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Deemed ownership - income from house property

Tax queries 299 views 2 replies

Hello Gurus,

I'm planning to rent out most part of my commercial building and hold a small area of it to myself for storage purposes. 

a. I'm thining of leasing the part of the building (to be rented out) to my father for a period of 12+ years "without any transfer of ownership" but, allowing him to sublet the property to anyone else. In this case, will the rental income from the third party be taxable under my father considering him to be a deemed owner[as per section 27 and 269UA(f)] even though there is no transfer of ownership? 

ie., I rent out to my father for Rs.X and my father rents out to someone for Rs.Y. I will be taxed for Rs.X and my father for Rs.Y. Is this correct?

b. Who can claim the standard deduction in that case? 

c. If yes, is it mandatory for the lease agreement between me and my father to be registered? 

Thanks.

Replies (2)

Rental income from property is charged to tax under the head "Income from house property in the hands of the owner of the property". If a person receiving the rent is not the owner of the property, then rental income is not charged to tax under the head "Income from house property" (E.g. Rent received by tenant from sub-letting). In the following cases a person may not be the registered owner of the property, but he will be treated as the owner (i.e., deemed owner) of the property and rental income from property will be charged to tax in his hands:

 

(1) If an individual transfers his or her house property to his/her spouse (not being a transfer in connection with an agreement to live apart) or to his/her minor child (not being married daughter) without adequate consideration, then the transferor will be deemed as owner of the property.

(2) Holder of impartible estate is deemed as the owner of the property comprised in the estate

(3) A member of co-operative society, company or other association of persons to whom a building (or part of it) is allotted or leased under house building scheme of the society, company or association, as the case may be, is treated as deemed owner of the property.

(4) A person acquiring property by satisfying the conditions of section 53A of the Transfer of Property Act, will be treated as deemed owner (although he may not be the registered owner). Section 53A of said Act prescribes following conditions:

    (a)  There must be an agreement in writing.

    (b)  The purchase consideration is paid or the purchaser is willing to pay it.

    (c)  Purchaser has taken the possession of the property in pursuance of the agreement.

(5) In case of lease of a property for a period exceeding 12 years (whether originally fixed or provision for extension exists), lessee is deemed to be the owner of the property. However, any right by way of lease from month-to-month or for a period not exceeding one year is not covered by this provision.​

"I rent out to my father for Rs.X and my father rents out to someone for Rs.Y. I will be taxed for Rs.X and my father for Rs.Y. Is this correct?"

YES

b. "Who can claim the standard deduction in that case?"

As per above scenario, both can claim SD under section 24(a).

c. "If yes, is it mandatory for the lease agreement between me and my father to be registered?"

Mandatorily...... Even after that AO may not accept the arrangement and club income in your hand.
 

Thank you Sir. 

As Section 269 UA(f) refers to Transfer of property, does it mean the agreement between me and my father implies an ownership transfer to my father at the end of 12+ years of lease? 

When I consulted with a CA he said that section 269 UA is part of Chapter XXC which is applicable only for Government related purchases and is not applicable for individuals; hence, the concept of subletting and deemed ownership cannot be used by me. Is this true? 

If it is not true, what is your advice: is this a too aggressive position to take and has to be avoided OR worth trying? 


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