[1974] 95 ITR 419 (Cal

[1974] 95 ITR 419 (CAL.)

HIGH COURT OF CALCUTTA

Commissioner of Income-tax

Kanak Investments (Pvt.) Ltd.

SABYASACHI MUKHARJI AND S.K. HAZRA, JJ.

IT REFERENCE NO. 62 OF 1967

MAY 9, 1973

B.L. Pal with Ajoy Kr. Mitra for the Commissioner.

Dipankar Gupta with Mrs. Manjula Bose for the assessee.

JUDGMENT

Sabyasachi Mukharji, J.—In this case the following question has been referred to us under section 66(1) of the Indian Income-tax Act, 1922:

"Whether, on the facts and in the circumstances, the Tribunal was right in holding that the composite rent received by the assessee from its tenants should be split up and the amount attributable to the property only should be assessed under section 9(1) of the Indian Income-tax Act, 1922, while the amount attributable to the amenities provided by the assessee to the tenants should be assessed under section 12 of the said Act?"

This question has been referred in respect of the assessment years 1958-59 and 1959-60, for which the corresponding previous years were the calendar years ended on 31st December, 1957, and 31st December, 1958. The assessee is a private limited company owning property at 41, Chowringhee Road, Calcutta, known as Kanak Building, which has been let out to various tenants mostly under agreements of lease. To these tenants, the appellant provided certain amenities in the shape of electric fittings, lift, gas, sanitation, etc. The Income-tax Officer assessed the service charges, namely, charges for amenities provided under section 12 of the Indian Income-tax Act, 1922, and the income from rent under section 9 of the said Act. The relevant clause of the lease provided, inter alia, as follows:

"In consideration of the rent and the covenants on the part of the lessees hereinafter respectively reserved and contained the lessors hereby demise unto the lessees all those the premises described in parts I and II of the schedule hereto to hold the said premises unto the lessees for the term of twenty-six years computed from the first day of June one thousand nine hundred and fifty-eight subject nevertheless to sooner determination in manner hereinafter provided paying, therefore, during the said term a rent computed in manner following, that is to say:

(a) during the period from the first day of June one thousand nine hundred and fifty-eight to the thirty-first day of May one thousand nine hundred and sixty-three a rent of rupees six thousand six hundred and nine and naye paise ninety-five per month; and

(b) during the reminder of the said term of a rent of rupees eight thousand three hundred and sixty-eight and naye paise seventy-five per month, which rent shall at all times be inclusive of the occupier's share of the municipal taxes payable in respect of the demised premises (other than as is hereinafter specifically provided) and also all costs and charges incurred by the lessor including maintenance, cleaning and lighting of the lift, stairs and compound serving the demised premises which costs and charges are estimated at a lump sum of rupees two thousand and five hundred p.m. and shall be payable on or before the seventh of each and every month in respect of the month immediately preceding".

The Appellate Assistant Commissioner held that the service charges as well as the income from the property should be amalgamated and assessed together under section 9 of the Act. Thereafter, there was an appeal to the Tribunal. The Tribunal was of the view that section 9 of the Act referred to the assessment to tax only upon "building or lands appurtenant thereto" and such tax was payable on the bona fide annual value of such buildings or lands. Where the owner got a composite rent for the property and services rendered to the tenants, such composite rent should, according to the Tribunal, be split up and the amount which was attributable to the property only should be assessed under section 9 while the amount which related to the rendition of the services, etc., should be brought to charge under the residual section. The Tribunal for taking this view relied upon the observation of Lord Macmillan in the case of Salisbury House Estate Ltd. v. Fry¹. Upon this the Tribunal has referred the above question mentioned hereinbefore.

It appears from the two subsequent decisions of the Supreme Court that the proper controversy might have been to decide whether the amount received from the tenants could be attributed to either section 10 or section 12. In this connection reference may be made to the decision of the Supreme Court in Sultan Brothers Private Ltd. v. CIT², and the decision of the Supreme Court in the case of Karnani Properties Ltd. v. CIT³. But we are not concerned with that controversy; since the question referred to us is a limited one and since the Tribunal has not found the facts necessary for deciding whether the amount could be apportioned between section 10 and section 12 of the Act which seems to be, according to the aforesaid decisions of the Supreme Court, the appropriate heads under which the amount should be taxed, in our view, we should answer the question, in view of the facts found by the Tribunal in this case, in the affirmative and in favour of the assessee.

The question is, therefore, answered in the affirmative and in favour of the assessee. In the facts and circumstances of the case, each party will pay and bear its own costs.

Hazra, J.—I agree.