Ramit Kochar, Accountant Member - These two appeals, filed by the two different assessee HUF's, being ITA No. 7490/Mum/2012 and ITA no. 7491/Mum/2012, are directed against the two separate order's both dated 08.10.2012 passed by the learned Commissioner of Income Tax - 19, Mumbai (Hereinafter called "the CIT"), for the assessment year 2009-10. We will first take up appeal no ITA No. 7490/Mum/2012 as lead appeal and our decision is ITA No. 7490/Mum/2012 shall apply mutatis mutandis to appeal no ITA No. 7491/Mum/2012 as both the appeal involves identical issue.
2. The Grounds of appeal raised by the assessee HUF in ITA no. 7490/Mum/2012 in the memo of appeal filed with the Tribunal read as under:—
"1. On the facts and in the circumstances of the case and in law, the order passed u/s 263 of the I.T. Act, 1961 is invalid and bad in law.
2. On the facts and in the circumstances of the case and in law, learned CIT erred in passing an order u/s 263 of the I.T. Act, 1961 and that too without giving full and proper opportunity of being heard in the matter.
3. On the facts and in the circumstances of the case and in law, the learned CIT erred in passing an order u/s 263 of the I.T. Act, 1961 and that too without appreciating fully and properly the facts of the case.
4. On the facts and in the circumstances of the case and in law, the learned CIT erred in holding that the order passed by the ITO-19(1)(2) is erroneous and prejudicial to the interest of revenue although the same was neither erroneous nor prejudicial to the interest of revenue.
5. On the facts and in the circumstances of the case and in law, the learned CIT erred in setting aside the order passed u/s 143(3) of the I.T. Act on 26.12.2011 for A.Y. 2009-10 on the issue of assessing the receipts i.e. total receipts of Rs. 65,00,000/- where the assessee's share is 1/3rd, although the same was neither erroneous nor prejudicial to the interest of revenue.
6. On the facts and in the circumstances of the case and in law, the learned CIT erred in setting aside the order passed u/s 143(3) of the I.T. Act on 26.12.2011 for A.Y. 2009-10 on the issue of assessing the receipts i.e. total receipts of Rs. 65,00,000/- where the assessee's share is 1/3rd, and directing the A.O. to pass a fresh order after treating the said income as income other than Capital gain and disallowing the exemption u/s 54EC of the I.T. Act."
3. The Brief facts of the case are that the assessee-HUF filed its return of income on 26th July, 2009 declaring total income of Rs. 91,493/- and the assessment was framed by learned assessing officer (Hereinafter called "the AO") vide orders dated 26.12.2011 under section 143(3) of the Income Tax Act, 1961(Hereinafter called "the Act") assessing the total income of the assessee-HUF at Rs. 1,62,120/-. It was seen by the CIT from the assessment records that during the year under consideration, as per the Tenancy Agreement dated 06.05.2008, the assessee-HUF had received Rs. 53,00,000/- as one time premium from the tenants in respect of immovable property in respect of Block No. D-1 & D-2 on the ground floor of D-Building of Jestharam Baug located on Dr. Ambedkar Road at Dadar, Mumbai of which the assessee-HUF is a co-owner having 1/3rd share in ownership of the property , in consideration of granting tenancy right to the tenants. The said premium is in addition to the rent of Rs. 269/- per month agreed to be paid by the tenants as per the said agreement. Out of amount of Rs. 53,00,000/-, so received, of which the assessee-HUF's share comes to Rs. 17,66,670/- , the assessee-HUF had invested Rs.22,50,000/- in the Rural Electrification Corporation Bond and claimed exemption of an amount Rs. 22,35,000/- u/s 54EC of the Act which was allowed by the AO . In addition a sum of Rs. 12,00,000/- was also received to provide amenities and making some changes as also for repairing, etc. out of which the assessee-HUF's share was of Rs. 4,00,000/-.
4. The CIT was of the view that the aforementioned claim of the assessee-HUF is inadmissible under the Act. The ownership of the property remains with the assessee-HUF as there was no transfer of tenancy right as the property was let out to the tenants as a monthly tenancy as per the agreement dated 6.5.2008 , retaining the Right of termination of tenancy with the landlord. Hence, CIT was of the view that nature of income arising from the transaction is not from Long term capital gain but Income from House Property and the AO has erroneously allowed the exemption u/s 54EC of the Act. Hence, in view of the CIT, assessment order dated 26.12.2011 passed under section 143(3) is erroneous and so far as Prejudicial to the interest of the revenue. A Show cause notice was issued under section 263 to the assessee-HUF on 16.07.2012 proposing that the assessment order passed under section 143(3) of the Act dated 26.12.2011 be revised u/s 263 of the Act.
5. The assessee-HUF made a written submissions in response to notice u/s 263 of the Act and submitted that assessment order passed by the AO is not erroneous and hence, not prejudicial to the interest of the revenue. The assessee-HUF submitted that the assessee-HUF has 1/3rd share jointly alongwith his brother's HUF in the building known as Jeshtaram Building at Dadar, Mumbai. The building is fully let out and is occupied for commercial as well as residential purpose by the tenants who have occupied its tenancy since last 25 years. The assessee-HUF submitted that they have created tenancy rights in respect of Block No. 1 & 2 on the ground floor of D Building to one Mr. Nanji Kenia and Nailesh Kothari by entering into two separate tenancy agreements dated 6th May, 2008 for Rs. 26,50,000/- each. Both these agreements were registered and stamp duty of Rs. 132500/- was paid on each document. In addition as sum of Rs. 12 lakhs was received for carrying out addition/alteration in the said flats. The assessee-HUF submitted that during the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act conducted by Revenue, the question of taxing these receipts as income from other sources was raised by the AO and the same was replied in detail vide letter dated 07.12.2011, which was acknowledged by the ITO on 08.12.2011 and the same is on record with the Revenue. Thus, the Assessee- HUF in nutshell submitted that the order passed u/s 143(3) of the Act on 26th December, 2011 is neither erroneous nor is prejudicial to the interest of revenue and merely because the CIT is of different opinion the same cannot be reversed. The AO has taken one of the two possible views with which the CIT does not agree. The view taken by the AO cannot be treated as erroneous and prejudicial to the interest of revenue. The assessee- HUF submitted that they have granted tenancy right to the new tenants by accepting a one-time Premium which is non-refundable. As such same cannot be taken as one- time Advance Rent simply because it is non-refundable and same cannot be treated as Revenue Income once it is covered u/s. 55(2)(a) of the Act and therefore liable to tax for capital gains tax. The assessee-HUF relied upon decision of Hon'ble Bombay High Court in the case of Cadell Wvg. Mill Co. (P.) Ltd. v. CIT [2001] 249 ITR 265/116 Taxman 77. The assessee-HUF submitted that these agreements being registered agreement on which stamp duty has been paid. The assessee-HUF relied on Mumbai Rent Act, 2000 which provides for termination of the tenancy of the tenant in an event rent of more than 6 months is outstanding.
6. The CIT after considering the submissions of the assessee-HUF held that assessee-HUF has received lumpsum one time premium from tenants for letting out of the property. This payment could either be advance payment of rent or one-time payment in lieu of very low monthly rental charges in future. The assessee-HUF has further claimed the receipt as capital receipt. For the receipt to be capital receipt, there has to be transfer of capital asset and there is need to examine whether the assessee-HUF had affected transfer of Capital asset in lieu of the impugned receipts. The CIT referred to the tenancy agreement para 3 at page 2 which stipulated that, "the landlords have agreed to let out to the tenants the said block as monthly tenants w.e.f. today on following terms and conditions under Maharashtra Rent Act, 2000." However, it was observed by the CIT that right of termination of tenancy has been retained with the landlord as mentioned at para 16 of the 5th page of the agreement dated 06.05.2008 which stipulated that assessee-HUF has simply let out the property without transfer of any right in property except that of occupancy by tenant, whereby there is merely the grant of right of tenancy and there is no transfer of capital assets. Even the right of re-possession has been retained by the assessee-HUF. The income thereof is not a capital gain. Thus, the CIT held that the order of the AO is erroneous in so far as the order is prejudicial to the interest of the revenue and the said receipt must be assessed as income from house property and not capital gain arising from transfer of property. The AO was required to make inquiries during the course of proceedings which was not made. So this is valid ground for CIT to interfere under section 263 of the Act. The CIT held that the view adopted by the AO is not one of the possible view but was erroneous view. Under such circumstances, the revision of view erroneously adopted by the AO is justified and serves the intent behind section 263 of the Act and hence the order passed by the AO is erroneous and prejudicial to the interest of revenue in assessing income as capital gain and allowing the exemption u/s 54EC of Rs. 22,35,000/-. and hence the order passed on 26.12.2011 by the AO u/s 143(3) of the Act for the assessment year 2009-10 is hereby set aside vide orders dated 08.10.2012 passed by the CIT u/s 263 of the Act. The AO was directed by CIT vide orders dated 08.10.2012 passed u/s 263 of the Act to pass fresh orders u/s 143(3) of the Act read with Section 263 of the Act after treating the said income as Income other than Capital Gain and disallowing the exemption u/s 54EC of the Act, after affording sufficient opportunity to the assessee- HUF.
7. Aggrieved by the orders of the CIT dated 08-10-2012 passed u/s 263 of the Act, the assessee-HUF filed appeal before the Tribunal.
8. the assessee-HUF submitted that the assessee-HUF is the co-owner of the property alongwith HUF of Brothers. The CIT invoked section 263 of the Act vide show cause notice dated 16-07-2012 to set aside the order passed under section 143(3) of the Act. The Ld. Counsel of the assessee-HUF submitted that they have transferred tenancy right which is transfer of capital asset and one time premium of Rs. 53 lakhs was received by the assessee-HUF with respect to a property viz. Block No D-1 and D-2 on the ground floor of D-Building of Jestharam Baug located at Dr. Ambedkar Road at Dadar, Mumbai, of which the assessee-HUF is 1/3 co-owner along with HUF of Brother's. The assessee- HUF submitted that the property D1 & D2 was vacant property and tenancy right was transferred vide two agreement's both dated 6.5.2008 for aggregate amount of Rs.53,00,000/-. The assessee-HUF submitted there was transfer of tenancy rights for which 'PAGDI' or 'SALAMI' was received from the tenant's and regular rent is also received apart from the money received on transfer of tenancy rights. The assessee-HUF submitted that long term capital gain earned by the assessee-HUF on transfer of tenancy rights was duly declared and disclosed in the return of income filed with the Revenue and our attention is drawn of return of income and computation of income filed with Revenue which is placed at pages 1-4 of paper book filed with the Tribunal to contend that the assessee-HUF made due disclosure of long term capital gain and exemption u/s 54EC claimed thereof in the return of income filed with the Revenue. The assessee-HUF submitted that during course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the AO has made specific query on the claim of exemption u/s 54EC of the Act which was duly replied by the assessee-HUF vide letter dated 07-12-2011 which was filed before the AO on 08-12-2011 and the relevant extract of the said letter reads as under :
"With reference to the deductions claimed u/s.54EC of the Income Tax Act, 1961 of Rs.22,50,000/-, I have been instructed by my client to submit as under:
1. My client entered in to Tenancy agreement for transfer of tenancy rights for Block No. I and Block No. II on the ground floor of D Building of Jeshtaram Building, Dr. Ambedkar Road, Dadar, Mumbai-400 014. Copies of the agreements are attached . Two agreements were separately executed for Block I and Block II for Rs.26,50,000/- each . In addition to the above a sum of Rs.12,00,000/- was received as regards to the capital expenditure carried out in the two flats. Xerox copy is attached. Please refer to clause 4 on page 3 of the Tenancy agreement wherein it is specifically mentioned that the consideration is one time premium for grant of tenancy of the two blocks. This necessarily a capital receipts as this is a one time premium received for grant of Tenancy. Please refer to clause 5 of the Tenancy agreement which provide for monthly rent for the use of the premises and the tenancy shall be governed by the Maharashtra Rent Control Act,2000 . In the circumstances, under no presumption the receipts for the premises can be treated as income under the head Income from House Property. My client hold 1/3rd share in the above property. Hence, this share worked out to Rs.2235000/-. I am attaching a note as well as some decided judgments in regards to the surrender of Tenancy rights wherein the Judicial Authorities have treated the surrender of Tenancy rights as covered under section 45 of the Income Tax Act, 1961.
2. As regards Rs.1200000/- , I am enclosing a copy of the letter executed wherein the details capital expenditure and amenities provided are listed."
The CIT has held that property has remained with the owners and no asset is transferred and amount should be charged to tax under the head "Income from the House Property" The Ld. Counsel refer to Section 55(2)(a) of the Act which recognizes 'Tenancy right' as capital asset and actual cost of acquisition paid for acquiring tenancy will be deemed to be its cost of acquisition for the purposes of Section 48 & 49 of the Act while in the instant case the cost of acquisition of tenancy right is 'NIL' while the assessee-HUF sold the tenancy rights vide agreement dated 06-05-2008 and received capital receipts being one-time premium for grant of tenancy rights and Section 45 of the Act is applicable and income shall be computed as Income from capital gains chargeable to tax as long term capital gains which was offered for taxation under the head 'Income from Capital Gains'. The assessee-HUF submitted that Rs. 12 lakhs have been received for providing amenities and repairing etc. of the flats for which expenses have been incurred. The assessee-HUF submitted that it has 1/3 share in the said property. The assessee-HUF referred to tenancy agreements dated 06-05-2008 entered into by the assessee-HUF with respect to D-1 an D-2 block in ground floor of Jeshtaram Building , Dr Ambedkar Road, Dadar, Mumbai which are placed at pages 9-27 of paper book filed with the Tribunal. The assessee-HUF submitted that tenancy rights is a capital asset as held by the Hon'ble Supreme Court in the case of CIT v. D.P. Sandu Bros. Chembur (P.) Ltd. [2005] 273 ITR 1/142 Taxman 713 and Hon'ble Bombay High Court in the case of Cadell Wvg. Mill Co. (P.) Ltd. (supra). The assessee-HUF also submitted that in the case of third co-owner Mr. Dushyant P Babode(HUF) with respect to the same transaction being 1/3 co- owner, the CIT(A) has held the transfer of tenancy right as transfer of long term capital asset and brought the same to tax as Income from Capital gains vide orders dated 21.10.2013 which has attained finality and are placed in paper book at page 89-97. The assessee-HUF relied upon the decision of Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83/109 Taxman 66, CIT v. Max India Ltd. [2007] 295 ITR 282/[2008] 166 Taxman 188 (SC) and decision of Hon'ble Bombay High Court in the case of CIT v. Gabriel India Ltd. [1993] 203 ITR 108/71 Taxman 585 and submitted that the AO in the instant case has applied his mind and adopted one of the possible and plausible view which is in-fact a correct view before passing the assessment orders and the CIT cannot substitute his view by invoking provisions of Section 263 of the Act and rather view adopted by the CIT is erroneous view. The assessee-HUF submitted that rent is charged as per Maharashtra Rent Control Act. The assessee-HUF relied upon decision of Hon'ble Delhi High Court in the case of CIT v. Vikas Polymers [2012] 341 ITR 537/[2010] 194 Taxman 57, Hon'ble Bombay High Court in the case of Jewel of India v. Asstt. CIT [2010] 325 ITR 92 and Hon'ble Bombay High Court in the case of CIT v. Ratilal Tarachand Mehta [1977] 110 ITR 71 and submitted the lump- sum payment as received which is the system of PAGDI of SALAMI is capital receipt . The assessee-HUF also releied upon decision of Hon'ble Supreme Court in the case of Durga Das Khanna v. CIT [1969] 72 ITR 796and also whereby the Hon'ble Supreme Court in D.P. Sandu Bros. Chembur (P.) Ltd's case (supra) affirmed inCadell Wvg. Mill Co. (P.) Ltd's case (supra).
9. The Ld. CIT DR submitted that the property is given on rent and CIT has rightly invoked Section 263 of the Act. The AO has not formed any opinion on the issue. No inquiry has been made by the AO and there is no application of mind by the AO while framing assessment u/s 143(3) of the Act on this issue of one time lump sum payment received by the assessee-HUF on transfer of tenancy rights. It is merely the income from renting out of the house property and ld CIT DR relied upon Cadell Wvg. Mills Co. (P.) Ltd's case (supra) & the decision in Arvee International v. Addl. CIT [2006] 101 ITD 495 & Horizon Investment Co. Ltd. decision in ITA 1593/Mum/13 and also upon decision of Malabar Industrial Co. Ltd. (supra) and submitted that there is no application of mind/in- adequate inquiry by the AO . The Ld. CIT DR relied upon decision of Hon'ble Karnataka High Court in the case of CIT v. Infosys Technologies Ltd. [2012] 17 taxmann.com 203/205 Taxman 98 and Hon'ble Supreme Court in the case of Toyota Motor Corpn. v. CIT [2008] 306 ITR 52/173 Taxman 458 and decision in the case of IPCA Laboratories Limited rendered by Hon'ble Bombay High Court and ld. CIT DR submitted that benefit which is not given by law cannot be conferred. On the other hand ld AR submitted that it is simply transfer of tenancy right and he relied upon decision of Hon'ble Bombay High Court in the case of CIT v.Tip Top Typography [2014] 48 taxmann.com 191/[2015] 228 Taxman 244 (Mag.).
10. We have considered the rival contentions and perused the material on record including the case laws relied upon by both the parties. We have observed that assessee-HUF has entered into tenancy agreement dated 06.05.2008 whereby the assessee-HUF has granted monthly tenancy of the property Block D1 and D2 on the ground floor of D building known as Jestharam Baug situated at Dr. Ambedkar Road at Dadar, Mumbai. The assessee-HUF has received Rs. 53,00,000/- alongwith his brothers HUF's who are also co-owners in the said property as one time premium for allotting the tenancy right in the property in which the assessee-HUF has 1/3rd share , which is non-refundable. The tenants are also paying rent of Rs. 269 per month and the tenancy is governed by Maharashtra Rent Control Act, 2000 whereby tenants have protection under the said Maharashtra Rent Control Act, 2000. This tenancy is perpetual and there is no period of expiry of tenancy , whereby landlord does not have power to evict the tenant till the rent's are paid and tenants are not in default in payment of rent. Landlord i.e assessee-HUF cannot terminate tenancy unilaterally if the rents are paid in time by the tenants and the tenants abide by the terms and conditions of the agreement. The landlord i.e. assessee-HUF by giving notice of six months can ask for eviction only in case of default by tenant in payment of rent. However, there are clauses, whereby no subletting is permitted and tenants are not allowed to carry out structural additions in the said premises except with the permission of landlord. In our considered view after the careful reading of the clauses of the tenancy agreement , the assessee-HUF has in-fact allotted the occupancy/tenancy rights in favour of the tenants perpetually and one time premium is charged for the said allottment of tenancy rights perpetually and it cannot be merely stated or equated to be receipt of advance rent as the tenancy granted by the assessee-HUF in favour of tenants is perpetual with protection to tenants under Maharashtra Rent Control Act, 2000 under a registered agreement whereby due stamp duty and registration fee are paid to State Government and no right is retained by the landlord i.e. assessee-HUF for eviction of tenant in perpetually except in the extreme situation of tenants being in default for payment of rent and that too will entail giving notice of six months for eviction/termination of tenancy agreement and hence, in our considered view one time premium received by the assessee -HUF for allotment of tenancy perpetually in favour of tenant is a capital receipts liable for tax under the head 'Income from Capital Gains' u/s. 45 of the Act being capital asset as defined u/s 55(2)(a) of the Act. The property constitute a bundle of rights and transfer by way of allotment of perpetual tenancy with right of occupancy and enjoyment of property perpetually in favour of tenant is also transfer of one of the right out of the bundle of rights which property carries with it and shall be chargeable to tax u/s 55(2)(a) read with Section 45 of the Act as Income from Capital Gains. No doubt the assessee-HUF has right to evict the tenant but that is only in the situation of tenant in default of monthly rent and that too with a notice of six months to tenant whereby the tenant can always rectify the default and continue enjoying the tenancy perpetually more so the tenant is protected tenant under Maharashtra Rent Control Act, 2000. The AO has made an inquiry before granting exemption under section 54 EC of the Act with respect to the grant of the tenancy right which was replied by the assessee-HUF vide letter dated 07-12-2011 filed with AO on 08-12-2011 and has also enclosed copies of agreements and details along with the said letter, the said letter is reproduced in preceding para's and is placed at paper book at page 7-8 along with tenancy agreements dated 06-05-2008 and letter for repairs etc at pages 9-27 of paper book . The AO has duly applied his mind while granting the exemption under 54EC of the Act. The AO has taken one of the possible views which in our considered view is in-fact plausible and correct view by treating one time premium on allotment of tenancy rights by assessee-HUF in favour of tenants as capital receipts chargeable to tax as Income from capital gains u/s 45 of the Act arising from transfer of long term capital asset which view is duly supported by Section 55(2)(a) read with Section 45 of the Act and several judicial pronouncements treating one time 'PAGDI' or 'SALAMI' as capital receipts (D.P. Sandu Bros Chembur (P.) Ltd'scase (supra) and Cadell Wvg. Mill Co. (P.) Ltd's case (supra)) and by no stretch of imagination the same view can be held to be erroneous view. The CIT cannot substitute its own view if there are two possible views and the AO has taken one of view after application of mind and which is one of the plausible and possible view (Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. (supra), Max India Ltd. (supra) and decision of Hon'ble Bombay High Court in the case of Gabriel India Ltd. (supra). The CIT cannot substitute its own view on the view of the AO even if the view of the CIT is a better view provided the AO has taken the view which is one of the possible and plausible view and that view was adopted by the AO after due application of mind and in-fact view of the AO in the instant case is duly supported by the provisions of the Act being Section 55(2)(a) of the Act whereby tenancy right is considered as capital asset and also by several judicial pronouncements (D.P. Sandu Bros Chembur (P.) Ltd's case (supra), Cadell Wvg. Mill Co. (P.) Ltd's case (supra)). The reliance of ld CIT DR on the case laws cited by him is misconceived as in the instant case , proper and adequate enquiry has been duly made by the AO and after due application of mind has arrived at the instant decision of bringing to tax one time lumpsum payment received by the assessee-HUF on allotment of tenancy rights vide tenancy agreement dated 06-05-2008 as capital receipt chargeable to tax as Income from Capital Gains u/s 45 of the Act. Further, in the case of other co-owner Dushyant P Bobado(HUF), the CIT(A) has accepted this lumpsum payment on allotment of tenancy rights by the tax-payer in favour of the tenants received vide tenancy agreement dated 06-05-2008 as capital receipts chargeable to tax as Income from Capital Gains u/s 45 of the Act. In our considered view, order dated 08- 12-2012 passed u/s. 263 of the Act by the CIT is not sustainable under law as in our considered view the AO has made proper and adequate inquiries and has applied his mind and has taken decision after due application of mind and the view of the AO is one of the plausible and possible view and in-fact a correct view which is duly supported by provisions of the Act being Section 55(2)(a) and Section 45 of the Act and several judicial pronouncements and cannot by any stretch of imagination be categorized as erroneous view whereby in view of the AO one time premium for grant of tenancy is capital receipt and hence in our considered view, this order dated 08-12-2012 of CIT passed u/s 263 of the Act is not sustainable in law and we hereby set aside the order dated 08-10-2012 passed by the CIT u/s 263 of the Act and restore the order dated 26-12-2011 of the AO passed under section 143(3) of the Act. We order accordingly
11. In the result, the appeal in ITA No. 7490/Mum/2012 filed by the assessee-HUF is allowed.
12. Our decision in ITA No. 7490/Mum/2012 passed herein above shall apply mutatis-mutandis to appeal no. ITA 7491/Mum/2012.
13. Hence in the result, both the appeals filed by the two different assessee-HUF's being ITA No. 7490/Mum/2012 and 7491/Mum/2012 are allowed.