Professional Documents
Culture Documents
INCOME FROM
HOUSE PROPERTY
SUBMITTED TO:
SUBIMTTED BY:
SHUBHAM GOYAL
153/11
9thSemester
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
Introduction
1. Chargeability
1.1. Essentials of Section 22
1.2. Deemed Owner
2. Determination of house property
2.1. Gross Annual Value of House Property
3.1.1.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 Property
3.2. For Self occupied House Property
4. Rent
4.1. Arrears of rent received subsequently
4.2. Arrears of rent received in current previous year
5. House property jointly owned by two or more persons
5.1. Ascertained share
5.2. Unascertained share
6. Recovery of Unrealized Rent [Section 25AA]
7. Receipt of Arrears of Rent [Section 25B]
8. Bibliography
1.
Introduction
Section 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 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.
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.
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'.
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.
the Surpeme Court in the case of CIT v. Podar Cement(P) Ltd. 4In 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.
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:
(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. 6
(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)
(ii)
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.
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)].
(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.
7 [CIT v Delhi Cloth and General Mills Ltd (1966)591TR 152 (P&H)].
8 [CIT v National Newsprint and Paper Mills (1978)114 ITR 388 (MP)].
(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".
(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.
the cases of Dewan Daulat Rai Kapoor v. NDMC9; Amolak Ram Khosla v. CIT 10 (SC) &
Mrs. Shiela Kaushik v. CIT)11. Thus,
Income from house property = Gross Annual Value Deductions
----------------------------------------------------------------------------------------------------------------------2.1.
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) 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. 12 Therefore, Reasonable expected rent is:
(1) Municipal value or.
(2) Fair rent
Whichever 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 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:
6 1000+4 1500
12=Rs 14,400
10
(iv)
vacated.
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.
6 1000+4 1500
12=Rs 14,400
10
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 13
(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
14
Possibilities
Gross 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)
<
(a) Reasonable expected rent only due to vacancy
(b)Actual rent received or receivable by the assessee (R)
2. When Actual rent received or receivable is less than Reasonable expected rent partly
due to vacancy and partly due to other factors (letting out the property at lower rent or
unrealized rent) i.e.,
(b) Actual rent receivable by the assessee (R)
<
(a) Reasonable expected rent only due to vacancy and partly due to other factors
(letting out the property at lower rent or unrealized rent)
(a) Reasonable
expected
rent
3. When Actual rent received or receivable is less than Reasonable expected rent only
due to factors other than vacancy factors (letting out the property at lower rent or
unrealized rent) i.e.,
(b) Actual rent receivable by the assessee (R)
<
(a) Reasonable expected rent only due to factors other than vacancy (letting out the
property at lower rent or unrealized rent)
(a) Reasonable expected rent
(b) Such property could not be occupied by the assessee throughout the previous year for
his (or family member) own residential purpose because either due to employment or
business or profession assessee is residing at some other place and no other benefit is
derived from such property
Then Gross Annual Value would be Nil.
A house for residential purpose does not require a compulsoryresidence; it only requires
that house should be available for residential purpose of the assessee all the time. Where
the assessee has retained exclusive control over possession of a house owned by him,
though he may not be actually present in the house and when he is away from it, he is still
in constructive possession of his residential house and as such he cannot be denied the
benefit under section 23(2)(a). [CIT v Deepak Seth (2005)1 SOT 35 (Del)].
Can a vacant property be treated as Self-occupied House property?
A vacant property shall be treated as Self-occupied House property with Gross Annual
Value Nil if following conditions are fulfilled:
(i)
(ii)
(iii)
(iv)
Example: Mr. A owns a house in Chandigarh. During previous year 2009-10, he was
working in Delhi and was residing in a rented accommodation there. His house in
Chandigarh remained vacant throughout the previous year 2009-10 and he did not take
any other benefit from that house. As all the conditions laid down under section 23(2)(b)
are fulfilled therefore vacant house in Chandigarh is self-occupied house property.
However, where above conditions are not fulfilled then vacant house shall not be treated
as self-occupied property.
Example: Mr. A owns a house in Chandigarh. He is also working in Chandigarh during
previous year 2012-13. He was residing with his father in Chandigarh. Here condition (ii)
as mentioned under section 23(2) (b) is not fulfilled therefore the vacant house shall not
be treated as self-occupied house property.
Important points:
Only Individual or HUF can have the benefit of Section 23(2): Section 23(2) can be
applied if assessee is an individual or HUF as any other person like company,
partnership firm, AOPs/BOIs, Local Authority and any other artificial judicial person
cannot occupy the property for his (or family member) own residential purpose.
Where the house property isoccupied for residential purposes not in the capacity of
the owner:If the house property is occupied for residential purposesnot in the capacity
of the owner but as an employee then it will be let out house property and Gross
Annual Value will be determined according to Section 23(1). Where assessee lets out
his own house property to his employer-company which in turn was allotted to
assessee as rent free accommodation (perquisite). Assessee was not entitled for benefit
of Section 23(2) as he occupied the property not in the capacity of the owner but as an
employee therefore, it will be let out house property and Gross Annual Value will be
determined according to Section 23(1)15
If more than one property is occupied by the assessee during previous year: If more
than one property is occupied by the assessee during previous year for residential
purpose then depending upon assessee's discretion one house property will be treated
as self-occupied house property and Gross Annual Value will be determined according
to Section 23(2) i.e., nil. However, remaining will be "Deemed to be Let Out house
property/s" and gross Annual Value will be determined according to Section 23(1) i.e.,
(a) Reasonable expected rent; or
(b) Actual rent received or receivable by the assessee
whichever is higher. However, Section 23(1)(c) will not be applicable. As in such
situation actual rent received/receivable is nil. Therefore,
Gross Annual Value = Reasonable expected rent.
Where property is partly Self Occupied and partly let out [Section 23(3)]: If
the house property consist of two or more independent residential units and
one or more units are occupied by the assessee for own residential purposes
and remaining units are let out then Gross Annual Value of:
(a) the Let out units will be determined according to Section 23(1); and
15 [D. R. Sunder Raj v CIT(1979) 2 Taxman 458 (AP) ].
(b)
i.e., nil.
Where property is Self-Occupied for the part of the previous year and let out
for remaining Previous year [Section 23(3)]: If the house property is SelfOccupied for a part of the previous year and let out for the remaining previous
year then Gross Annual Value of the property:
(a) For the let out period will be determined according to Section 23(1); and
(b) for the self-occupied period will be determined according to Section 23(2)
i.e., nil.
4.
Deductions
Municipal taxes levied by local authority in respect of the house property will be deducted if
following conditions are fulfilled:
(i) these taxes arc borne by the assessee; and
(ii) such taxes are actually paid by the assessee.
Important points:
Municipal taxes include service tax also.
No deduction can be claimed on payable basis but only on paid basis.
Therefore, Municipal taxes levied by local authority and not paid by assessee
during previous year are not deductible.
Municipal taxes of past previous years paid by the assessee in current previous
year are deductible.
Where house property is situated outside India and Municipal taxes levied by
local authority of that foreign country and paid by assessee during previous
year then such Municipal taxes are also deductible.
(b)
30% of Net Annual Value is to be deducted from Net Annual Value as Standard Deduction.
Important points:
Standard deduction is given for expenditure incurred by the assessee in letting out the
house property.
The actual expenditure incurred by the assessee is not important and amount of
standard deduction is fixed i.e. 30% of annual value.
(d)
Where capital is borrowed by the assessee for the purpose of purchase or reconstruction of
house property then assessee can claim deduction relating to interest of Pre-construction
period. For this aggregate the interest of Pre-construction period and divide, it into five equal
instalments and first instalment allowed as deduction in the previous year in which house is
acquired or construct is completed. Remaining four instalments will be allowed as deduction
in the four immediately succeeding previous years.
What is Pre-construction Period?
Pre-construction Period means
period commencing on the date of borrowing capital; and
ending on:
(a) March 31 immediately preceding the date of completion of construction/ date of
acquisition
or
(b) date of repayment of loan
Whichever is earlier
(iv) The certificate from the creditor must be attached with return of income:
that interest is payable in respect of loan given for acquisition or construction
of house property or repayment of the principal amount outstanding under
earlier loan taken for such acquisition or construction of house property.
There is no condition of date of commencement of acquisition or construction of house
property it may have started before or after April 1, 1999. But capital must be borrowed on or
after April 1, 1999. Therefore, if above conditions are fulfilled maximum deduction regarding
interest would be Rs 1,50,000.
Amendment of section 24 by the Finance (No. 2) Act, 2014 [with effect from the 1st day of
April, 2015]:In section 24 (b), for the words "one lakh fifty thousand rupees". the words "two
lakh rupees" shall be substituted. Therefore, maximum deduction for house loan interest in
case of SOHP will be two lakh rupees instead of one lakh fifty thousand rupees from the said
date.
Interest of Pre-construction period [Explanation to Section 24]
Where capital is borrowed by the assessee for the purpose of purchase or reconstruction of
house property then assessee can claim deduction relating to interest of Pre-construction
period. For this aggregate the interest of Pre-construction period and divide, it into five equal
instalments and first instalment is allowed as deduction in the previous year in which house is
acquired or construction is completed. Remaining four instalments will be allowed as
deduction in the four immediately succeeding assessment years. [same as in case of LOHP].
Example: Mr. A takes loan of Rs 4,00,000 @15% p.a. for construction of house on June 10,
2004 and construction of the house is completed on January 15, 2010. Find the deduction
regarding interest if date of repayment is:
(i) January 16,2015 or
(ii) June 30, 2011 or
(iii)
October 31, 2007.
Solution:
(i) Date of repayment is January 16, 2015.
Therefore, Pre construction period is from June 10, 2004 March 31, 2009.
The interest from June 10, 2004 March 31, 2009 is Rs 2,88,490 the single
annual instalment is Rs 57.700 ( Rs 2,88,490/5)
Deduction
regarding
Current
years
interest
Preconstruction
Period
interest
Total
deduction
2009-2010
2010-211
2011-2012
2012-2013
2013-2014
2014-2015
Rs 60,000
Rs 60,000
Rs 60,000
Rs 60,000
Rs 60,000
Rs 47,670
Rs 57,700
Rs 57,700
Rs 57,700
Rs 57,700
Rs 57,700
Nil
Rs
1,17,710
Rs
1,17,710
Rs
1,17,710
Rs
1,17,710
Rs
1,17,710
Rs 47,760
5.
(ii)
Not allowed
(iii)
(iv)
Where unrealized rent was of the previous year 2000-2001 or of earlier previous
year and was realized in assessment year 2001-2002 or earlier assessment year or
(a) definite and ascertainable then such co-owners shall not be assessed as AOPs but the
proportionate share of each co-owner in the income from house property as calculated
in accordance with sections 22-25 shall be included in his Total Income.
(b) not definite and ascertainable then each co-owner shall be deemed to have equal share
in the house property. Hence, proportionate share of each co-owner in the income
from house property as calculated in accordance with sections 22-25 shall be included
in his Total income.
(ii)
Bibliography
Books
RATTAN, JYOTI. Taxation Laws, 6th Edition. New Delhi: Bharat Law House, 2014.
Webpages:
http://taxguru.in/income-tax/taxability-of-second-house-under-the-income-taxact1961.html
http://www.icaiknowledgegateway.org/littledms/folder1/chapter-5-income-fromhouse-property.pdf
http://www.incometaxindiapr.gov.in/incometaxindiacr/contents/tpi/Assessment-ofIncome-from-house-Pro-1.pdf
http://www.incometaxindia.gov.in/Tutorials/Income-from-House-PropertyPractical.pdf