Income-tax---

----Other sources---Business---Lease---Business income or income from other sources ---Assessee doing managing agency business---Managing agency system abolished in 1970---Assessee acquiring foundry machinery and leasing it to a sister concern---Income from lease assessed as income from other sources from assessment year 1966-67---Income not assessable as business income in assessment year 1974-75---Indian Income Tax Act, 1961

The assessee was doing managing agency business for K. C. P Ltd., which was manufacturing machinery for sugar mills. The managing agency system was abolished in the year 1970. The assessee acquired certain foundry machinery in the year 1965. The assessee let out the foundry machinery to a sister concern and derived lease income therefrom. The said lease income was assessed under the head "other sources" for the assessment year 1966-67 onwards. In the assessment year 1974-75, the assessee claimed that the said lease income should be assessed under the head "business income". According to the assessee, the foundry machinery was later on transferred to another company. In the meanwhile the assessee was letting out the machinery to the sister concern and earning the lease income. The lessee was a subsidiary company of the assessee. The Income-tax Officer and the Tribunal held that the income was assessable as income from other sources. On a reference.

Held, that leasehold income could not be assessed under the head "Business" when the assessee let out the machinery to a third party. When there was no claim that the lease income should be assessed under the head "Business income" of the managing agency business and since the managing agency system was not prevailing in the assessment year under consideration, the Tribunal was right in holding that the lease income should be assessed under the head "other sources".

New Savan Sugar and Gur Refining Co. LAd. v. CIT (1969) 74 ITR 7 (SC) ref.

M. Uttam Reddy for the Assessee.

C.V. Rajan for the Commissioner.

JUDGMENT

K. A. THANIKKACHALAM, J.---In pursuance of the directions given by this Court in T. C. No.486 of 1980, dated February 23, 1981, the Tribunal referred the following question, for the opinion of this Court, under section 256(2) of the Income Tax Act, 1961:

"In the facts and circumstances of the case, was the Income-tax Appellate Tribunal correct in holding that the company had no income from business and that the income from the lease was income from other sources?"

For the assessment year 1974-75, the accounting year was the year ended September 30, 1973. The gross total income as determined by the Income-tax Officer by his order, dated December 21, 1976, was Rs.15,33,909. The Income-tax Officer had treated no part of the income as arising from business. The assessee owned plants and machinery relating to a foundry. The foundry had been leased out from 1965 onwards and during the accounting year the lessee was a subsidiary of the assessee. Before the Income-tax Officer, the assessee claimed that the lease income was income from the business. The Income-tax Officer on the ground that the foundry was leased from 1966 onwards held that the assessee had ceased to run the foundry as a business of its own and treated the lease income as income from other source. On appeal, the Appellate Assistant Commissioner confirmed the order passed by the Income-tax Officer. On further appeal, it was contended before the Tribunal that the Appellate Assistant Commissioner was not correct in treating the lease income as income from other sources. The Appellate Assistant Commissioner should have held that the assessee was carrying on money-lending business and regarding the foundry business. It was contended that the main object of the assessee was promoting business and during this process it had acquired the foundry business and hence the lease income should be treated as business income. The Tribunal held that from the inception, i.e., from 1965 onwards the assessee has no business income arising out of the foundry and that it had leased out the plant and machinery to its- sister concern. Hence, the Tribunal upheld the decision of the Appellate Assistant Commissioner, relying on the decision of the Supreme Court in New Savan Sugar and Gur Refining Co. Ltd v. CIT (1969) 74 ITR 7. The Tribunal also held that the assessee was not carrying on money-lending business and that the lease income was assessable under other sources of income only.

Before us, learned counsel appearing for the assessee submitted that the assessee was the managing agent of K. C. P. Ltd., which was doing business in manufacture of sugar mill industries. The assessee acquired machinery relating to the foundry in the year 1965 and the machineries were let out to the business concern. According to the assessee, the idea was to get the managing agency of the copy to which the foundry machineries would be transferred in future. The fact that in the earlier years, the lease income by letting out the machinery was assessed under the head "other sources" would not preclude the assessee from contending this year that the said income should be assessed under the head "business income". According to learned counsel, the decision of the Supreme Court in New Savan Sugar and Gur Refining Co. Ltd. v. CIT (1969) 74 ITR 7, would not be applicable to the facts of this case because that decision is concerned with a company which is doing the business and the claim of managing agency does not arise in that case. Learned counsel also submitted that the managing agency system was abolished in 1970. Even under section 28, the compensation received was directed to be assessed as business income.

On the other hand, learned standing counsel for the Department, while supporting the order passed by the Tribunal, submitted that the compensation received was directed to be assessed under the head "business" under section 28(ii) of the Act specifically. Therefore, the same cannot be assessed under other sources of income. The assets are not commercial assets and, therefore, income derived therefrom cannot be assessed under the head "business". Learned standing counsel further pointed out that in the earlier years the lease income was assessed under the head "other sources" and that would go to show the intention of the assessee not to do the foundry business. For these reasons, it was submitted that the Tribunal was correct in holding that the lease income derived from the foundry machineries is assessable under the head "other sources".

We have heard the rival submissions.

The fact remains that the assessee was doing managing agency business for K. C. P. Ltd., which was manufacturing machineries for sugar mills. The managing agency system was abolished in the year 1970. The assessee acquired certain foundry machinery in the year 1965. The assessee let out the foundry machineries to a sister concern and derived lease income therefrom. The said lease income was assessed under the head other sources from the assessment year 1966-67 onwards. In the present assessment year 1974-75, the assessee claimed that the said lease income should be assessed under the dread "business income" according to the assessee, the foundry machineries were later on transferred to another company. In the meanwhile the assessee was letting out the machineries to the sister concern and earning the lease income. The lessee is a subsidiary company of the assessee.

The point for consideration is whether the lease income derived by the assessee by letting out the foundry machinery to a sister concern can be assessed under the head "business income" when the assessee was not doing the managing agency business during the assessment year under consideration. Neither before the authorities below nor before the Tribunal, the assessee categorically claimed that the leas; income should be assessed under the head "business income" of the managing agency. According to the assessee, the lease income was derived while promoting the business. The fact that the assessee was doing managing agency business was not disclosed. Perhaps it may be due to the fact that the managing agency system was abolished from the year 1970. According to the Tribunal, the assessee was doing money-lending business. The assessee never claimed that the lease income should be assessed under the head assessee's money-lending business. But it was claimed as business income under the head managing agency business. Without any pleading to this effect, it is not possible to treat the lease income as the income from the business of the managing agency. It is no doubt true that the assessee is entitled to assess the assessee's lease income to the assessment year under consideration under the head "business income" though in the earlier year such business income was assessed under other head. It remains to be seen that the fact that the lease income was assessed under the head "other sources" in the earlier years would go to show that there is no intention on the part of the assessee to do the foundry business. Learned standing counsel for the Department rightly pointed out that the assets in question are not in the nature of commercial assets and, therefore, the income derived there from cannot be assessed as business income. It is significant to note that in the present case the assessee has not mentioned that the lease income should be assessed under what business income. In New Savan Sugar and Gur Refining Co. Ltd. v. CIT (1969) 74 ITR 7, the Supreme Court held that the lease income derived by the assessee-company cannot be assessed under the head "business income". No doubt, the question of claiming the lease income to be assessed under the head "business income" did not arise in that case. But the fact remains that as per the decision of the Supreme Court, cited supra lease hold income cannot be assessed under the head "business" when the assessee let out the machineries to a third party. When there is no claim that the lease income should be assessed under the head "business income" of the managing agency business and since the managing agency system is not prevailing in the assessment year under consideration, we are unable to accede to the contention made by learned counsel appearing for the assessee. Accordingly, we see no infirmity in the order passed by the Tribunal in holding that the lease income should be assessed under the head "other sources".

In that view of the matter, we answer the question referred to us in the affirmative and against the assessee, No costs.

M.B.A./4088/FC ??????????????????????????????????????????????????????????????????????????????? Reference answered.