Income Tax Act, 1961

Project Report on Taxation Law

INCOME FROMHOUSE PROPERTY

SUBMITTED TO: SUBIMTTED BY:Mrs.Supreet Gill Sidhu SHUBHAM GOYAL153/119thSemester Section C

ACKNOWLEDGMENT

I owe a great many thanks to a great many people who helped and supported me during the writing of this project.My deepest thanks to our teacher Ms.Supreet Gill Sidhu, for guiding me and correcting various documents of mine with attention and care.She has taken pain to go through the project and make necessary corrections as and when needed.I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.

TABLE OF CONTENTS Introduction1. Chargeability 1.1. Essentials of Section 221.2. Deemed Owner 2. Determination of house property 2.1. Gross Annual Value of House Property3.1.1.Computation of income from a let out house property 3.1.2 Computation of income from self-occupied property 3. Deductions (Section 24)3.1. For Let out House Property3.2. For Self occupied House Property4. Rent 4.1. Arrears of rent received subsequently 4.2. Arrears of rent received in current previous year5. House property jointly owned by two or more persons5.1. Ascertained share5.2. Unascertained share6. Recovery of Unrealized Rent [Section 25AA] 7. Receipt of Arrears of Rent [Section 25B] 8. Bibliography

1. IntroductionSection 4 of the Income tax Act 1961 (Act hereinafter) provides for charge of income tax. However, this section by itself does not create any liability. It has been observed by the Supreme Court in CIT Vs. K. Srinivasan[footnoteRef:1] that although section 4 is the charging section, yet income tax can be charged only when the central Act, which normally is the Finance Act, enacts that income tax shall be charged for any assessment year at the rate or rates specified therein. [1: (1972) 83 ITR 346-351 ]

Every money receipt by a person is not chargeable to tax. Section 14 of the Act specifies five heads of income on which tax can be imposed under the Income tax Act. In order to be chargeable, an income has to be brought under one of these five heads. The heads are (i) salaries (ii) Income from House property (iii) profits and gains of business or profession (iv) capital gains and (v) income from other sources. In the discussion to follow, the relevant provisions of the Act relating to Income from House Property would be considered and how the computation of income from this source is to be made, namely, how the income is to be worked out and what are the deductions to be given for computing the taxable income shall be explained. Sections 22 to 27 of the Act deal with the subject of taxation of income from house property.

Property-the common view In common parlance, property is understood in wide sense. It is not only the thing which is the subject matter of ownership but is taken to mean 'dominon' or right of ownership or even partial ownership. Lord Longdale in John v. Skinner (1836) 5Lg 67-90 (Ch) has described it as the most comprehensive of all the terms which can be used in as much as it is indicative and descriptive of every possible interest which a person can have. However, for purposes of taxation under sections 22 to 27 of the Act, such wider definition of property is not relevant. The income to be taxable should be "Income from House Property".

1.1. CHARGEABILITY (Section 22 of the IT Act 1961)

Section 22 provides for taxation of 'annual value' of a property consisting of any buildings or lands appurtenant hereto, of which the assessee is owner, under the head "income from House Property". Tax imposed under section 22 is a tax on 'annual value' of house property and is not a tax flats, etc. as long as they are not used for business or profession by owner. And the purpose for which the building is used by the tenant is also immaterial. Thus, income from letting out godowns will be taken as income from house property. It does not make any difference at all if the property is owned by a limited company or a firm.

CONDITIONS NECESSARY FOR TAXING INCOME FROM HOUSE PROPERTY

The three essential conditions are: The property should consist of any building or land appurtenant thereto The assessee should be the owner of the property The property should not be used by the owner for the purpose of any business or profession carried on by him, the profits of which are chargeable to tax.

Unless all the aforesaid conditions are satisfied, the on "House Property". However, if a house property is occupied by a taxpayer for the purpose of business or profession carried on by him (the profits of which are chargeable to income tax), annual value of such property is not chargeable to tax under the head 'Income from House Property'.

I.THE PROPERTY SHOULD CONSIST OF ANY BUILDING OR LAND APPURTENANT THERETO

Building means a structure made up of any material (wood, ,mud stones , bricks or concrete) and which can be used a s a dwelling house , store house, office , factory music hall dance hall, theatre, stadium, swimming pool.therefore roof is essential for structure to be regarded as residential building and A structure is a building even if it is for temporary purpose. Roof is not an essential for a structure to be a building as it depends upon the use for which that structure it is to be used. If it is to be used as a stadium or swimming pool, roof is not required where as in other cases roof is important.

II.THE ASSESSEE SHOULD BE THE OWNER OF THE PROPERTY For the purpose of section 22, the concept hitherto understood even in court decisions has been that the owner has to be a legal owner. Annual value of property is assessed to tax under section 22 in the hands of owner even if he is not in receipt of income or even if income is received by some other person. For instance, if a person makes gift of rental income to a friend or a relative, without transferring ownership of the property, annual value of property is taxable in the hands of the donor, even if rental income is received by the donee- S. Kartar Singh v. CIT[footnoteRef:2]. In other words, for the purpose of section 22, the owner must be that person who can exercise the rights of the owner, not on that person who can exercise the rights of the owner, not on behalf of the owner but in his own right-RB. Jodha Mal Kuthiala v. CIT [footnoteRef:3] [2: (1969) 73 ITR 438 (Delhi) ] [3: [1971] 82 ITR 570 (SC).]

However, there has been some refinement in the concept of ownership after the decision of the Surpeme Court in the case of CIT v. Podar Cement(P) Ltd. [footnoteRef:4]In this case, the Supreme Court has expressed the view that under common law 'owner' means a person who has gotvalid title generally conveyed to him after complying with the requirements of law such as the Transfer of Property Act, Registration Act etc. But in the context of Section 22 of the Income tax Act, having regard to the ground realities and further having regard to the object of the Income tax Act, namely, "to tax the income'', 'owner' is a person who is entitled to receive income from the property in his own right. The requirement of registration of the sale deed in the context of section 22 is not warranted. In view of this, where a property is handed over to a purchaser to enjoy fruits of that property by the builder, the purchaser is to be treated as 'owner' of that property even though no registered document has been executed in his favour. [4: (1997) 92 Taxman 541 (SC)/226 ITR 625 (SC).]

Ownership is relevant for the previous year As tax is levied only on the income of previous year, annual value of property, owned by a person during the previous year, is taxable in the following assessment year, even if the assessee is not owner of the property during the assessment year.

DEEMED OWNERSHIP

In the following situations the ownership shall be deemed for taxing income from house property in view of section 27 of the Act: (1) Transfer of house property to Spouse or minor child [Section 27(1)]: if an individual transfers the house property to his spouse or minor child without adequate consideration then that individual (transferor) is deemed owner of that house property i.e., Mr. A transfers house property worth Rs. 50,00,000 to Mrs. A without consideration then Mr. A would be deemed owner of the house property.Exceptions(a) In following cases if property is transferred to spouse then that individual(transferor) is not deemed owner of that house property: Where property is transferred under an agreement to live apart;Where adequate (sufficient) consideration is given by the spouse (transferee). (b) In following cases if property is transferred to the minor child then that individual (transferor) is not deemed owner of that house property. Where property is transferred to a married minor daughter; Where adequate (sufficient) consideration is givenby the minor child.If inadequate consideration is given by the transferee then transferor will be deemed owner of proportionate share i.e., Mr. A transfers house property worth Rs. 50 Lac to Mrs. A and she transfers jewellery/shares worth Rs.25 Lac then Mr. A would be deemed owner of the 50% share of the house property. (2) A holder of impartible estate (Section 27(ii)):The Holder of impartible estate is deemed owner of all the property in the estate. An impartible estate is a property which cannot be divided and to which an assessee succeeds under law e.g..since a temple cannot be divided so any family member succeed to it under law is deemed owner of that temple.(3) A member of a company/co-operative society/A0Ps under House Building Scheme (Section 27(iii)): A- member of a company/co-operative society/AOPs to whom a or a part thereof is allotted or given on lease under House Building Scheme of that company/co-operative society/AOPs is deemed owner of that house property.(4) A person acquiring property under section 53A of the Transfer of Property Act (Section 27(iv)): A person who acquires actual physical possession of an immovable property under section 53A of the Transfer of Property Act, 1882, is deemed owner of that property even if it is not registered in his name. However, following conditions should be fulfilled under section 53A of the Transfer of Property Act, 1882: (i) There should be a written agreement for the transfer of an immovable property between buyer and seller. (ii) The buyer should have paid a part of the consideration and should be ready to pay remaining consideration. Here important fact is that the purchaser is ready to make payment whenever the payment becomes due. [footnoteRef:5](iii) The buyer should acquire actual physical possession of the property. It is enough if transferee has, by virtue of that transaction, a right to enter upon and exercise acts of possession effectively. [footnoteRef:6] [5: [Sushma Rani Bonsai v CIT (2007) 165 Taxman 145 (Del) (Mag.)].] [6: [Authority for Advance Rulings v Jasbir Singh Sarkaria, In Re (2007) 164 Taxman 108 (AAR-New Delhi)].]

(5) A Person having rights In a building under section 269UA(f) of the Income-tax Act (Section 27(v)): If a person acquires a right in a building under section 269UA(f) of the Income-tax Act, 1961 then he is deemed owner of that house property. Section 269UA(f) talks about lease for 12 years where the period of 12 years may be fixed initially or after the extension.Exceptions: In the following exceptional cases, Lessee would not be deemed owner of the house property:(i) If original lease period is less than one year.(ii) If original lease is from month to month. Examples(1) Mr. A, owner of a house property, gives that house property on lease to Mr. B for 20 years at lease rent of Rs20,000 per month. Mr. B becomes deemed owner of the house property. (2) Mr. A, owner of a house property, gives that house property on lease to Mr. B for a period of 6 years at lease rent of Rs20,000 per month. Mr. B has a right to renew the lease for further period of 6 years after the expiry of lease. As aggregate period of lease is more than 12 years therefore, Mr. B becomes deemed owner of the house property. (3) Mr. A, owner of a house property, gives that house property on lease to Mr. B for a period of 11 months at lease rent of Rs20,000 per month. Mr. B has a right to renew the lease for further period of 50 years after the expiry of 11 months. Though aggregate period of lease is more than 12 years but original lease period is less than 12 months therefore, Mr. B is not deemed owner of the house property. (4)Mr. A, owner of a house property, gives that house property on lease to Mr.B for a period of one month at lease rent of Rs.20,000 per month. Mr.B has a right to renew the lease but every time it would be renewed for a period of one month for further period of 50 years. Though aggregate period of lease is more than 12 years but original lease is on month to month therefore, Mr.B is not deemed owner of the house property. Important points: Income from subletting is not taxable under this Head of income as assessee (receiver of rent) is not owner of the house property and it is taxable as either profit or gain of business and profession or as 'income'. If ownership is in dispute in the court of law then : (a) Any person, who receives rent of the house property as owner, in case property is let out, would be assessee for tax under section 22.(b) Any person, who enjoys the possession of the house property as owner, in case property is not let out, would be assessee for tax under section 22.However, once matter is decided by the court then person declared by the court as owner would be assessee for tax under section 22.

III. IT SHOULD NOT BE USED BY THE ASSESSEE FOR HIS OWN BUSINESS OR PROFESSION For a house property to be taxable under this Head of income it should not be used by the assessee for his own business or profession such as office, godown, factory, music hall, dance hall, lecture hall, theatre, stadium or swimming pool. Therefore, if it is used by assessee for himself then it should be used for residential purpose and if it is let out then it can be used by the tenant for residential purpose or for business or profession i.e., commercial purpose (office, godown, factory, music hall, dance once hall, lecture hall, theatre, stadium or swimming pool). Where residential quarters situated in the factory campus were given to employees by the assessee at nominal rent of Rs.100/month, the purpose of letting of the residential quarters is to run the business efficiently and smoothly. Therefore the residential quarters will be treated as house property used by the assessee for his business. Hence, annual value will not be chargeable to tax under this head of income (under Section 22) and rent of Rs.100/month from workers is business income.[footnoteRef:7] [7: [CIT v Delhi Cloth and General Mills Ltd (1966)591TR 152 (P&H)]. ]

Further, where a few rooms in the factory were let out by the company to Government at nominal rent for locating a branch of' nationalized bank, post office, police station, central excise office and railway station quarters for carrying on its business efficiently andsmoothly. It was held that as letting of was incidental to business of the company therefore, annual value will not be chargeable to tax under this head of income (under section 22) and rent is business income of the company[footnoteRef:8] [8: [CIT v National Newsprint and Paper Mills (1978)114 ITR 388 (MP)]. ]

Important Points: Income from house property is not taxable under this head of income (under section22):Income from house property is not taxable under this head of income in the following cases: (a) If it is used by the assessee for his own business or profession i.e., commercial purpose (office, godown, factory, music hall, dance hall, lecture hall. theatre, stadium or swimming pool). (b) If it is let out by the assessee and letting of is incidental to business so that assessee could run its business efficiently and smoothly. Composite rent: Sometimes owner charges rent from tenant not only for the house property but also as service charges/hire charges for various facilities/ plants, machinery, etc. provided with the house. Such total rent is known as composite rent. It can be of two types: (a) Composite rent which include rent for house property and service charges for various facilities provided along with the house such as lift, gas, etc.: Where rent is received by the assessee as rent for house property and also as service charges for various facilities provided along with the house such as gas, lift, water, electricity and ward, air conditioning, etc. then composite rent shall be split up and part of the rent attributable to house property shall be income under this head of income and remaining part of composite rent received for rendering services shall be assessable as income from other sources. (b) Composite rent which Includes rent for house property and hire charges of plant, etc.: Where rent is received by the assessee as rent for house property and also as hire charges for plant, furniture and machinery belonging to owner then composite rent may or may not be separable. (i) Where it is separable: Where letting of property is separable from letting of other assets like plant, machinery and furniture and rent from house property is separable from the hire charges for machinery, plant or furniture then rent for house shall be taxable under this head and remaining composite rent (i.e. hire charges) for plant, machinery and furniture would be taxable either under head "Profit and Gains of Business or Profession" or "Income from Other Sources". (ii) Where it is not separable: Where letting of property is inseparable from letting of other assets like plant, machinery and furniture and rent from house property is not separable from the hire charges for machinery, plant or furniture then whole composite rent shall be taxable either under head "Profit and Gains of Business or Profession" or "Income from Other Sources" and not under the head of "house property". Income from house property in foreign country: Where assessee is resident or resident and ordinarily resident in India and he has property in foreign country then income from such house property from foreign country would be taxable in i the hands of assessee. It is immaterial whether such income is brought into India or not. However, if assessee is not resident in India or resident but not ordinarily resident in India then income from house property situated in foreign country will be taxable in India only where it is received in India during the previous year. Income from house property is not taxable under this head of Income: In following cases income from house property is not chargeable to tax:

(a) Farm House: Income from any building owned or occupied by an agriculturist or receiver of rent or revenue of such land provided that-(i)such building is situated in the agricultural land or the immediate vicinity of agriculture land; and (ii)is used as a dwelling house or a store house or other out-house.(b) Property used by assessee for his own business or profession:Where house property is used by assessee for his own business or profession then property shall be chargeable to tax under head "Profits or Gains from Business or Profession" and not tinder this head of income. (c) Self-occupied house property: Where house property is used by assessee for his own residential purposes then annual value shall be nil. (d) Property for charitable purposes: Where property is used for charitable religious purposes then income from such property is exempted under section 11. (e) Property of Registered Trade Union or Local authority: Where property is held by registered trade union or local authority then income from such property is not taxable.(f) House Property (Palace) of ex-ruler: Where house property is owned by an ex-ruler then annual value of that house property is not taxable.

2. DETERMINATION OF INCOME FROMHOUSE PROPERTY

The determination of 'Annual Value' is important in the context of taxation of income from House Property because though the tax under the head 'Income from house property' is tax on income, yet it is not in that sense a tax on income but upon inherent capacity of such property to yield income and for this 'annual value' is the yardstick. The inherent capacity has been defined as the sum for which the property might reasonably be expected to be let from year to-year. It is not necessary, that the property should be actually let. It is also not necessary that the reasonable return from property should be equal to the actual rent realized when the property is, in fact, let out. Where the actual rent received is more than the reasonable return, it has been specifically provided that the actual rent will be the annual value. Where, however, the actual rent is less than the reasonable rent (e.g. in case where the tenancy is affected by manipulation, emergency, close relationship or such other consideration), the latter will be annual value. The municipal value of the property, the cost of construction, the standard rent if any under the Rent Control Act, the rent of similar properties in the same locality are relevant factors for the determination of the annual value. However, if a property is let and was vacant during any part or whole of the year and due to such vacancy, the rent received is less than the notional rent, such lesser amount shall be the Annual Value. For example, in case of a house, whose municipal valuation is Rs. 24,000/- and actual rent received is Rs. 36,000/- the annual lettable value will be taken at Rs.36,000/-. If the actual rent received is Rs. 18,000/- and municipal valuation is Rs.24,000/-, the annual value would be Rs. 24,000/- for the purpose of the Income-tax Act. Hereif the property was vacant for six months and the rent received is Rs. 18,000/- for six months the Annual Value shall be Rs. 18,000/-. Where the property is subject to Rent Control Act, its annual value under section 23(1) cannot exceed the standard rent (fixed or determined) under the Rent Control Act unless it is actually let out for a higher amount. Such a view has been expressed by the Supreme Court in the cases of Dewan Daulat Rai Kapoor v. NDMC[footnoteRef:9]; Amolak Ram Khosla v. CIT [footnoteRef:10] (SC) & Mrs. Shiela Kaushik v. CIT)[footnoteRef:11]. Thus, [9: (1980) 122 ITR 700 (SC)] [10: (1981) 131 ITR 589 ] [11: (1981) 131 ITR 435 (SC ]

Income from house property = Gross Annual Value Deductions -----------------------------------------------------------------------------------------------------------------------2.1. Gross Annual Value For computing gross annual value, house property can be divided into two types: (1) Let Out House Property [LOHP] [Section 23(1)](2) Self Occupied Residential House Property [SORHP] [Section 23(2)]

(1) Gross Annual Value of Let Out House Property [LOHP][Section 23(1)]In case of let out House Property [LOHP], gross annual value is,(a) Reasonable expected rent or (b) Actual rent received or receivable by the assessee, whichever is higher provided section 23(1)(c) is not applicable. However, section 23(1)(c) is applicable when Actual rent received or receivable by the assessee is less than Reasonable expected rent due to vacancy. (a) Reasonable expected rent is, whichever is higher of the following:(1) Municipal value (2) Fair rent (1) Municipal value: Municipal value is values as assessed by the local authority for imposing municipal taxes.(2) Fair rent: Fair rent is rent of same or similar property situated in same or similar locality. However, two properties can never be similar in every aspect but if property in neighborhood is comparable in some aspect to property in question then rent of such property in neighborhood will be considered to decide Reasonable expected rent.The Supreme Court of India held that Reasonable expected rent cannot exceed standard rent if Rent Control Act is applicable in that area. It means the standard rent is the maximum amount of Reasonable expected rent. [footnoteRef:12] Therefore, Reasonable expected rent is: [12: Sheila Kaushish v CIT (1981) 7 ITR I (SC)]

(1) Municipal value or. (2) Fair rentWhichever is higher subject to the maximum of standard rent if Rent Control Act is applicable.(b) Actual rent received or receivable by the assessee (R): Actual rent received or receivable by the assessee does not include unrealized rent (R2) and rent for the vacant period (R3). Therefore,R= RI -R2-R3. Where,RI = Annual rent for the previous year for which property is let out R2 = unrealized rent R3= rent for the vacant period.

Annual rent for the previous year for which property is let out (RI) "Annual rent means: (a) where the property is let throughout the year ending on the valuation date i.e., the previous year, the actual rent received or receivable by the owner in respect of such year; (b) where the property is let for only a part of the previous year, the amount which bears the same proportion to the amount of actual rent received or receivable by the owner for the period for which the property is let out as the period of twelve months bears to the number of months (including part of a month) for which the property is let out during the previous year. Example 1: If property is let out @ Rs 5,000 pm then annual rent is Rs 60,000. Example 2: A house property is let out for 6 months @ Rs 1.000 p.m. and for 4 months @ Rs 1,500 p.m. It remains vacant for the balance 2 months. The annual rent would be:

Unrealized rent (R2) Rent, which could not be realized by the owner (assessee) because of some dispute with tenant, is known as unrealized rent. It is to be reduced from annual rent if conditions laid down under Rule 4 of Income-tax Rules, 1962 are fulfilled: (i) If tenancy is bona fide.(ii) The tenant is not occupying any other property of the assessee. (iii) All the reasonable steps had been taken by the assessee to get the house property vacated.(iv) All the reasonable steps had been taken by the assessee to institute legal proceedings for recovery of rent and the Assessing Officer is satisfied that legal proceedings would be useless. Rent for the vacant period (R3)If the property remained vacant for some time during the current previous year the rent of the vacant period is to be reduced from annual rent. Example 1: If the property is let out for 12 months @ Rs 5,000 pm and the tenant vacated the property after 10 months or property is let out for 10 months only. Then, Actual rent received or receivable by the assessee (R) = R I -R2-R3 Annual Rent (R1) = Rs 60,000 (Rs 5,000 x 12) Unrealised Rent (R2) = Nil as there is no unrealized rent Rent for vacant period (R3) = 2 10,000 (Rs 5,000 x 2) Therefore, R = Rs 60,000 Rs 10,000 = Rs 50,000 Example 2: A house property is let out for 6 months @ Rs 1,000 p.m. and for 4 months @ Rs 1,500 p.m. It remains vacant for the balance 2 months.Actual rent received or receivable by the assessee (R) = RI -R2-R3The annual rent (R1) =Unrealized Rent (R2) = Nil Rent for vacant period (R3) = Rs 2400/- i.e. (Rs 1200 x 2 as rent for one month is Rs 1200 i.e. 14,400/12) Therefore, actual rent received or receivable = Rs 14,400 Rs 2,400/- = Rs 12,000 When Actual rent received or receivable by the assessee is less than Reasonable expected rent due to vacancy [Section 23(I)(c)]: If following conditions are fulfilled then the Actual rent received or receivable by the assessee (R) would be Annual value of the house property: (i) The property is let out property but whole or any part of the property remained vacant during the whole or any part of the previous year. It is not compulsory that the property should be actually let out during the previous year, the intention to let out is important. Therefore, if the property is held by the assessee for letting out and reasonable efforts are made to find the tenant and assessee could not succeed in letting out then this condition is fulfilled. The words 'property is let' in Section 23(1)(c) do not talk of actual letting out but talk about intention to let out; if property is held by owner for letting out and efforts are made to let it out, that property is covered by this clause [footnoteRef:13] [13: Premsudha Export (P.)Ltd v CIT (2007) 17 SOT 293 (Mum)]

(ii)Actual rent received or receivable by the assessee is less than Reasonable expected rent.(iii)This loss in the rent is only due to vacancy and not due to any other factor. Where loss in rent is partly due to vacancy and partly due to other factors like letting outthe Property at lower rent or unrealized rent then mode of computation is not provided in the Act and it is very clear that intention of the legislature is to give relief to the assessee whose property remained vacant. Therefore, in such situation there are following three possibilities [footnoteRef:14]: [14: CIT v ChandenlalMaganlal (2002) 120 Taxman 38 Guj]

PossibilitiesGross Annual Value of Let Out House Property

1. When Actual rent received or receivable is less than Reasonable expected rent only due to vacancy i.e.,(b) Actual rent receivable by the assessee (R)