REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6455-6460 OF 2017 (ARISING OUT OF SLP(C) NO(S). 17277-17282 OF 2015)

RAJ DADARKAR & ASSOCIATES .....APPELLANT(S)

VERSUS

ACIT – CC-46 .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The substantial questions of law which have been raised by

the appellant  in  these appeals,  which  were also the questions

before  the  High  Court  on  which  High  Court  has  rendered  the

impugned judgment, are the following:

“(1)   Whether in the facts and circumstances of  the case, and in law, the Tribunal erred in holding that the appellant was owner of the shopping centre within the meaning  of  Section  22  read with  Section  27  of  the Income Tax Act, 1961?

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(2)   Whether  in  the  facts  and circumstances  of  the case, and in law, the Tribunal was right in holding that the income earned by the appellant from the shopping centre  was  required  to  be  taxed  under  the  head “income  from  House  Property”  instead  of  the  head “Profits and Gains from the Business or Profession” as claimed by the Appellant?

(3)  Whether on the facts and circumstances of  the case, and in law, the order of the Tribunal, confirming the action of the Respondent, is perverse inasmuch as the  same  is  based  on  surmises,  conjectures  and suspicions by taking into account incorrect, irrelevant and extraneous consideration while ignoring relevant materials and considerations?”

2) Few facts  giving  the  background in  which  aforesaid  questions

have arisen for consideration, may first be taken note of.  These

are recapitulated hereinafter:  

The  Maharashtra  Housing  and  Developing  Authority

(“MHADA”) had constructed buildings known as Shyam Sunder

Cooperative  Society,  Ram  Darshan  Cooperative  Society  and

Sindhu  Cooperative  Society  at  Jariwala  Compound  Market,

Opposite  Navjivan  Post  Office,  Lamington  Road,  Mumbai  –

400088.  However, there was a reservation for  Municipal  retail

market on the plot on which MHADA had put up the construction.

Therefore, MHADA handed over the ground floor [stilt portion] of

the above said buildings and admeasuring around 17,925 sq. ft.

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(hereinafter  referred  to  as  the  “market  portion”)  to  Market

Department of Municipal Corporation Greater Bombay (“MCGB”).

This  land  was  acquired  by  the  MCGB  from  the  MHADA  by

recovering the necessary cost.

3) In  1993,  the  Market  Department  of  the  MCGB  auctioned  the

market portion on a monthly license [stallage charges] basis to

run  municipal  market.   The  appellant  firm  participated  in  the

auction to acquire the right to conduct the market on the market

portion.   The  appellant  was  the  successful  bidder  and  was

handed over  possession of  the market  portion  on  28.05.1993.

The  terms  and  conditions  subject  to  which  the  appellant  was

given  the  said  market  portion  to  run  and  maintain  municipal

market contained in the terms and conditions of the auction dated

11.03.1993.  The premises allotted to the appellant was a bare

structure, on stilt, that is, pillar/column, sans even four walls.  In

terms of the auction, it was the appellant who had to make the

entire premises fit to be used a market, including construction of

walls, construction of entire common amenities like toilet blocks,

etc.   Accordingly, after  taking possession of  the premises,  the

appellant  spent  substantial  amount  on  additions/alternations  of

the entire premises,  including demolishing the existing platform

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and,  thereafter,  reconstructing  the  same according  to  the  new

plan sanctioned by the MCGB.   [Rs.  1,83,61,488/-  spent  from

Financial  Year  1993-1994  to  2001-2002]   The  appellant

constructed 95 shops and 30 stalls of different carpet areas on

the premises under the market name “Saibaba Shopping Centre”.

The  appellant  also  obtained,  in  terms of  the  conditions  of  the

auction, necessary registration certificate for running a business

under  the  Shop  and  Establishment  Act  and  other

licenses/permissions  from  MCGB  and  other  Government  and

semi-Government bodies for carrying on trading activities on the

said premises.  The appellant firm was responsible for day-to-day

maintenance,  cleanliness and upkeep of  the  market  premises.

The  appellant  also  had  to  incur/pay  water  charges,  electricity

charges, taxes and repair charges.   

Essentially,  the  appellant  collected  the  following  types  of

receipt from the sub-licensees:

(a) Compensation  from sub-licensees  [same  rate  of  stallage

charges and on the same terms and condition as given to

the appellant the MCGB].

(b) Leave & License fees.

(c) Service  Charges  for  providing  various  services,  including

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security charges, utilities, etc.

4) The appellant filed the returns of income and right from the year

1999 till 2004, it had been offering the income from the aforesaid

shops and stalls sub-licensed by it under the head “Profits and

Gains of  Business or  Profession” of the Income Tax Act,  1961

(hereinafter  referred  to  as  the  ‘Act’).   The  income  was  also

assessed accordingly.  However, the case of the appellant for the

Financial  Year 1999-2000 was reopened by the respondent by

issuing notice under Section 148 of the Act and in response to the

same the appellant  filed  its  return  on 12.12.2003.   Thereafter,

notice  under  Section  143(2)  of  the  Act  dated  10.01.2005  was

issued and served by the respondent.  Reassessment order was

framed,  computed  the  income  from the  shops,  and  the  stalls

under  head  “Income  from  House  Property”  of  the  Act.   The

reasons given by the respondent for so computing the income

under the head “Income from House Property” were:

(i) By virtue of Section 27(iiib) of the Act, the appellant was

“deemed  owner”  of  the  premises  as  it  had  acquired

leasehold right in the land for more than 12 years;

(ii) In  agreements  for  sub-licensing  the  words  “lease

compensation”  were  used  instead  of  “license  fees”  and

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deposits were referred as “sub-lease deposits”.  Further, in

some  correspondence,  like  loan  application,  etc.,  the

words, “lease” were used;

(iii) Property tax has been levied on the appellant.

Accordingly, the respondent held that the income received

by  the  appellant  from  the  market  stalls  was  assessable  as

“Income from House Property” under the Act.   

5) Being  aggrieved  by  the  above  mentioned  reassessment  order

dated  29.03.2005,  the  appellant  filed  an  appeal  before  the

Commissioner  of  Income  Tax  (Appeals)  [“CIT  (Appeals)”]  on

13.04.2005.   The  CIT  (Appeals)  allowed  the  appeal  of  the

appellant  and  reversed  the  action  of  the  respondent  on

30.12.2005.  Aggrieved by the order dated 30.12.2005 of the CIT

(Appeals),  the  respondent  as  well  as  appellant  filed  appeals

before  the  Income  Tax  Appellate  Tribunal  (“ITAT”).   The  ITAT

reversed the order of the CIT (Appeals) and confirmed the action

of  the  Assessing  Officer  vide  its  decision  dated  10.09.2009.

Being aggrieved by the order of the ITAT, the appellant preferred

an  appeal  before  the  High  Court.   The  High  Court,  by  the

impugned order dated 19.09.2014, dismissed the appeal filed by

the appellant.

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6) It  is  this  judgment  of  the  High  Court  against  which  present

appeals, via Special Leave to Appeal, have been filed.   

7) The learned counsel  for  the appellant  submitted that  the High

Court,  or  for  that  matter  the  ITAT,  committed  grave  error  in

approaching  the  entire  matter  from  an  erroneous  angle.

Referring to the discussion contained in the impugned judgment,

the learned counsel pointed out that the High Court confined its

discussion only on one aspect viz. as to whether the appellant

was  ‘deemed  owner’  of  the  properties  in  question  within  the

meaning of Section 27(iiib) of the Act and after holding it to be so,

it  treated  the  income  as  “income  from house  property”.   The

learned counsel argued that the entire focus of the High Court

was on the aforesaid aspect and, in the process, it  was totally

ignored that the main business of the appellant was to take the

premises on rent and to sub-let those premises.  Thus, sub-letting

the premises was the business of the appellant firm and income

earned, as a result, was the business income.

8) In order to support the aforesaid contention, Mr. Agarwal, learned

counsel for the appellant, referred to the deed of partnership firm

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of  appellant  which  was  constituted  on  02.04.1993  under  the

provisions of Indian Partnership Act.   He referred to the object

clause of the firm as per the partnership deed, which reads as

under:

“The Partnership shall take the premises on rent and to sub-let or any other business as may be mutually agreed by the parties from time to time.”

According  to  him,  it  was  in  furtherance  of  the  aforesaid

object  that, as a business activity, the appellant participated in

the auction held by a Market Department of the MCGB.  Thus, the

sole  intention  of  the  appellant  was  to  establish  a  retail  hub

wherein various small retailers could come together and carry on

their  business in  an organised and systematic  manner.  Thus,

sub-licensing the premises was only a part of this predominant

object of the appellant.  This was the sole and the only activity of

the appellant.  The appellant, being a partnership firm, maintained

full and complete records of these business activities.  Right from

the  year  1999  till  2004,  the  appellant  had  been  offering  the

income from the shops and stalls  sub-licensed by it  under  the

head “Profits and Gains of Business or Profession” of the Act.   

9) Mr. Maninder Singh, learned Additional Solicitor General, on the

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other hand, refuted the aforesaid arguments by referring to the

order of the Assessing Authority and submitted that the appellant

had argued before the Assessing Officer that it was not the lessee

of  the  market  area  but  was  only  a  licensee  and,  therefore,

deeming provisions of Section 27(iiib) of the Act would not apply.

This argument was rightly rejected by the Assessing Officer.  He

also  referred  to  the  order  of  the  ITAT which  had  specifically

repelled  the  argument  that  this  income was  business  income.

Therefore, no question of law arises for determination.   

10) We have considered the aforesaid submissions of counsel for the

parties in the light of legal provisions contained in the Act.  We

may remark  at  the  outset  that  it  is  not  in  dispute  that  having

regard to the terms and conditions on which the leasehold rights

were taken by the appellant in auction, constructed the market

area  thereupon  and  gave  the  same  to  various  persons  on

sub-licensing basis, the appellant would be treated as deemed

owner of these premises in terms of Section 27(iiib) of the Act.

We may point out that the High Court took note of the provisions

of Section 27(iiib) as well as Section 269UA(f) of the Act which

reads as under:

“Section 27(iiib)  -  a person who acquires any rights

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(excluding any rights by way of a lease from month to month or for a period not exceeding one year) in or with respect to any building or part thereof, by virtue of any such transaction as is referred to in clause (f) of section 269UA, shall  be deemed to be the owner of that building or part thereof;

Section 269UA(f) - "transfer",—

(i) in relation to any immovable property referred to in sub-clause (i) of clause (d), means transfer of such property by way of sale or exchange or lease for a term of not  less than twelve years,  and includes allowing  the  possession  of  such  property  to  be taken or retained in part performance of a contract of  the  nature  referred  to  in  section  53A  of  the Transfer of Property Act, 1882 (4 of 1882).

Explanation.—For the purposes of this sub-clause, a  lease  which  provides  for  the  extension  of  the term thereof  by  a  further  term or  terms shall  be deemed to be a lease for a term of not less than twelve years, if the aggregate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years ;

(ii) in relation to any immovable property of the nature referred to in sub-clause (ii) of clause (d), means the doing of anything (whether by way of admitting as a member of or by way of transfer of shares in a co-operative society or company or other associa- tion of persons or by way of any agreement or ar- rangement  or  in  any  other  manner  whatsoever) which has the effect of transferring, or enabling the enjoyment of, such property.”

11) Thereafter, the High Court pointed out the circumstances under

which the Market Department of MCGB had auctioned the market

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area wherein the appellant was the successful tenderor; the BMC

permitted sub-letting of the shops and stalls in stilt  portion; the

appellant  was  permitted  to  carry  out  additions  and  alterations

which he did;  the manner  in  which  the appellant  after  making

necessary constructions sub-licensed to various types of traders

etc.   On that  basis,  the High Court  concluded that  reading of

various clauses harmoniously as per which the rights were given

to  the  appellant  in  the  said  property,  pointed  out  towards  the

appellant acquiring rights in or in respect of the building or part

thereof, which rights were clearly traceable to Section 269UA(f) of

the Act.   

12) As  pointed  out  above,  the  aforesaid  conclusion  is  not  even

disputed  by  the  learned  counsel  for  the  appellant.   The

submission was, as noted above, even if the appellant is deemed

owner of the premises in question, since the letting out the place

and earning rents therefrom is the main business activity of the

appellant,  then  the  income  generated  from  sub-licensing  the

market area and earned by the appellant should be treated as

income from business and not income from the house property.

His submission was that the dominant test has to be applied and

once it  is found that dominant intention behind the activity was

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that of a business, the rental income would be business income.

In support, Mr. Agarwal referred to the following two judgments:

(i) Chennai Properties and Investments Limited, Chennai

v. Commissioner of Income Tax Central III, Tamil Nadu

& Anr., (2015) 14 SCC 793.

(ii) Rayala  Corporation  Private  Limited  v.  Assistant

Commissioner of Income Tax, (2016) 15  SCC 201.

13) Before dealing with the respective contentions, we may state, in a

summary form, scheme of the Act about the computation of the

total income.  Section 4 of the Act is the charging Section as per

which  the  total  income  of  an  assessee,  subject  to  statutory

exemptions,  is  chargeable  to  tax.   Section  14  of  the  Act

enumerates five heads of income for the purpose of charge of

income tax and computation of total income.  These are: Salaries,

Income from house property, Profits  and  gains  of  business  or

profession,  Capital  gains  and  Income  from other  sources.   A

particular  income, therefore,  has to be classified in one of  the

aforesaid heads.  It is on that basis rules for computing income

and  permissible  deductions  which  are  contained  in  different

provisions of the Act for each of the aforesaid heads, are to be

applied.  For example, provisions for computing the income from

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house property are contained in Sections 22 to 27 of the Act and

profits and gains of business or profession are to be computed as

per the provisions contained in Sections 28 to 44DB of the Act.  It

is also to be borne in mind that income tax is only One Tax which

is levied on the sum total of the income classified and chargeable

under the various heads.  It is not a collection of distinct taxes

levied separately on each head of the income.  

14) There may be instances where a particular income may appear to

fall in more than one head.  These kind of cases of overlapping

have frequently arisen under the two heads with which we are

concerned in the instant case as well, namely, income from the

house  property  on  the  one  hand  and  profits  and  gains  from

business on the other hand.  On the facts of a particular case,

income  has  to  be  either  treated  as  income  from  the  house

property  or  as  the  business  income.   Tests  which  are  to  be

applied for determining the real nature of income are laid down in

judicial decisions, on the interpretation of the provisions of these

two heads.   Wherever  there is  an income from leasing out  of

premises and collecting rent, normally such an income is to be

treated  as  income  from house  property,  in  case  provisions  of

Section 22 of the Act are satisfied with primary ingredient that the

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assessee is the owner of the said building or lands appurtenant

thereto.  Section 22 of  the Act  makes ‘annual  value’ of  such a

property  as  income  chargeable  to  tax  under  this  head.   How

annual value is to be determined is provided in Section 23 of the

Act.  ‘Owner of the house property’ is defined in Section 27 of the

Act which includes certain situations where a person not actually

the owner shall be treated as deemed owner of a building or part

thereof.  In the present case, the appellant is held to be “deemed

owner” of the property in question by virtue of Section 27(iiib) of

the Act.  On the other hand, under certain circumstances, where

the  income  may  have  been  derived  from  letting  out  of  the

premises, it can still be treated as business income if letting out of

the premises itself is the business of the assessee.   

15) What is the test which has to be applied to determine whether the

income would be chargeable under the head “income from the

house property” or it would be chargeable under the head “Profits

and gains from business or profession”, is the question.  It may

be mentioned, in the first instance, that merely because there is

an entry in the object clause of the business showing a particular

object,  would  not  be  the  determinative  factor  to  arrive  at  a

conclusion  that  the  income  is  to  be  treated  as  income  from

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business.   Such  a  question  would  depend  upon  the

circumstances of  each case.   It  is  so held by the Constitution

Bench of this Court in Sultan Bros. (P) Ltd. v. CIT, (1964) 5 SCR

807 and we reproduce the relevant portion thereof:

“7. … We think each case has to be looked at from a businessman's point  of  view to find out whether the letting was the doing of a business or the exploitation of his property by an owner. We do not further think that a thing can by its very nature be a commercial asset. A commercial asset is only an asset used in a business  and  nothing  else,  and  business  may  be carried on with practically all things. Therefore, it is not possible  to  say that  a  particular  activity  is  business because it is concerned with an asset with which trade is commonly carried on. We find nothing in the cases referred, to support the proposition that certain assets are commercial assets in their very nature.”

16) In view thereof, the object clause, as contained in the partnership

deed,  would  not  be  the  conclusive  factor.   Matter  has  to  be

examined on the facts of each case as held in Sultan Bros. (P)

Ltd. case.  Even otherwise, the object clause which is contained

in  the partnership  firm is  to  take the premises  on rent  and to

sub-let.  In the present case, reading of the object clause would

bring out two discernible facts, which are as follows:

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(a) The  appellant  which  is  a  partnership  firm is  to  take  the

premises on rent and to sub-let those premises.  Thus, the

business  activity  is  of  taking  the  premises  on  rent  and

sub-letting them.

In  the  instant  case,  by  legal  fiction  contained  in

Section  27(iiib)  of  the  Act,  the  appellant  is  treated  as

“deemed owner”.

(b) The aforesaid clause also mentions that  partnership firm

may take any other business as may be mutually agreed

upon by the partners.

17) In the instant case, therefore, it is to be seen as to whether the

activity in question was in the nature of business by which it could

be said that income received by the appellant was to be treated

as income from the business.  Before us, apart from relying upon

the aforesaid clause in the partnership deed to show its objective,

the learned counsel for the appellant has not produced or referred

to  any  material.   On  the  other  hand,  we  find  that  ITAT had

specifically adverted to this issue and recorded the findings on

this aspect in the following manner:

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“26. …On this issue facts available on record are that the assessee let out shops/stalls to various occupants on a monthly rent.  The assessee collected charges for minor repairs, maintenance, water and electricity. As  per  the  terms  of  allotment  by  the  BMC,  the assessee was bound to incur all these expenses.  The assessee,  in  turn,  collected  extra  money  from  the allottees.  The assessee collected 20% of monthly rent as service charges.  Such service charges were also used  for  providing  services  like  watch  and  ward, electricity,  water  etc.   This  in  our  opinion  was inseparable from basic charges of rent.  The assessee has made bifurcation of the receipt from the, occupiers of the shops/stalls as rent and service charges.  As rightly  held  by  the  Assessing  Officer,  decision  of Hon’ble  Supreme  Court  in  the  case  of  Shambu Investment  Pvt.  Ltd.,  263  ITR  143  will  apply.   The assessee has not established that he was engaged in any  systematic  or  organized  activity  of  providing service to the occupiers of  the shops/stalls so as to constitute the receipts from them as business income. In  our  opinion,  the  assessee  received  income  by letting out shops/stalls; and therefore, the same has to be held as income from house property.”

18) The ITAT being the last forum insofar as factual determination is

concerned, these findings have attained finality.  In any case, as

mentioned above, the learned counsel for the appellant did not

argue on this aspect and did not make any efforts to show as to

how the aforesaid findings were perverse.  It was for the appellant

to produce sufficient  material  on record to show that  its  entire

income or substantial income was from letting out of the property

which was the principal  business activity of  the appellant.   No

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such effort was made.

19) Reliance placed by the appellant on the judgments of this Court in

Chennai  Properties  &  Investments  Ltd. and  Rayala

Corporation  (P)  Ltd. would  be  of  no  avail.   In  Chennai

Properties & Investments Ltd. where one of us (Sikri, J.) was a

part of the Bench found that the entire income of the appellant

was through letting out of the two properties it owned and there

was no other income of the assessee except the income from

letting out of the said properties, which was the business of the

assessee.  On those facts, this Court came to the conclusion that

judgment of this Court in  Karanpura Development Co. Ltd.  v.

CIT, (1962) 44 ITR 362 was applicable and the judgment of this

Court in East India Housing and Land Development Trust Ltd.

v. CIT, (1961) 42 ITR 49 was held to be distinguishable.  In the

present  case,  we  find  that  situation  is  just  the  reverse.   The

judgment in East India Housing and Land Development Trust

Ltd. which would be applicable which is discussed in para 8 of

Chennai  Properties  &  Investments  Ltd. case  and  the

reproduction  thereof  would  bring  home  the  point  we  are

canvassing:

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“8. With this background, we first refer to the judgment of  this  Court  in East  India  Housing  and  Land Development Trust Ltd. case [East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 (SC)] which has been relied upon by the High Court. That was a case where the company was incorporated with  the  object  of  buying  and  developing  landed properties  and  promoting  and  developing  markets. Thus,  the  main  objective  of  the  company  was  to develop  the  landed  properties  into  markets.  It  so happened  that  some  shops  and  stalls,  which  were developed by it, had been rented out and income was derived from the renting of the said shops and stalls. In  those  facts,  the  question  which  arose  for consideration was: whether the rental income that is received was to be treated as income from the house property or the income from the business? This Court while  holding  that  the  income  shall  be  treated  as income from the house property, rested its decision in the context of the main objective of the company and took note of the fact that letting out of the property was not the object of the company at all.  The Court was therefore,  of  the  opinion  that  the  character  of  that income which was from the house property had not altered  because  it  was  received  by  the  company formed with the object  of  developing and setting up properties.”

20) In Rayala Corporation (P) Ltd., fact situation was identical to the

case of  Chennai  Properties & Investments Ltd. and for  this

reason,  Rayala  Corporation  (P)  Ltd.  followed  Chennai

Properties & Investments Ltd., which is held to be inapplicable

in the instant case.   

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21) For  the  aforesaid  reasons,  we  are  of  the  opinion  that  these

appeals lack merit and are, accordingly, dismissed with cost.

............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; MAY 09, 2017.

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ITEM NO.1C           COURT NO.7            SECTION IIIA (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS C.A. Nos.6455-6460 of 2017 (Arising out of SLP (C) Nos. 17277-17282 of 2015) (Arising out of impugned final judgment and order dated 19/09/2014 in ITA No. 588/2012, ITA No. 713/2012, ITA No. 720/2012, ITA No. 721/2012, ITA No. 722/2012 and ITA No. 723/2012 passed by the High Court of Bombay) RAJ DADARKAR & ASSOCIATES              ... Appellant(s)

VERSUS ACIT - CC-46                           ... Respondent(s) Date : 09/05/2017  

This  matter  was  called  on  for  pronouncement  of judgment today. For Petitioner(s)

Mr. Bhargava V. Desai, Adv.                       For Respondent(s)

Mrs. Anil Katiyar, Adv.                       

Hon'ble  Mr.  Justice  A.  K.  Sikri  pronounced  the judgment  of  the  Bench  comprising  His  Lordship  and Hon'ble Mr. Justice Ashok Bhushan.

The appeals are dismissed in terms of the signed reportable judgment.

             (Nidhi Ahuja)       (Mala Kumari Sharma)      Court Master      Court Master

[Signed reportable judgment is placed on the file.]

Civil Appeal Nos.                  of 2017 (@ SLP (c) Nos. 17277-17282 of 2015) Page 21 of 21