Sh. J.B. Roy, New Delhi V. DCIT, New Delhi

CO 125/DEL/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5279 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 13-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-10-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 17-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J J MEHROTRA
• Assessee Lawyers: A K MONGA
• Keywords: Salary income
• Section: 10

Judgement Text

I.T.A. NO.1021 & 125 /DEL/10 1/6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.1021 /DEL/2010 ASSESSMENT YEAR : 2004-06 DCIT, SHRI J.B. ROY, CENTRAL CIRCLE-6, 1-KAPOORTHALA COMPLEX, ARA CENTRE, ALIGANJ, NEW DELHI. V. NEW DELHI. AND C.O. NO. 125/DEL/2010 IN I.T.A.NO.1021/DEL/2010 ASSESSMENT YEAR: 2004-05 SHRI J.B. ROY, DCIT, 1-KJAPOORTHALA COMPLEX, CENTRAL CIRCLE-6, ALIGANJ, N.DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K.MONGA, DR. RESPONDENT BY : SHRI J.J. MEHROTRA, C.A. ORDER PER A.K. GARODIA, AM: THIS IS REVENUES APPEAL AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE. BOTH ARE DIRECTED AGAINST THE ORDER OF LD CIT( A)-I, NEW DELHI DATED 8.12.2009 FOR ASSESSMENT YEAR 2004-05. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER:- . I.T.A. NO.1021 & 125/DEL/10 2/6 1. THE ORDER OF LD CIT(A) IS NOT CORRECT IN LAW AND FAC TS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN LAW & FACTS IN HOLDING THAT THE SALARY INCOME RECEIVED BY THE ASSESSEE SHALL BE ASSESSED AS SALARY INCOME AND NOT UNDER THE HEAD INCOME FROM OTHER SOURCES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN DIRECTING THE ASSESSING OFF ICER TO ALLOW THE DEDUCTION OF `.4,54,000/- CLAIMED BY THE ASSESSEE U/S 10(13A) OF THE INCOME TAX ACT, 1961. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF `.6,30,630/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PERQUISITES. 3. THE GROUNDS RAISED BY THE ASSESSEE IN HIS CROSS OBJECTION ARE AS UNDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD CIT(A) IS FULLY JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER BY TREATING THE SALARY INCOME OF RESPONDENT AS INCOME FROM OTHER SOURCES. 2. THE LD CIT(A) IS FULLY JUSTIFIED IN DELETING THE A DDITION OF `.4,54,000/- MADE IN RESPECT OF HOUSE RENT PAID U/S 10 (13A) OF THE INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER WITHO UT ANY RHYME OR REASON. 3. THAT THE LD CIT(A) IS FULLY JUSTIFIED IN DELETING THE ADDITION OF `.6,30,630/- MADE BY THE ASSESSING OFFICER IN RESPECT OF FOLLOWING ALLEGED PERQUISITES ON HYPOTHESIS / ESTIMATES WITHOUT AN Y MATERIAL ON RECORD:- . I.T.A. NO.1021 & 125/DEL/10 3/6 A) 2,23,600/- CHAUFER DRIVEN CAR. B) 2,37,030/- SERVANT C) 10,000/- GAS & WATER CHARGES. D) 1,60,000/- CONCESSIONAL RENT. 4. BRIEF FACTS OF THE CASE ARE THAT IT IS NOTED BY THE ASSESSING OFFICER ON PAGE NO. 2 OF THE ASSESSMENT ORDER THAT THE ASSESSEE WAS ENJOYING THE BENEFIT OF HIS POSITION IN THE SAHARA GROUP AND H E IS DRAWING HIS SALARY AND PERQUISITE AS HE WANTS. IT IS FURTHER NOTED B Y THE ASSESSING OFFICER THAT IN THE PREVIOUS YEAR, THE SALARY INCOME DISCLOSED BY THE ASSESSEE WAS TREATED AS INCOME WITHIN THE MEANING OF SECTI ON 2(24)(IV) OF THE ACT. THEREAFTER, THE ASSESSING OFFIC ER HAS STATED THAT SINCE THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES, IN THIS YEAR ALSO, THE SALARY DECLARED BY THE ASSESSEE IS TREATED AS INC OME FROM OTHER SOURCES AND THE CLAIM OF THE ASSESSEE FOR STANDARD DEDUCTION AND EXEMPTION U/S 10(13A) IS NOT ALLOWED TO THE ASSESSEE. THEREAFTER, THE ASSESSING OFFICER HAS MADE ADDITION OF `.6,30,630/- ON ACCOUNT OF FOUR PERQUISITES I.E. DOMESTIC SERVANT (THREE NUMBERS) ` ..2,37,030/-, CHAUFER DRIVEN CAR `.2,50,000/- - `.26,400/-) NET ` .2,23,600/- GAS & WATER CHARGES `.10,000/- AND HOUSE PROPERTY `.1,60,00 0/-, TOTAL `.6,30,630/-. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT (A). IT WAS HELD BY LD CIT(A) T HAT THE SALARY INCOME DECLARED BY THE ASSESSEE HAS TO BE ASSESSED AS INCOME UNDER THE HEAD SALARIES AND NOT AS INCOME FROM OTHER SOURCES. HE DIRECTED THE ASSESSING OFFICER TO ALLOW EXEMPTION TO THE ASSESSEE U/ S 10(13A) BY FOLLOWING THE TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2000-01 TO 2002-03 IN I.T.A. NO. 1645 T O 1648/DEL/2008 DATED 4.6.2009. REGARDING VARIOUS ADD ITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PERQUISITES, LD CIT(A ) HAS DELETED ALL THESE ADDITIONS OF `.6,30,630/-. NOW, THE REVENUE IS IN APPEAL . I.T.A. NO.1021 & 125/DEL/10 4/6 AGAINST VARIOUS RELIEFS ALLOWED BY THE LD CIT(A) AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE IN SUPPORT OF THE ORDER OF LD CI T(A). 5. LD DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER W HEREAS LD AR OF THE ASSESSEE SUPPORTED THE ORDER OF LD CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ALL THESE ISSUES RAISED BY THE REVENUE IN THIS APPEAL ARE COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION IN ASSESSEES OWN CASE. THIS TRIBUNAL DEC ISION, IN ASSESSMENT YEAR 2003-04, 05-06 & 06-07 IN I.T.A. NO.156 9,1570 & 1571/DEL/10 DATED 31.8.2010 IS AVAILABLE ON PAGES 2 T O 9 OF THE PAPER BOOK AND IN PARA NO.4 OF THIS TRIBUNAL ORDER, IT WAS HELD BY THE TRIBUNAL THAT THE INCOME IS ASSESSABLE AS SALARY AND DEDUCTION U/S 16(1) AND 10(13A) ARE ALLOWABLE. SINCE, THE ASSESSING OFFICER HAS ALSO ADMITTED IN THE ASSESSMENT ORDER THAT THE FACTS IN THE PRESENT YEA R ARE IDENTICAL, WE FIND NO REASON TO TAKE A CONTRARY VIEW IN THE PRE SENT YEAR AND HENCE, GROUND NO.2 & 3 OF THE REVENUES APPEAL ARE R EJECTED BY FOLLOWING THIS TRIBUNAL ORDER. GROUND NO.1 IS GENERAL AND IT DOES NOT CALL FOR ANY SEPARATE ADJUDICATION. 7. NOW, THE ONLY GROUND LEFT IS GROUND NO.4 . AS PER THIS GROUND, THE REVENUE IS DISPUTING REGARDING DELETION OF VARIOUS ADD ITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PERQUISITES. THIS ISSUE IS ALSO COVERED BY THE SAME TRIBUNAL ORDER. IN PARA NO.6.1 O F THIS TRIBUNAL ORDER, IT WAS NOTED BY THE TRIBUNAL THAT IN THOSE THR EE YEARS ALSO, ADDITIONS WERE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SAME FOUR ITEMS I.E. CONCESSIONAL RENT, DOMESTIC SERVANT, GAS & WAT ER CHARGES AND VALUE OF CHAUFER DRIVEN CAR. THE TRIBUNAL HAS DE CIDED ALL THESE ISSUES IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE EARLIER TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1999-00. SINCE, . I.T.A. NO.1021 & 125/DEL/10 5/6 THIS IS ADMITTED POSITION AS HAS BEEN ADMITTED BY THE A SSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE FACTS IN THE PRESENT YEA R ARE IDENTICAL TO THE FACTS OF THE PRECEDING YEAR, WE FIND NO REASO N TO TAKE A CONTRARY VIEW IN THE PRESENT YEAR AND HENCE, BY RESPECTFULLY F OLLOWING THIS TRIBUNAL DECISION, WE REJECT GROUND NO.4 OF THE REVE NUES APPEAL ALSO. 8. REGARDING CROSS OBJECTION OF THE ASSESSEE, WE FIND TH AT THE SAME IS NOT MAINTAINABLE BECAUSE IT IS MERELY IN SUPPORT OF THE ORDER OF LD CIT(A) AND HENCE THE CROSS OBJECTION IS DISMISSED AS NOT A DMISSIBLE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL A S THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED, 10. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING I.E. 13 TH OCTOBER, 2010. SD/- SD/- (I.P. BANSAL) (A.K. GARO DIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 13.10.2010. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). . I.T.A. NO.1021 & 125/DEL/10 6/6