that the income as returned by the assessee for these two assessment years particularly, the income attributable to the renting out of premises fitted with some fittings to make it suitable for a tenant to use it as an office premises for carrying on software business activities, should he apportioned in the ratio of 60 : 40 in respect of the income assessable under the head "Income from house property" and the income assessable under the head 'Income from business or profession" etc., white the assessing authority was of the view that such income attributable to the premises should be brought to tax under the head "Income from house property" and "Income from other sources" at about 90 per cent, and 10 per cent. respectively.

3. The first appellate authority' had affirmed this view but the Tribunal had instead indicated under the impugned order that it should be apportioned at 60 per cent. under the head "Income from house property" and 40 per cent, under the head "Income from business or profession".

4. Aggrieved by this redetermination of tax liability by the varied manner of apportionment of the income, the Revenue is in appeals before us.

5. The submission of Sri Seshachala, learned senior standing counsel appearing for the Revenue is that the Tribunal should not have disturbed the view taken by the assessing authority and as affirmed by the first appellate authority; that the law in this regard is reasonably well settled and while the view taken by this court in one such matter is that the income attributable to the facilities should be taken at 15 per cent. and the balance 85 per cent. should be taken as income under the head "House property" the Tribunal has varied the percentage of apportionment and therefore the order is bad in law.

6. Learned senior standing counsel for the Revenue places reliance on the decision of this court in the case of CIT v. Shankaranarayana Hotels P. Ltd. reported in [1993] 201 ITR 138 (Karn); [1993] 109 CTR (Karn) 196 and also on the reported judgment of the Supreme Court in the case of East India Housing and Land Development Trust Ltd. v. CIT reported in [1961] 42 1TR 49 to submit that in a situation where the facility purpose is not substantial, the entire income should be taken as the income under the head "House property".

7. We find that neither the judgment relied upon by the learned senior standing counsel is attracted nor relevant for the present case, as up to what percentage of the income received by way of rent or by any other name, which is a composite amount received in respect of the business the facilities provided in the building should be apportioned either under the head "Income from house property" or under the head "Other sources" or even under the head "Business income" is a question depending on the facts and circumstances of each case and, in our opinion, it does not give rise to question of law of substantial importance.

8. That apart, in the present case, if the Tribunal was of the view that the income assessable under the head "Income from house property" should be taken at 60 per cent, of the composite amount received, having regard to the terms and conditions indicated in the agreement between the parties and if for the facilities provided 40 per cent. of the amount is apportioned, we do not think we can interfere in such findings, which is essentially a finding of fact, in an appeal under section 260A of the Act.

9. Even with regard to the shifting of the income from the head "Other sources" to the head "Business" though is a question of law that again is a question rightly answered by the Tribunal for the reason that the assessee itself is carrying on business in hotel industry. The income has to be assessed only under the head "Business" and not under the head "Other sources" with or without furniture and fittings and when the assessee makes a profit out of it.

10. The Tribunal has rightly answered this question in favour of the assessee and against the Revenue, for the reason that when the assessee is having an income under the head "Income from business or profession", 40 per cent. income even from out of total amount received under the agreement does not get into the head "Other sources" as this gets exhausted under the head "Income from business or profession" and therefore, we do not find any question of law on the first aspect or any question of law wrongly decided on the second aspect of changing the heads of income, warranting an interference in this appeal.

11. Therefore, these two appeals are dismissed at the admission stage itself.

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