Annual Letting Value of house property under section 23(1)(a) of Income Tax Act, 1961

In respect of properties where restriction under Rent Control Act is not applicable, the annual letting value has got to be determined after taking into consideration various factors and the standard rent or Municipal valuation may be adjusted after taking into account such factors.

IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES, ‘B’, MUMBAI

BEFORE SHRI M A BAKSHI, VICE PRESIDENT (THIRD MEMBER)

I T A No: 5262/Mum/2006 Assessment Year: 2000-01

I T A No: 5263/Mum/2006 Assessment Year: 2002-03

I T A No: 5264/Mum/2006 Assessment Year: 2003-04

Mumbai (PAN: AAACB3478L)

Date of Hearing: 04.06.2009

Date of Pronouncement: 06.07.2009

O   R   D   E   R

The appeals of the Revenue, for the assessment years 2000-01, 2002-03 and 2003-04, involving common issue, were heard by the “B” Bench of the Tribunal. However, since there was difference of opinion amongst the Members constituting the Bench, a Reference was made to the Hon’ble President under section 255(4) of the Income Tax Act, 1961, for referring the points of difference to the Third Member. The Hon’ble President has nominated me as Third Member for adjudication of the following points of difference: –

“i) Whether on the facts and circumstances of the case and in law a different view can be taken from the view taken already by a different Bench in the case of the assessee itself?

ii) Whether on the facts and in the circumstances of the case, the standard rent fixed under the Rent Control Act can be adopted as annual value while computing the income from the property for the assessment years 2000-01, 2002-03 and 2003-04 in the case of the assessee?”

2. The issue involved in these appeals is relating to determination of the annual letting value of the let out property.

3. I have heard the parties and perused the record. Though the relevant facts have been described by the learned Members constituting the Bench, I would, for the sake of coherence and ready reference, refer to the basic facts relevant to the issue on hand. The assessee, in the returns of income filed for the assessment years 2000~01, 2002-03 and 2003-04, had disclosed annual letting value of the property on the basis of actual rent received. The Assessing Officer was of the view that the property in question had been let out by the assessee to Foster Wheeler, a foreign company, from August 1998 to July 1999 “h at a monthly rent of Rs.1,12,500/-. Thereafter, from 15′ October 1999, the same property was let out to Deutsche Bank AG for a monthly rent of Rs.1 0,000/- after taking interest free deposit of Rs.30.00 lakhs and bank guaranty of Rs.62.00 lakhs. In other words, for the assessment year 2000-01 the property had been let out at a monthly rent of Rs.1,12,500/- for first four months and for the last five and half months the same property had been let out at a’ monthly rent of Rs.1 0,000/- after accepting interest free deposit. The property had subsequently been let out to Bombay Stock Exchange with effect from 1st of October 2001 on a monthly rent of Rs.6,500/- after accepting interest free deposit of Rs.32.00 lakhs. The assessee was asked to explain the discrepancy in the monthly rental of the property. It was claimed that the property had been let out at a higher rent for the reason that the foreign company based in UK was not ready to give any deposit. Moreover the company was desperate to take the property on rent. The rent paid by the foreign company was not the real expected rental value of the property. The property had been let out to Deutsche Bank AG for a monthly rent of Rs.1 0,000/- after taking interest free deposit of Rs.30.00 lakhs. Subsequently, even the Rs.1 0,00.0./- rent was not offered by any tenant, as a result of which the assessee had to let out the property at a monthly rent of Rs.6,500/- after taking the interest free deposit of Rs.32.0o. lakhs. It has further been brought to the notice of the Assessing Officer that the Municipal valuation of the property was Rs.38,860/- only per annum and since the actual rent received was more than the Municipal valuation, the annual value of the property has been adopted on the basis of actual rent received under section 23(1 )(a) of the Act. The Assessing Officer was not satisfied with the explanation of the assessee. He accordingly adopted the annual letting value of the property at Rs.13.5o.,o.o.o./- on the basis of rent of Rs.1,12,500/- received by the assessee for the four months in the previous year relent to assessment year 2000-0.1. For the subsequent years also the same annual letting value of the property has been adopted by the Assessing Officer.

4. The CIT(A), relying upon the decision of the Hon’ble Bombay High Court in the case of CIT vs. J K Investors (Bombay) Ltd.. (20.0.1) 248 ITR 723 (Bom), held that notional interest on the interest free deposit was not to be taken into account in working out the annual letting value of the property in so far as the Municipal valuation of the property was’ less than the actual rent received. He accordingly accepted the annual value of the property as declared by the assessee.

5. When the matter came up in appeal before the Tribunal, the learned Judicial Member found that similar issue had come up before the Tribunal in assessee’s own case for the assessment year 20.01-0.2 and the Tribunal had remanded the issue back to the Assessing Officer in ITA No: 2452/Mum/2004 vide order dated 31st of December 2007, for determination of the standard rent and if the standard rent was found to be lower than the actual rent received then the actual rent received was to be adopted as the annual letting value of the property. The learned Judicial Member, following the said order of the Tribunal in assessee’s own case for the assessment year 2001-02, has directed the Assessing Officer to determine the standard rent and if the same is found to be lower than the actual rent received then the actual rent received should be adopted as annual letting value. The learned Judicial Member has also referred to the decision of the Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. vs. CIT (2007) 295 ITR 466 (SC), to support the view that when there is a precedent of the Coordinate bench, the same is required to be followed. In the aforementioned decision of the Hon’ble Supreme Court, it was found that the Tribunal had not considered the earlier precedent, which constituted a mistake apparent from record and was to be rectified when brought to its notice.

6. The learned Accountant Member has however not agreed with the learned Judicial Member that the earlier order of the Tribunal was to be followed on the facts and in the circumstances of this case. It has been pointed out by the learned Accountant Member that the property in question was not subject to Rent Control Act and accordingly the Municipal rateable value or the standard rent was not required to be adopted as the annual letting value of the property. According to the learned Accountant Member in this case it was necessary to determine the fair rental value of the property in accordance with the provisions of section 23(1)(a) of the Income Tax Act, 1961; According to the learned Accountant Member, since the property had been let out at a higher rent in earlier year, the same was a guiding factor for determination of the annual letting value of the property for the years under appeal. He has accordingly opined that the value adopted by the Assessing Officer on the basis of rent received by the assessee in earlier year and part of the previous year relevant to assessment year 2001-02 has rightly been adopted as the foundation for determination of the annual letting value.

7. In regard to the finding of the learned Judicial Member that the earlier order was required to be followed, the learned Accountant Member has relied upon the decision of the Tribunal in the case of Napar Drugs (P) Ltd. vs. DCIT (2006) 98 ITO 285 (Del) (TM) to support the view that the Tribunal can deviate from the decision of the Coordinate Bench in case there is ample justification for the same. According to the learned Accountant Member, in case there are some new facts brought on record or in case the Coordinate Bench has failed to consider certain important aspects which if considered could have changed the decision, the Tribunal can deviate from the decision of the Coordinate Bench. He has accordingly expressed a different view in regard to the determination of the annual letting value of the property as stated earlier. The learned Accountant Member has also referred to the decision of the Hon’ble Supreme Court in the case of Motichand Hirachand, AIR 1968 SC 441, wherein the Hon’ble Supreme Court has laid down certain guidelines for determination of the annual letting value of the house property. Reference has also been made to the decision of the Hon’ble Patna High Court in the case of Kashi Prasad Kataruka vs. CIT (1975) 101 ITR 810 (Pat) to support the finding that the Municipal valuation could be altered on the basis of material on record. Reference has also been made to the decision of the Tribunal in the case of ITO vs. Makrupa Chemicals (P) Ltd. (2007) 108 ITO 95 (Mum) to support the finding that the rateable value determined under the Municipal Law is not binding on the Assessing Officer if it can be shown that the rateable value determined under Municipal Laws does not represent the correct fair rent. According to the learned Accountant Member, since the property was not subject to restrictions under the Rent Control Act for the relevant assessment years, the fair rental value will not be limited to the standard rent. According to the learned Accountant Member, the assessee had reduced the rent after taking interest free deposits and that huge interest free deposits had obviously been taken to deflate the monthly rent. According to the learned Accountant Member the deposit taken are not normal security deposits, which generally is limited to a few months’ rent. The learned Accountant Member has agreed with the Assessing Officer thafthe assessee has adopted a colourable devise to reduce the rental value of the property.

8. Before me, the learned counsel for the assessee contended that he was not disputing that the property in question was not subject to Rent Control Act in the relevant assessment years. It was contended that there are several cases to support the view that even where the Rent Control Act is not applicable, the annual letting value has got to be determined on the basis of the Municipal rateable value or standard rent. Reference has been made to the decision of the Hon’ble Calcutta High Court in the case of CIT vs. Satya Co. Ltd. (1997) 140 CTR (Cal) 569, It was pointed out that in this case the Hon’ble High Court has held that unless the actual rent received is higher, the annual letting value under section 22 read with section 23 of the Act has to be fixed with reference to Municipal valuation as increased by one ninth thereof. Reliance has also been placed on the decisions of the Hon’ble Bombay High Court in the case of CIT vs Akshay Textiles Trading & Agencies (P) Ltd. (2008) 304 ITR 401 (Bom) and that in the case of CIT vs. J K Investors (Bombay) Ltd. (2001) 248 ITR 723 (Bom) to support the contention that the notional interest on the advance received from the tenant cannot be taken into account in determination of the actual rent received. Reference has also been made to the decision of the Bombay Bench of the Tribunal in the case of J K Investors (Bombay) Ltd. vs. OCIT (2000) 74 ITO 274 (Bom) to the same effect. The learned counsel further pointed out that the facts for the assessment year 2001-02 are on same facts. The Assessing Officer had adopted the annual letting value of the property at RS.13,50,0001-. However, the Tribunal did not approve of the assessment made by the Assessing Officer and had restored the issue to his file for working out the standard rent in accordance with law and for adopting the same as the annual value of the property. It was contended that once a decision has been taken by the Tribunal on an issue, the same has got to be followed by the Coordinate Bench as there is no difference in facts. In case the Coordinate Bench feels any error in the judgment of the earlier Bench, then the option open to the Coordinate Bench is to make a Reference to the Hon’ble President for constituting a Larger Bench. It was contended that the learned Accountant Member has not chosen the option of making a Reference to the Hon’ble President for constitution of the Special Bench. He was therefore bound to follow the earlier order of the Tribunal. Reliance has been placed on the decision of the Hon’ble Bombay High Court in the case of CIT vs. Thana Electricity Supply Ltd. (1994) 206 ITR 727 (Born) with particular reference to Page No.728, 734. 735 and 738 of the Report. It was accordingly pleaded that the earlier order of the Tribunal may be followed as followed by the learned Judicial Member.

9. The learned Departmental Representative, on the other hand, contended that the earlier order of the Tribunal is not always binding upon the Coordinate Bench. It was pointed out that earlier Bench of the Tribunal has committed a mistake in ignoring the fact that the property in question was not subject to Rent Control Act and therefore the annual letting value could not be restricted to the standard rent. Reference was made to the decision of the Hon’ble Supreme Court in the case of Director of settlements, AP and Others vs. M R Apparao and Another (2002) 4 sec 638 to support the claim that the decision of the Coordinate Bench was not always binding. Reference was also made to the decision of the Hon’ble Bombay High Court relied upon by the learned counsel for the assessee in the case of CIT vs. Thana Electricity Supply Ltd. (1994) 206 ITR 727 (Bom). The learned DR submitted before me that the property in question falls in exempt category under the Rent Control Act and therefore the value was to be determined on the basis of the fair rent. Reliance was placed on the following decisions to support the contention: –

(1)        liquidator, Mahmudabad Properties Ltd. Vs. CIT (1972) 83 ITR 470 (Cal)

(2)        State of Bombay Vs. Pandurangi AIR 1953 SC 244 at 246

(3)        Shiela Kaushish Vs. CIT (1981) 131 ITR 435 (SC)

(4)        Amolak Ram Khosla vs. CIT (1981) 1311TR 589 (SC)

(5)        CIT Vs. M R Alagappan(1987) 1,64 ITR 690 (Mad)

(6)        ITO Vs. Makrupa Chemicals (P) Ltd. (2007 108 ITD 95 (Mum)

(7)        ACIT vs. Mayur Recreational & Development Ltd. (2008) 113 ITD 181 (Del) (SB)

Reliance was also placed on the decision of the Tribunal in the case of Napar Drugs (P) Ltd. vs. DCIT (2006) 98 ITD 285 (Del) (TM) to support the view expressed by the learned Accountant Member that the earlier order of the Tribunal was not binding as the same was decided on the presumption that Rent Control Act was applicable in the present case. It was further contended that the Assessing Officer has adopted a fair rent of the property on the basis of the actual rent received by the assessee in earlier year and therefore the same was reasonable and bound to be adopted.

10. I have given my careful consideration to the rival contentions. The first issue, in my view, to be addressed in this case is as to the determination of annual letting value of the house property in accordance with the provisions of section 23(1 )(a) of the Act. Once that .issue is decided, then it will be easy to decide the second issue as to whether the earlier order of the Tribunal in assessee’s own case was necessarily to be followed or not.

11. Since the controversy revolves around section 23 of the Act, I reproduce the same as under: –

“Annual value how determined.

23.(1) For the purposes of section 22, the’ annual value of any property shall be deemed to be-

(a)        the sum for which the property might reasonably be expected to let from year to year; or

(b)        where the property or any part of the property is let and the actual rent received or receivable by the owner in respect thereof is in excess of the sum referred to in clause (a), the amount so received or receivable; or

……………………………………………………………………………”

It is evident from the plain reading of section 23 of the Act; that the annual letting value of the house property is first to be determined on notional basis as the amount at which the property might be expected to be let from year to year. It is settled law that where the property is subjected to Rent Control Act, the fair market rent should not exceed the standard rent. This position is well settled and reference can usefully be made to the decisions of the Hon’ble Supreme Court in reference to Shiel a Kaushish (supra) and Amolak Ram Khosla (supra). Reference may also be made to the decision of the Hon’ble Supreme Court in the case of Motichand Hirachand, AIR 1968 SC 441. In this case their Lordships of the Hon’ble Supreme Court held that in certain circumstances extraneous circumstances may deflate the fair rent. Hon’ble Supreme Court has laid down, the following principle of law: –

“It is well recognized principle in rating that both gross value and the net annual value are estimated by reference to the rent at which the property might reasonably be expected to let from year to year. Various methods of valuation are applied in order to arrive at such hypothetical rent, for instance, by reference to the actual rent paid for the property or for others comparable to it or where there are no rents by reference to the assessments of comparable properties or to the profits carried from the property or to the cost of construction”

12. The Hon’ble Bombay High Court in the case of J K Investors (Bombay) Ltd. (supra) has also laid down the following principles of law: –

“At the cost of repetition, it may be mentioned that under section 23(1)(a), the Assessing Officer has to decide the fair rent of the property. While deciding the fair rent, various factors could be taken into account. In such cases various methods like the contractors’ method could be taken into account’.

Reference may also be usefully made to the decision of the Bombay Bench of the Tribunal in the case of J K Investors (Bombay) ‘Ltd. vs. DCIT (2000) 74 ITO 274 (Bom). The Tribunal has made the following observation: –

“Since the amount of deposit was refundable, it was nobody’s case that the security deposit as such was to be treated as rent received or receivable. It could not be denied that the assessee was in a position to derive an advantage by getting the deposit. That might be an important consideration while determining the notional value under section 23(1)(a)”.

This decision of the Bombay Bench of the Tribunal was upheld by the Hon’ble Bombay High Court in (2001) 248 ITR 723 (Bom). So however, the issue as to whether the notional interest can be taken into account in determination of the fair rental value under section 23(1 )(a), was left open by the Hon’ble High Court. Since the Bombay High Court has not reversed or adversely commented upon the observation of the Bombay Bench of the Tribunal in the case of J K Investors (Bombay) Ltd. (supra), the view expressed by the Tribunal would be relevant for consideration in determining the fair rental value of the property which is not subject to Rent Control Act.

13. It may be relevant to reiterate that the learned counsel for the assessee has fairly conceded before me that the property in question was not subject to Rent Control Act in the relevant assessment years. It may also be pertinent to mention that the Rent Control Act applicable in Maharashtra has certain exceptions carved out in respect of which the restrictions under the Rent Control Act would not be applicable. For the relevant assessment years under appeal before the Tribunal, the case of the assessee falls under the exceptions, as a result of which restrictions under Rent Control legislation are not applicable. It is in this background the fair rental value of the property has got to be determined. The Revenue authorities as well as the learned Accountant Member have taken into account the actual rent received by the assessee from foreign company from August 1998 to July 1999 as the basis for determination of the fair rental value. The present appeals relate to assessment years 2000-01, 2002-03 and 2003-04. The appeal for the assessment year 2001-02 has already been decided by the Tribunal and the issue has been remanded back to the Assessing Officer for determination of the standard rent to be adopted as the annual letting value for purposes of section 23(1 )(a) and assessing the annual letting value of the property in accordance with the provisions of sections 23(1 )(a) and 23(1 )(b). The learned Judicial Member has not doubted the correctness of the decision of the Tribunal in assessee’s own case for the assessment year 2001-02 and therefore has followed the same and set aside the issue and directed the Assessing Officer to determine the standard rent. However, the learned Accountant Member has pointed out that the earlier Bench of the Tribunal has ignored the important factor in this case in deciding that the annual letting value of the property under section 23(1 )(a) was to be adopted as the standard rent as per Rent Control Act. The fact that the property was not subject to Rent Control Act has not been considered by the Division Bench. The Bombay Bench of the Tribunal in the case of Makrupa Chemicals (P) Ltd. (supra) has analysed the decisions of the Supreme Court and various High Courts and come to the conclusion that the rateable value determined under the Municipal laws is not binding on the Assessing Officer while determining the annual letting value under section 23(1 )(a) of the Act, if it can be shown that the rateable value under the Municipal laws does not represent the correct fair rent. It has further been held that where the property is exempt from Rent Control Legislation, fair rent under section 23(1 )(a) of the Act has to be determined after taking into account various factors which inflate or deflate the rent. In the light of the above decision of the Tribunal and having regard to various decisions of the Hon’ble Supreme Court and various High Courts referred to in the order of the learned Accountant Member and also referred to by me in this order, it becomes abundantly clear that in respect of the properties where restriction under Rent Control Act is not applicable, the annual letting value has got to be determined after taking into consideration various factors and the standard rent or Municipal valuation may be adjusted after taking into account such factors. Therefore, I am inclined to agree with the learned Accountant Member to the extent that the correctness of the decision of the Tribunal In assessee’s own case for the assessment year 2001-02 was doubtful. That being so the question that assumes importance is as to whether the earlier order was binding upon the Coordinate bench. The learned Accountant Member has relied upon the Third Member decision of the Tribunal in the case of Napar Drugs (P) Ltd. (supra) to hold that in certain circumstances the decision of the Coordinate Bench may not be followed. There is no doubt about the well established principle of law that ordinarily the earlier decision of the Coordinate Bench has got to be followed. In case the subsequent Bench doubts the correctness of the decision of the earlier Bench of the Tribunal, it would be appropriate to make a reference to the Hon’ble President for constitution of the Larger Bench for reconsideration of the issue. In this connection reference to the decision of the Bombay High Court in the case of Thana Electricity Supply Ltd. (supra) may be relevant. The Hon’ble High Court at Page 734 of the Report have laid down the following principle of law: –

“Though there is no provision like article 141 which specifically lays down the binding nature of the decision of the High Courts, it is well accepted legal position that a single judge of a High Court is ordinarily bound to accept as correct judgments of courts of coordinate jurisdiction and of the Division Benches and of the Full Benches of his court and of the Supreme Court. Equally well settled is the position that when a Division Bench of the High Court gives a decision on a question of law, it should generally be followed by a co-ordinate Bench of the same High Court. If the coordinate Bench in the subsequent case wants the earlier decision to be reconsidered, it should refer the question at issue to a larger Bench”.

14. The Hon’ble Supreme Court in the case of Mahadeolal Kanodia vs. Administrator General of West Bengal, AIR 1960 SC 936, at Page 941 held as under: –

“Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view, the result, would be utter confusion. The position would be equally bad where a judge sitting singly in the High Court is of opinion that the previous decision of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench”.

15. So however, as held in the case of Napar Drugs (P) Ltd. (supra), there are certain exceptions to the general rule. It would be relevant to refer to Para 50 of the Third Member decision of the Tribunal in the case of Napar Drugs (P) Ltd. (supra) reproduced hereunder, which is based on the decision of the. Bombay High Court in the case of H A Shah & CO. Vs. CIT / CEPT (1956) 30 ITR 618 (Born): –

“50. Thus, from the judgments enumerated in this order, I understand that the decisions of a co-ordinate Bench of the Tribunal do not constitute binding precedent on any subsequent Bench of the Tribunal. At the same time if it is only a case of different opinion being held on the same facts, material and aspects already considered, the subsequent Bench should not proceed on its own to make a contrary decision and instead refer the matter for constitution of a larger Bench. At the same time, it is neither required nor practicable as a rule, to make a reference for constitution of a larger Bench for reason only of different conclusion being reached even when there is qualitative difference as respects issues, facts, evidence and material considered between the earlier Bench and the subsequent Bench. In other words the subsequent Bench is entitled to take a different view of the matter if there is ample justification. In this context, the judgment of Hon’ble Bombay High Court in the case of H.A. Shah & Co. vs. CIT (1956) 30 ITR 618 (Bom) lays down comprehensive guideline. In that case Hiralal A. Shah used to be assessed in the status of an HUF. It was claimed that there was disruption of HUF on 16th April, 1938 and thereafter a partnership firm was constituted The Department did not recognize the disruption and held the view that disruption took place only on 13th Oct., 1943 when the minor son of Hira/al attained majority. The Tribunal by its order dt. 29th Jan., 1952 held that the disruption of the family took place as on 16th April, 1938. For asst. yr. 1941-42 the Department made the assessment holding that Hiralal represented the HUF in the firm. As a result of the acceptance of the disruption of the HUF on an earlier date, the Tribunal held that Mr. Hira Lal was only minor’s trustee. For asst. yrs. 1942-43, 1943-44 and 1944-45, the Tribunal went into the question in much greater detail and held that Hira Lal was a partner in his own right. Thereafter at the instance of the assessee, the following question was referred to Hon’ble Bombay High Court for their opinion:

“Whether in the circumstances of the case, the Tribunal was justified in law in departing from its previous finding that Hiralal was trustee of the minor Vasantlal “

A large number of authorities were cited before the Hon’ble Bombay High Court. The Hon’ble Bombay High Court referred to the judgment in the case of IRC vs. Sleath 17 Tax Cases 149 at 163. “The assessment is final and conclusive between the parties only in relation to the assessment for the particular year for which it is made. No doubt, a decision reached in one year would be a cogent factor in the determination of a similar point in a following year, but I cannot think that it is to be treated as an estoppel binding upon the same party for all years.” Hon’ble High Court found that the principle that each assessment is a different assessment year is not merely helpful to the IT authorities but it is equally helpful to the assessee. Shri N.A. Palkhiwa/a, the eminent counsel for the assessee argued that the Tribunal stood on a different footing from an IT authority not bound by an earlier decision. Reliance was placed by him on a large number of authorities including the statement of the law with regard to ‘res judicata’ appearing in Ha/sbury, Vol. 13, p. 449. Hon’ble Bombay High Court held the view that the cases mentioned in Ha/sbury are cases of a Tribunal dealing with a specific issue which is not likely to arise again. The principle should not have application in relation to the power of one Tribunal to revise or reopen a decision given by another Tribunal in a different assessment. In the words of Hon’ble Court, “IT Tribunals deal with different assessments, and it could not be said that when the first Tribunal gave a decision, the issue was at an end and the question could not be raised again because when a fresh assessment came before the later Tribunal, the question did arise but it arose in a different assessment.” While Hon’ble Bombay High Court held that the second Tribunal was not bound by the decision given by the first Tribunal in a different assessment, the Hon’ble High Court held that it did not mean that it is open to a Tribunal to come to a different conclusion to the one arrived at by that very Tribunal earlier without any limitation whatsoever. Hon’ble Bombay High Court thereafter indicated the limitations upon the right of an IT authority or Tribunal not to be bound by the earlier decision or the right to revise the earlier decision. Hon’ble Bombay High Court have declared the legal position in this regard in the following words:

“…… it seems to us thatthe mere fact that the second Tribunal may look upon the decision of the first Tribunal as erroneous in law would not justify it in coming to a contrary conclusion or reversing the finding of the first Tribunal Nor are we satisfied that in order to enable the second Tribunal to depart from the finding of the first Tribunal it is essential that there must be some fresh facts which must be placed before the second Tribunal which were not placed before the first Tribunal. If the first Tribunal failed to take into consideration material facts, facts which had a considerable bearing upon the ultimate decision, and if the second Tribunal was satisfied that the decision was arrived at because of the failure to take into consideration those material facts and that if these material facts had been taken into consideration the decision would have been different, then the second Tribunal would be in the same position to revise the earlier decision as if fresh facts had been placed before it. On principle there is not much difference between fresh facts being placed before the second and the second Tribunal taking into consideration certain material facts which the first Tribunal failed to take into consideration. It may be said that even though the first Tribunal. may take into consideration all the facts, still its decision may be so erroneous as to justify the subsequent Tribunal in not adhering to that decision. In a case like this, which indeed must be an extreme case, it could be said that the decision of the first Tribunal was a perverse, decision, and if the decision of the first Tribunal was either arbitrary or perverse it would justify the second Tribunal in departing from the decision arrived at by the first Tribunal. Therefore, in our opinion, an earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it had been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision and if the Tribunal giving the earlier decision has taken into consideration all material evidence. We should also like to sound a note of warning, especially with regard to a Tribuna/like the Appellate Tribunal, that it should be extremely slow to depart from a finding given by an earlier Tribunal. Even though the principle of res judicata may not apply, even though there may be no estoppel by record, it is very desirable that there should be finality and certainty in all litigations including litigations arising out of the IT Act. It is not a very satisfactory thing that an assessee should feel a grievance that one Tribunal came to .one conclusion and another Tribunal came to a different conclusion and that the two conclusions are entirely inconsistent with one another. Therefore, the second Tribunal must be satisfied that the circumstances are such as to justify it in departing from the ordinary principles which apply to all Tribunals to try and give as far as possible a finality and. a conclusiveness to the decision arrived at. We should also like to lay down a further limitation upon the power of the Tribunal to revise the decision given earlier by that very Tribunal. The effect of revising this decision should not lead to injustice and the Court must always be anxious to avoid injustice being done to the assessee. “

16. In the present case the earlier Bench of the Tribunal did not consider the fact that the property in question was not subject to Rent Control Act and therefore the annual letting value was not to be restricted to the standard rent as per the Rent Control Act. It is pertinent to mention that the learned Judicial Member did not examine the correctness of the earlier decision of the Tribunal but has followed the same considering it as a binding precedent. As pointed out earlier, it is the duty of the Coordinate Bench to examine the earlier decision of the Tribunal and if a view has been expressed after taking into consideration all the facts and circumstances of this’ case, to follow the same unless its correctness is doubtful in the opinion of the subsequent Bench of the Tribunal. The learned Accountant Member has pointed out the infirmity in the earlier order of the Tribunal, ignoring a material fact which has affected the result of the appeal. I, therefore, agree with the learned Accountant Member that the earlier decision of the Tribunal did not constitute a binding precedent on the facts and in the circumstances of this case. Though in my personal opinion when the earlier decision of the Coordinate Bench is doubted, it is preferable to make a Reference to the Hon’ble President for’ constitution of the Larger Bench, yet in the light of the Third Member decision of the Tribunal in the case of Napar Drugs (P) Ltd. (supra), the Coordinate Bench can deviate from the earlier decision in certain circumstances and since the present case falls in the exceptions, the course adopted by the learned Accountant Member cannot be said to be illegal or highly improper.

17. However, whereas I agree with the learned Accountant Member that in this case the fair rental value was to be determined by considering various factors, I do not agree with him about the quantum of the fair rent determined by the Assessing Officer, which has been approved by the learned Accountant Member. It is pertinent to mention that the Assessing Officer in this case has adopted the rent received by the assessee from non resident company in the previous year relevant to assessment year 2000-01 for a period of four months. Whereas the rent received during any period would be a relevant factor for considering the fair rental value, yet one has to keep in mind various factors which may deflate or inflate the rental value. The Assessing Officer as well as the learned Accountant Member have overlooked vital fact in this case that the same property has been let out at substantially lower rent to Deutsche Bank AG and subsequently to Bombay Stock Exchange. Admittedly, the assessee, apart from the rent received from Deutsche Bank AG and Bombay Stock Exchange, has received interest free deposits from the tenants. As per the decision of the Bombay Bench of the Tribunal in the case of J K investors (Bombay) Ltd. (supra), the benefit derived by the assessee from the interest free deposit could be taken into consideration for determination of fair rental value under section 23(1 )(a) of the Act. In my considered view, the benefit derived by the assessee from the interest free deposit could not be more than the lending rate at which the deposits were available in the market at the particular point of time. Even if that is taken into account, the fair rental value of the property does not work out to the amount determined by the Assessing Officer and confirmed by the learned Accountant Member. I, therefore, partly agree with the learned Accountant Member that the annual letting value in this case cannot be limited to standard rent but I do not agree with him that the fair rent adopted by the Assessing Officer is justified. I partly agree with the learned Judicial Member that the matter has got to go back to the Assessing Officer instead of adopting the value determined by the Assessing Officer. I hold accordingly.

18. Since this case is peculiar in so far as I have partly agreed with learned Accountant Member and partly with learned Judicial Member, I would like to give the following opinion:

That in this case the annual letting value cannot be limited to the standard rent as workable under the Rent Control Act but the fair rental value shall have to be determined. The fair rental value determined by the Assessing Officer however is not reasonable.

The learned Judicial Member had proposed to set aside the order of the Assessing Officer. To that extent I have agreed with him. So however, I have not agreed with him that the standard rent is to be determined and adopted as annual letting value under section 23(1)(a) of the Act.

The learned Accountant Member has held that the standard rent is not to be adopted. I have agreed with him to this extent. So however, I have not agreed with him that the fair rental value has to be adopted as adopted by the Assessing Officer.

The issue shall be set aside and restored to Assessing Officer for determination of the fair rent to be adopted as the annual letting value.

19. The majority view can be formed on the basis of the above decision. So however, in case the Division Bench of the Tribunal considers it difficult to form the majority opinion as per the orders in this case, it is suggested that a Reference may be made to the Hon’ble President for making a further Reference to a Member or Members for resolving the difference of opinion in accordance with law.

Order pronounced on 6th July2009.

REFERENCE UNDER SECTION 255(4) OF THE I TACT 1961

IN APPEALS NOS. 5262 to 5264jMumj06 for AYs 2001-01,02-03 & 03-04 in the case of M/s Baker Technical Services P Ltd

While adjudicating these appeals, both the members have expressed their independent views. We, therefore, make a reference to the Hon’ble President of the Income tax Appellate Tribunal under section 255(4) of the I T Act, 1961, for an appointment of a Third Member or to pass necessary order to adjudicate the following questions of law on a point of difference:

i)       “Whether on the facts and circumstances of the case and in law a different view can’ be taken from the view taken already by a different Bench in the case of the assessee itself?

ii)      Whether on the facts and in the circumstances of the case, the standard rent flxed under the Rent Control Act can be adopted as annual value while computing the income from the property for the assessment years 2000-01,2002-03 and 2003-04 in the case of the assessee.

The Registry is accordingly directed to place this reference before the Hon’ble President for his kind perusal and necessary orders.

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IN THE INCOME TAX APPELLATE TRIBUNAL
“B” BENCH, MUMBAI.

BEFORE S/SHRI R.K. GUPTA, JM & RAJENDRA SINGH, AM

I.T.A. No.: 5262 – 5264/Mum/2006
(Asst .Years 2000-01, 02-03 & 03-04)

2nd Floor, Planet, 10th Turner Rd, Bandra – West, Mumbai – 400 050

Revenue by : Shri PitamQaI Das

O   R   D   E   R

PER BENCH

These are three appeals by the department against the order of ld CIT(A) relating to Assessment Years 2000-01, 02-03 & 03-04. Common issue is involved in these appeals therefore; these appeals are disposed off together.

2. These appeals were originally heard on 2.9.2008 and thereafter, certain clarifications were sought by one of us and the matter was re-fixed for hearing on 17.11.2008. The necessary clarifications were sought from the ld counsel of the assessee and the appeals were taken as heard.

3. Now, these appeals are disposed off in the following manner:

4. The department is objecting in directing the Assessing Officer to assess the House Property Income on actual receipt basis instead of reasonable rent basis ignoring the provision of section 22 and section 23(1)(a) of the I.T. Act, 1961 (the Act).

4.1 The ld Counsel for the assessee stated that for Assessment Year 2001-02 also, the Assessing Officer adopted in a similar manner the Annual Letting Value at Rs.13,50,000/-. The ld CIT(A) confirmed the action of the Assessing Officer. However, on second appeal before the Tribunal, the Tribunal directed the Assessing Officer to compute the Annual Letting Value on the basis of standard rent or Municipal Rateable Value and actual rent received whichever is higher. While directing so, reliance was placed by the Tribunal in the case of Hon’ble Delhi High Court in the case of John Tinson & Co. (P.) Ltd. & Ors. Vs. CIT(A) & Ors. reported in (2007) 207 CTR 423 (Del). It was further submitted that during these years the ld CIT(A) has directed the Assessing Officer to take the actual rent received because the same is higher then the Municipal Rateable Value which is at Rs.38,860j- as certified by Narang Menor Owners Association. Copy of the said certificate was filed before the ld CIT(A). Attention of the Bench was drawn on relevant portions of the order of the Tribunal as well as on the order of the ld CIT(A).

4.2 On the other hand, the ld DR placed reliance on the order of the Assessing Officer.

5. After considering the submissions and perusing the material on record, we find that on identical facts, the AO disallowed the claim of the assessee for A Y 2001-02 also. In that year also, the ALV was taken at Rs. 13.50 lacs. The action of the AO was confirmed by the ld CIT(A). The assessee preferred appeal before the Tribunal. The Tribunal, after considering the submissions and perusing the material decided the issue in ITA No.2452/Mum/04 vide order dated 31.12.2007. The following findings are given in para 6 of its order:

“6. On going through the facts of the case and the material on record, we find that the issue is covered in favour of the assessee by the decision of the Hon’ble Delhi High Court in the case of John Tinson & Co P Ltd cited supra wherein it has been held that the reasonable rent can only be the standard rent and the municipal valuation would in the syntax of present Income Tax Act and the Municipal taxation statutes be synonymous and int4rchangeable with standard rent. It was held that the AO is duty bound to calculate the standard rent of the property u/ s 23 and for this purpose it is incumbent on the· assessee to provide all necessary information and material to the AO so that he can discharge this obligation. It was concluded by the Delhi High Court that the annual value of the property is deemed to be the sum for which it may reasonably be expected to let from year to year or the actual rent, whichever is higher and the AO is duty bound to calculate the standard rent of the property and it is not necessary that the standard rent should be fixed by the rent controller under the Rent Act for which to be taken into reckoning for the purposes of sec. 23. In the case on hand also the standard rent has not been calculated by the AO and in view of the Judicial precedent laid down by the Hon’ble Delhi High Court, we deem it fit and proper to remand the issue back to the file of AO with a direction to calculate the standard rent and if the standard rent is found to be lower than the actual rent received by the assessee to adopt the actual rent as the annual letting value of the property and compute the income accordingly. This ground of appeal is therefore, partly allowed for statistical proposes.”

5.1 The matter was remanded back to the file of the AO to calculate the standard rent and if, the standard rent found to be lower than the actual rent received by the assessee to adopt the actual rent as the annual letting value of the property and compute the income accordingly.

5.2 The facts are identical herein the appeals before us. A query was raised by one of us whether the standard rent is applicable or not in the area where the property of the assessee is situated. The ld counsel of the assessee has stated that the standard rent is applicable and it was submitted that this can be verified. It was further submitted that in view of the rule of consistency the decision of the Tribunal has to be followed in these cases. It was also submitted that the facts in the present case and facts before the Hon ble Delhi High Court are similar. The Tribunal has followed the decision of the Hon’ble Delhi High Court, therefore, the decision of the Tribunal in the case of the assessee itself taken for AY 2001-02 is correct and the same has to be followed.

6. After considering these submissions, we are of the view that in view of consistency, the order of the Tribunal in the case of assessee itself has to be followed. We further found support from the order of the coordinate Bench of the Tribunal at Mumbai in the case of Pratima H Mehta decided in ITA No.2203/Mum/02 for AY 1995-96 vide order dated 25.5.2005. In this case also it was submitted that in view of the decision of the coordinate Bench, the issue has to be decided. Thereafter, the Tribunal by observing the following observations remanded the issue to the file of the AO:

“It is also important to bear in mind that, as held by the Hon’ble Supreme Court in the case of Ambika Praad Mshra vs State of U P (AIR 1980 SC 1762), “every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent” and that “a decision does not looses its authority merely because it was badly argued, inadequately considered or fallaciously reasoned”. In any event, we are in respectful agreement with the views of the coordinate benches.”

6.1 The Honble Supreme Court in the case of Honda Siel Power Products Ltd in 295 ITR 466(SC) has held that “rule of precedent was an important aspect of legal certainty in the rule of law and if prejudice has resulted to the assessee Since the precedent had not been considered by the Tribunal. The Tribunal was Justified in rectifying the mistake on record.

7. In view of the above facts and in view of the precedent and .also in view of the decision of the Apex Court, we are of the view that once a view has already been expressed by the Tribunal that is too in the case of the assessee itself has to be followed. Nothing has been brought on record to controvert the findings of the Tribunal on behalf of the department. Therefore, we direct the AO to recompute the income of the property under the head ‘income from property’ in view of the decision of the Tribunal taken for AY 2001-02. We order accordingly.

8. In the result, the appeals of the department are dismissed.

Pronounced on Nov 2008.

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IN THE INCOME TAX APPELLATE TRIBUNAL
‘B’ Bench, Mumbai

BEFORE SHRI R.K. GUPTA (JM) AND SHRI RAJENDRA SINGH (AM)

ITA Nos.5262, 5263 & 5264/M/2006
(Assessment Years 2000-01, 2002-03 & 2003-04)

2nd Floor, Planet, 10th Turner Rd, Bandra – West, Mumbai – 400 050

 

 O   R   D   E   R

PER RAJENDRA SINGH (AM)

1. I have gone through the order propose by the Learned brother, the J.M. but I am unable to agree with his decision on the issue raised in this appeal. I am therefore writing a separate order. The issue raised in this appeal relates to computation of income under the head “House Property”, Under the provisions of the Income Tax Act, income from house property is computed on the basis of the annual value of the property, The dispute raised is regarding the determination of the annual value.

2. The term ‘annual value’ of a property has been defined in section 23 of the I.T. Act. The provisions of section 23(1) as originally enacted were as under.

23(1) For the purpose of section 22, the annual value of any property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year.

2.1 The aforesaid provisions were amended by the Finance Act 1975 w.e.f. 1.4.76. The amended provisions are as under:

23(1) For the purpose of section 22, the annual value of any property shall be deemed to be as under:

(a)        the sum for which the property might reasonably be expected to let from year to year.

(b)        where the property is let out and annual rent received or receivable by the owner in respect thereof is in excess of the sum referred to in clause (a), the amount so received or receivable.

2.2 In case, the property is covered by the Rent Control Act, it cannot be let for a rent more than the standard rent fixed under the Act. Hon’ble Supreme Court in case of Sheila Kaushik (131 ITR 435) therefore held that in case of properties covered under the Rent Control Act! Standard rent will be the upper limit of the annual value. The case related to pre-amendment period but from 1.4.76, in view of the amended provisions in case, rent received is more than the standard rent it is the actual rent received which would be annual value. But in case, a property is not covered under the Rent Control Act, there is no limitation on the rent for which the property can be let out.

3. Before I proceed to deal with the issue raised, it would be appropriate to give a detailed factual background of the case. The subject property had been let out at a monthly rent of Rs.1,12,500/- to Foster Wheeler, a foreign company from August 1998 to July 1999. Thereafter, from 15th October, 1999, the same property was let out to Deutsche Bank AG for a monthly rent of Rs.l0,000/- after taking interest free deposit of Rs.30 lacs and bank guaranty of Rs.62 lacs. Thus in the assessment year 2000-01, the property had been let out at a monthly rent of Rs.1,12,500/- for first four months and for the last 5 V2 months of the year, the same property had been let out for a monthly consideration of Rs.10,000/- after accepting interest free deposits. The assessee explained to the Assessing Officer that, for the first four months, the property had been let out at a higher rent because Foster Wheeler being a foreign company based in UK was not ready to give any deposit. It was also submitted that subsequently from 1.10.2001 the same property had been let out to Bombay Stock Exchange Ltd. for a monthly rent of only Rs.6500/- after accepting interest free deposit of Rs.32 lacs. It was argued that merely because the property in one year had been let out for a higher rent, it did not mean that the same represented the fair rent. It was also pointed out that the annual rent received was more than the municipal rateable value of the property which was Rs.38,816/- and therefore the same had to be adopted as the annual value.

4. The Assessing Officer did not accept the explanation offered. It was observed by him that the assessee had adopted a colorable device to reduce the annual value of the property by accepting interest free deposit, which was not permitted in view of the judgment of Hon’ble Supreme Court in case of Mc Dowell & Co. Ltd. (154 ITR 148). He also noted that the interest free deposit of Rs.30 lacs received by the assessee had been utilised for giving interest free loans to related persons/ concerns who were incurring losses and, admittedly, recovery of even the principal amount from these persons was doubtful. The assessee thus did not earn any income from the interest free deposit. The Assessing Officer therefore rejected the explanation and computed the annual value of the property on the basis of monthly rent of Rs.112,500/- received in the first four months of the year and assessed the house property income accordingly for A.Y.2000-0l. In subsequent years also, the same annual value had been adopted.

5. In appeal, assessee submitted before CIT(A) that the notional value of interest on the interest free deposits received by the assessee could not be considered as part of annual value or the actual rent received as held by Hon’ble jurisdictional High Court in case of J. K. Investors (248 ITR 723), CIT(A) agreed that the case of the assessee was covered by the judgment of the High Court in case of J K Investors (supra) and accordingly deleted the addition made by the Assessing Officer on account of annual value of property. Aggrieved by the said decision, the revenue is in appeal before Tribunal.

6. At the time of hearing of the appeal, Learned AR for the assessee reiterated the submissions made before CIT(A) and also argued that the case of the assessee was covered by the decision of Tribunal dated 31.12.2007 in assessee’s own case in the assessment year 2001-02 in ITA No.2452jMj2004. The Learned DR on the other hand strongly supported the order of the Assessing Officer. The appeal was again fixed for seeking clarification as to whether the property was covered by the Rent Control Act as the decision of the Tribunal in assessment year 2001-02 (supra) was based on the judgment of Hon’ble High Court of Delhi in case of John Tinson & Co. Pvt. Ltd. & Others (207 CTR 423) which had apparently been rendered in the context of property covered under Rent Control Act. The Learned AR initially stated that the property was covered by Rent Control Act but to a specific query raised as to whether there was any evidence that the property was covered under the Rent Control Act, he had no answer and thereafter could not even make a categorical statement that the property was covered under the Rent Control Act. He only argued that standard rent! municipal rateable value or the rent received whichever is higher has to be adopted as annual value following the judgment in case of John Tinson & Co. (supra).

7. The Tribunal in the A.Y.2001-02 in the case of the assessee following the judgment of Hon’ble High Court of Delhi in case of John Tinson & Co. (supra) directed the Assessing Officer to compute the standard rent under the Rent Control Act and adopt the same as the annual value of the property and in case the standard rent was lower than the actual rent, the latter should be adopted as an annual value, The Tribunal did not gave any reasons as to how the case of the assessee was covered by the judgment in case of John Tinson & Co. (supra). A careful perusal of the judgment in case of John Tinson & Co. (supra) shows that the same had been rendered in the context of property covered under the Rent Control Act. The High Court in the said case following the judgment of Hon’ble Supreme Court in case of Sheila Koushik (131 ITR 435) and some other judgments held that the market rent of the property could not be more than the standard rent and that the standard rent was synonymous to “the sum, for which the property might reasonably be expected to let from year to year”. The High Court also observed that municipal valuation was inter changeable with the standard rent. It is pertinent to point out that the judgment in case of Sheila Koushik (supra) related to a property covered under the Rent Control Act and therefore the Hon’ble Supreme Court in that case held that the fair rent would be the standard rent as the property could not be reasonably expected to get more rent than the standard rent fixed under the Rent Control Act. The Supreme Court also held that in case the standard rent had not been fixed under the Rent Control Act, the standard rent determinable under the said Act would be the fair rent. This was followed by the Delhi High Court in case of John Tinson P Ltd.(supra) in which the High Court observed that the Assessing Officer must be guided by the principles and methodologies laid down in rent laws. It is thus clear from the foregoing discussion that the judgment by the High Court had been rendered in the context of property covered by the Rent Control Act. It appears Tribunal in the A.Y.2001-02 proceeded with the assumption that the property was covered under the Rent Control Act though neither any claim was made nor any finding had been given that the property was covered under the Rent Control Act.

8. In case of properties not covered by the Rent Control Act, the fail rent has to be determined by the Assessing Officer under section 23(1) (a) and in case it is higher than the actual rent, the same has to be adopted as annual value. Fair rent in such cases cannot be limited to the standard rent defined under the Rent Control Act. There is no limitation or the rent for which the property can be let out in such cases. Fair rent it such cases has to be determined after considering the various relevant factors. It may be appropriate at this stage to refer to some of the judgments of High Courts and Supreme Court in this regard.

8.1 The Hon’ble High Court of Mumbai in case of J.K. Investors Ltd (supra) have held that under section 23(1)(a) the Assessing Officer had to decide the fair rent and while doing so various factors should be considered. In that case, the issue was whether notional interest or interest free deposit taken by the assessee could be considered as part of rent received under section 23( l)(b). High Court answered the question in the negative. Though the High Court did not answer the question as to whether the notional interest on the deposit could be taken into account while determining the annual value under section 23(1)(a) as the said issue was not before the High Court, it was emphasised that while determining annual value under section 23(1)(a), various factors have to be taken into account. The relevant observations are reproduced below as a ready reference:

“At the cost of reputation, it may be mentioned that under section 23(1)( a), the Assessing Officer has to decide the fair rent of the property. While deciding the fair rent, various factors could be taken into account. “

8.2 The Hon’ble Supreme Court in case of Smt. Padma Devi (AIR 1962 SC 151) had the following observations to make in relation to reasonableness of rent of a property:

“A bargain between a willing lessor and a willing lessee, uninfluenced by any extraneous circumstances, may afford a guiding test of reasonableness. An inflated or deflated rate of rent based upon fraud, emergency, relationship and such other considerations may take it out of the bounds of reasonableness.”

8.3 In case of Motichand Hirachand (AIR 1968 SC 441), Hon’ble Supreme Court had referred to various factors which can be taken into account in arriving at the annual value. Relevant observations are reproduced below:

“It is well recognised principle in rating that both gross value and the net annual value are estimated by reference to the rent at which the property might reasonably be expected to let from year to year. Various methods of valuation are applied in order to arrive at such hypothetical rent, for instance, by reference to the actual rent paid for the property or for others comparable to it or whelk there are no rents by reference to the assessments of comparable properties or to the profits carried from the property or to the co. of construction. “

8.4 The Hon’ble High Court of Patna in case of Kashi Prasad Kataruk (101 ITR 81) had held that municipal valuation could, be reduced of enhanced only on the basis of material on record to arrive at a reasonable annual value. Relevant observations are reproduced below:

“Taking into consideration the test to be applied in the instant case and even applying the test laid down in the cases which had bee arisen before the various Rent Control Acts had come into force suffice it to say that it had always been presumed that Municipal Valuation afforded an indication as to the reasonable annual letting value of a building which could be rebutted and either reduced of enhanced only on the basis of other materials on record for the purpose of such rebuttal.”

8.5 Recently, the Bombay Bench of the Tribunal in case of Makruk Chemicals Pvt. Ltd. (108 !TO 95) after considering the various judgment: of High Courts and Supreme Court referred to above held vide order dated 5.9.2006 that the rateable value determined under the Municipal ‘law is not binding on the Assessing Officer while determining the annual value under section 23(1)(a). If the Assessing Officer can show that the rateable value under Municipal Laws does not represent the correct fair rent, there he may determine the same on the basis of material/evidence placed on record. The Tribunal also held that in case the property was exempt from rent control legislation, fair rent under section 23(1)(a) has to be determined after taking into account various factors and in case, fair rent was more than the actual rent, the same has to be taken as the annual value. While determining the fair rent, various factors which inflate or deflate the rent have to be taken into account.

9. In this case, the property under consideration is apparently not covered by the Rent Control Act. Perusal of records shows that the assessee at no stage had made any such claim. Even at the time of hearing of the case before the Tribunal on a specific query raised in this regard, Learned AR for assessee could not make even a categorical statement that the property was covered under the Rent Control Act. In case of Makrupa Chemicals (P) Ltd. (supra), which has been referred earlier, it had been pointed out that under section 3(b) of the Maharashtra Rent Control Act 1999, property let out to banks, public sector undertakings, any Corporation established under any Central or State Act, foreign missions, international agencies, manufacturing companies and private or public limited companies having paid up share capital of Rs. 1 crore or more, are exempt from the purview of the Act. The property in this case during the relevant years had been let out to concerns falling under the exempted category. Fair rent in this case, in view of the discussion in the preceding paras, will not be limited to the standard rent. Fair rent under section 23( 1 )(a) in this case will have to be determined after considering a comparable cases if available or other relevant factors and after taking into consideration the factors that inflate or deflate the rent.

10. In this case, in the first four months of the assessment year 2000-01, the property had been let out at a monthly rent of Rs.l,12,00/- but suddenly thereafter from 15.10.99 the property was let out to another tenant on a month rent of only Rs.10,000/- per month after accepting huge interest free deposits. Normally, there is upward revision of rent when premises fall vacant, but in this case there is downward fall by over 90%. There is no material produced by the assessee to show that the rental value of the property had declined so steeply in the market during the later part of the year. The assessee rather explained that the high rent in part of the year due to the fact that the tenant had not given interest free deposit. In other words, the assessee itself admits that lower rent was due to interest free deposits taken. The monthly rent in the latter part of the year had thus been reduced because of the interest free deposit taken which can be easily converted into monthly income. The fair rent of a property is the bonafide letting out value of the property without accepting any other consideration or advantage. The monthly rent of Rs.10,000/- after accepting interest free deposit cannot therefore be taken as the fair rent. The huge interest free deposits had obviously been taken to deflate the monthly rent. The deposit taken are not the normal security deposits which generally are limited to a few month’s rent. It has therefore been rightly point out by the Assessing Officer that it is a case of colourable device to reduce the house property income which is further supported by the fact that the deposit taken had been diverted interest free to connected persons/concerns and the assessee did not pay any tax in relation to any income from the said deposit.

10.1 A clear indication of the true fair rent of the property is available from the rental value of the property in the first four months of the assessment year 2000-01 as the assessee during that period had not taken any deposit or any advantage from the tenant. The assessee’s own case is the best comparable case of the market rent and considering the monthly rent in the first four months of the A.Y.2000-01 and in the absence of any material to justify any sudden steep fall in the rental value to Rs.10,000j- per month immediately thereafter, the Assessing Officer was justified in taking the fair rental value of the property @ Rs.l,12,500/- per month; The CIT(A) was not Justified in accepting the rental value declared by the Assessing Officer as fair rent.

10.2 CIT(A) has given the relief following the judgment of Hon’ble High Court, Mumbai in case of J. K. Investors Ltd. (supra). The said judgment has not been quoted in the correct prospective. In the said case, Hon’ble High Court had only held that notional interest on fixed deposit could not be taken as part of rent received under section 23(1)(b). The High Court had not answered the question as to whether the interest free deposit could be taken into account while determining the annual value under section 23(1)(a) as the said issue was not before the High court. The observation of the CIT(A) that, in view of the said judgment, notional interest on FOR cannot be taken as a part of annual value is therefore not correct. The Assessing Officer in this case has determined the annual value under section 23(1)(a) on the basis of rent received in the assessee’s own case in the earlier part of the year. He has also made out a clear case of a colorable device. CIT(A) failed to consider these aspects and gave relief after misquoting the judgment of High Court (supra). The order of the CIT(A) therefore cannot be sustained.

11. There is, however, another aspect of the issue which is required to be dealt with before concluding the matter. This is regarding the decision of the Tribunal in case of the assessee in assessment year 2001-02 in which the Tribunal directed the Assessing Officer to determine the annual value of the property on the basis of the standard rent fixed under the Rent Control Act. The issue is whether the decision of the Tribunal will be binding on the Tribunal in the other years which are under consideration in this appeal. No doubt, the decision of the coordinate Bench on an issue if taken after considering all the aspects should not be deviated by the subsequent Bench only on the ground that the Bench has a different view in the matter. The decision of the coordinate Bench is definitely an important aspect of certainty in the rule of law as held by the Hon’ble Supreme Court in case of Honda Steel Power Equipment (295 ITR 466). In that case, the Supreme Court held that non consideration of the decision of the coordinate Bench which had been cited before the Bench was a mistake apparent from record in the order of the Tribunal. In the present case, decision of the Tribunal has been considered. There is no ruling to the effect that the decision of the coordinate Bench is binding in all circumstances. This Issue had been specifically considered by the Tribunal in case of Napar Drugs Pvt. Ltd. (98 ITD 285(TM) in which the Tribunal after considering the judgments of Apex Court and several High Courts including the jurisdictional High Court held that the Tribunal can deviate from the decision of the coordinate Bench in case there is ample justification. In case, there are some new facts brought on record or in cases in which the coordinate Bench had failed to consider certain important aspects which if considered, could have changed the decision, the Tribunal can deviate from the decision of the coordinate Bench.

11.1 The Tribunal in the assessment year 2001-02 directed Assessing Officer to adopt standard rent as annual value following the judgment of Delhi High Court in case of John Tinson & Co. (supra) without giving any reason as to how the case of the assessee was covered by the judgment in that case. The Tribunal apparently passed the order in the understanding that the property under reference was covered under Rent Control Act but, as pointed out in earlier part of this order, the property is apparently not covered by the Rent Control Act nor any such claim made before the lower authority nor any evidence produced before the Tribunal despite specific query made in this regard. The fair rent will therefore not be the standard rent. The various judgments of the Apex Court, jurisdictional High Court and the decisions of the Tribunal referred to earlier were also not brought to the notice of the Tribunal in the year 2001-02. The Tribunal also did not consider the case of colourable device made out by the Assessing Officer. Moreover, it may not be possible for the revenue authorities· to determine standard rent as directed by the Tribunal if the property is not covered by the Rent Control Act. Under these circumstances, In my view I the subsequent Bench can deviate Fran the decision of the Tribunal in assessment year 2001-02.

12. In view of the foregoing discussion and for the reasons giver earlier, the order of CIT(A) is set aside and the decision of the Assessing Officer determining the annual value is upheld.

13. In the result, all the appeals of the revenue are allowed.

14. The order was pronounced in open court on 5.01.2009.

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IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH ‘E’ MUMBAI

BEFORE SHRI R K GUPTA, JM & SHRI RAJENDRA SINGH, AM

ITA Nos. 5262 to 5264/Mum/06

(Asst Years 2000-01, 02-03 & 03-04)

O   R   D   E   R

PER R K GUPTA:

These arc three appeals by the department against the order of the CIT(A) relating to assessment years 2000-01, 2002-03 and 2003-04

2. In these appeals of the department, the issue was involved against directing the AO to assess the house property income on actual receipt basis instead of reasonable rent basis, ignoring the provisions of the sec. 22 &. 23(1)(a) of the Act.

3. These appeals were heard originally on 17th Nov 2008. There was difference of opinion among both the members. The learned JM restored the matter to the rile of the AO to pass a fresh order in light or the order or the Tribunal decided for earlier year whereas the learned AM was of the view that the computation made by the AO is correct. The matter was referred to the Third Member. The Third Member disposed off the question referred to him vide order dated 6.7.2009. Now, the appeals are fixed before the regular Bench for deciding the same on the basis of majority view or to send the matter to the Hon ‘ble President for making further reference to Member or Members for resolving the difference of opinion in accordance with law, if the both the Members arc not agreeing with the view expressed by the Third Member.

3.1 The ld counsel of the assessee, who appeared before the Tribunal stated that in view of the view expressed by the Third Member, the appeals may be disposed off. On the other hand, the ld DR also did not object the contention of the Id counsel of the assessee.

4. In view of the above facts and circumstances, we agree with the findings of the Third Member vide his order dated 6.7.2009; accordingly, these appeals arc to be taken as disposed off in view of the decision of the Third Member. The orders of the ld JM and Id AM and the Third Member will be treated as part of this order which arc annexed here with.

5. In the result, the appeals of the department are allowed in part for statistical purpose

Order pronounced on 12th Aug 2009

NF