IN THE HIGH COURT OF KARNATAKA, BANGALORE PRESENT: THE HON'BLE Mr.JUSTICE N.KUMAR AND. THE HON'BLE Mr.JUSTICE B.MANOHAR

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1 1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 25 TH DAY OF NOVEMBER, 2014 BETWEEN: PRESENT: THE HON'BLE Mr.JUSTICE N.KUMAR AND THE HON'BLE Mr.JUSTICE B.MANOHAR INCOME TAX APPEAL NO.727 OF 2009 M/S.MYSORE INTERCONTINENTAL HOTELS LTD 190, SANKEY ROAD SADASHIVANAGAR BANGALORE R/BY ITS DIRECTOR SRI J P NARAYANASWAMY...APPELLANT (BY SRI.PRAVEEN KUMAR HIREMATH, ADV., FOR K.R.PRASAD, ADV.) AND: THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(2) RASHTROTHANA BHAVAN, OPP RBI BANGALORE...RESPONDENT (BY SRI.K.V.ARAVIND, ADV.) THIS ITA FILED U/S.260-A OF I.T.ACT, 1961 ARISING OUT OF ORDER DATED PASSED IN ITA NO.1344/BNG/2008, FOR THE ASSESSMENT YEAR , PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

2 2 I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN, II. ALLOW THE APPEAL AND SET ASIDE THE ORDER PASSED BY THE ITAT BANGALORE IN ITA NO. 1344/BNG/2008, DATED , IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR HEARING, THIS DAY, N.KUMAR, J., DELIVERED THE FOLLOWING: J U D G M E N T Assessee has preferred this appeal challenging the order passed by the Tribunal treating 60% of his income as income from business and 40% of the rental income as income from house property. The claim of the assessee is that the entire income is to be treated as income from business. 2. Assessee is a private limited company carrying on the business of establishing facilities as are available in an information technology park and providing such facility to IT industry and similar commercial facilities to hotels, commercial complexes in

3 3 an integrated manner, so that the user from whom the assessee derives income can walk in and plug in and commence business operations straight away without doing anything more. In effect, it provides readymade, fully operational infrastructure facilities, so that the business entrepreneur with the necessary expertise can straight away without ado operate its business. 3. The document executed in this regard was styled as a deed of lease. Therefore, the Assessing Authority treated 80% of the rental income as income from house property and 20% of the income as income from other sources. Aggrieved by the said order, assessee preferred an appeal to the Commissioner of Income Tax (Appeals). The First Appellate Authority treated 60% of the said rental income as income from business property and 40% of the income as income from house property. Aggrieved by the said order, assessee preferred an appeal to the Tribunal. The Tribunal has affirmed the said order.

4 4 4. Even the revenue also has preferred an appeal. The Tribunal dismissed both the appeals and affirmed the findings recorded by the First Appellate Authority. It is against the said order, only the assessee preferred an appeal. 5. The substantial questions of law framed in this case at the time of admission are as under: i) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in upholding that only 60% of the total income generated by the facilities provided by the appellant to the users could be taxed under the head profits and gains of business or profession and not 100% of it ii) Whether on the facts and in the circumstances of the case 40% of the entire income generated by the facilities provided by the appellant to the user was not liable to tax under the head profits and gains of business or profession the same was taxable under the head other sources and not under the head house property.

5 5 6. Identical question arose for consideration before this Court in ITA No.73/2014 which was decided on , wherein following the judgment of this Court in the case of Commissioner of Income Tax-III Vs. Velankini Information Systems (P) Limited reported in (2013) 218 Taxman 88 (Karnataka), this Court observed as under: 26. If the intention is to exploit commercial property by putting up construction and letting out for the purpose of getting rental income, then notwithstanding the fact that the furniture and fittings are provided to the lessee, the income from the building fall under the head income from house property. But if the assessee is in the business of taking land, putting up commercial buildings thereon and letting out such buildings with all furniture as his profession or business, then notwithstanding the fact that he has constructed a building and he has also provided other facilities and even if there are two separate rental deeds, it does not fall within the heading of income from house property. Therefore, firstly what is the intention behind the lease and secondly what are the facilities given along with the buildings and documents executed in

6 respect of each of them is to be seen. Thirdly it is to be found out whether it is inseparable or not. If they are inseparable and the intention is to carry on the business of letting out the commercial property and carrying at complex commercial activity and getting rental income therefrom, then such a rental income falls under the heading of profits and gains of business or profession Therefore, what is to be seen is; firstly, what is the intention behind the lease and secondly, what are the facilities given along with the buildings and documents executed in respect of each of them is to be seen and thirdly, it is to be found out, whether it is inseparable or not. If they are inseparable and the intention is to carry on the business of letting out the commercial property and carrying on complex commercial activity and getting rental income therefrom, then such a rental income falls under the heading of profits and gains of business or profession. 8. In the facts of this case, it is clear that the entire construction and the interiors are all done with

7 7 the sole intention of carrying on the business and therefore, the claimant is entitled to treat the entire income as income from business. Merely because the document is styled as lease deed and building is involved, the authorities were not justified in bifurcating the rental income and the business income. 9. In that view of the matter, the impugned orders passed by the authorities require to be set-aside. Accordingly, the substantial questions of law are answered in favour of the assessee and against the revenue and hence, we pass the following; ORDER i) Appeal is allowed. ii) Impugned orders passed by the Appellate Authorities are hereby setaside. The rental income shall be treated as income from the business,

8 8 ie., profits and gains from the business under Section 28 of the Income Tax Act. Sd/- JUDGE GH Sd/- JUDGE