Smt. Amita Garg, New Delhi V. ACIT, New Delhi

CO 255/DEL/2012

• Counselvise Citation: [2016] 119 COUNSELVISE.COM (IT) 3207 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL CHAN D SHARMA
• Keywords: Business income; Business expenditure; Search and seizure; Opportunity of being heard; Additional evidence
• Section: 153A; 132; 28; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. H. S. SIDHU , JM ITA NO. 2346 /DEL/2012 : ASSTT. YEAR : 2008 - 09 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 12, NEW DELHI VS SMT. AMITA GARG, G - 15, MAHARANI BAGH, NEW DELHI - 110065 (APPELLANT) (RESPONDENT) PAN NO. AA DPG0990L CO NO. 255 /DEL/2012 : ASSTT. YEAR : 2008 - 0 9 SMT. AMITA GARG, G - 15, MAHARANI BAG H, NEW DELHI - 110065 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AADPG0990L ITA NO. 2347/DEL/2012 : ASSTT. YEAR : 2009 - 10 ASSTT. COMMISSIONER OF INCOME T AX, CENTRAL CIRCLE - 12, NEW DELHI VS SMT. AMITA GARG, G - 15, MAHARANI BAGH, NEW DELHI - 110065 (APPELLANT) (RESPONDENT) PAN NO. A ADPG0990L CO NO. 256 /DEL/2012 : ASSTT. YEAR : 2009 - 10 SMT. AMITA GARG, G - 15, MAHARA NI BAGH, NEW DELHI - 110065 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AADPG0990L ITA NO. 2349/DEL/2012 : ASSTT. YEAR : 2008 - 09 DEPUTY COMMISSIONER OF IN COME TAX, CENTRAL CIRCLE - 5, NEW DELHI VS RANJANA GARG, 141, SUNDER NAGAR, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AADPG0990L ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 2 CO NO. 250 /DEL/2012 : ASSTT. YEAR : 2008 - 0 9 RANJANA GARG, 141, SUNDER NAGAR, NEW DELHI VS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 5, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AADPG0990L ASSESSEE BY : SH. RAJEEV SAXENA, PANKAJ GARG, MS. SUMANGLA SAXENA, ADVS. REVENUE BY : SH. SUNILCHAND SHARMA , CIT DR DATE OF HEARING : 21 .0 3 .201 6 DATE OF PRONOUNCE MENT : 18 .04 .201 6 ORDER PER N. K. SAINI, AM : T HE APPEALS BY THE DEPARTMENT AND CROSS OBJECTION BY THE ASSES SEE IN THE CASE OF RANJANA GARG ARE DIRECTED AGAINST THE ORDER DATED 09.03.2012 FOR THE ASSESSMENT YEAR 2008 - 09 AND IN THE CASE OF SMT. AMITA GARG AGAINST THE SEPARATE ORDERS EACH DATED 14.03.2012 FOR THE ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 OF LD. CIT(A) - XXI, NEW DELHI . 2. SINCE THE ISSUE INVOLVED IS COMMON IN THE APPEALS OF THE DEPARTMENT AND THE CROSS OBJECTION OF THE ASSESSEE. THEREFORE, THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 3 3. FIRST WE WILL D EAL WITH THE APPEAL OF THE DEPARTMENT IN ITA NO. 2349/DEL/2012 AND CROSS OBJECTION NO. 250/DEL/2012 OF ASSESSEE IN THE CASE OF RANJANA GARG. THE DEPARTMENT HAS TAKEN THE FOLLOWING GROUNDS: 1. 'THE ORDER OF THE LD. CIT(APPEALS) IS NOT CORRECT IN LAW AND F ACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 3685518/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NOTIONAL INCOME FROM HOUSE PROPERTY IN VIEW OF PROVISION OF SECTION 23(1)(A) OF THE INCOME TAX ACT 1961 BY ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF INCOME TAX RULES, 1962. IN THE CASE OF OTHER CO - OWNER MRS . AM ITA GARG FOR THE AY 2008 - 09 IT WAS SUBMITTED BEFORE CIT(A) THAT THE PROPERTY NO. 11 RING ROAD NEW DE LHI WAS VA CATED BY THE TENANT NII T W.E.F. 31 - 05 - 06. THE LEASE AGREEMENT WAS INITIALLY FOR A PERIOD OF THREE YEARS W.E.F. 12 - 07 - 05, HOWEVER THE PREMISE WAS VACATED PREMATURE DU E TO HANGING SEALING DRIVE BY MC D AND LATER ON THE PREMISE WAS SEALED BY MC D ON 09 - 11 - 06. T HE ASSESSEE HAS NEITHER BROUGHT THESE FACTS TO THE NOTICE OF ASSESSING OFFICER NOR FILED ANY DOCUMENTARY EVIDENCE IN THIS REGARD DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THE ORDER OF ID. CIT(A) IS PERVERSE IN LAW AND ON FACTS. ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 4 4. THE APPELLANT CRA VES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL'. 4. IN THE CROSS OBJECTION, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. BECAUSE THE DEPARTMENTAL APPEAL IS BAD IN LAW AS WEL L AS ON FACTS AND IS LIABLE TO BE DISMISSED. 2. THAT THE CIT (A) HAS ERRED IN LAW AS WELL AS ON FACTS IN REJECTING THE CONTENTION THAT IMPUGNED ASSESSMENT ORDER IS BAD IN LAW AS THE ASSESSMENT AS WELL AS ADDITIONS OR COMPUTATION OF INCOME HAS NOT BEEN FR AMED/MADE ON THE BASIS OF ANY MATERIAL SEIZED PURSUANT TO AN ACTION TAKEN UNDER SECTION 132 OF THE ACT IN THE CASE OF RAJDARBAR GROUP WHICH ITSELF MAKES THE ASSESSMENT CONTRARY TO LAW, ILLEGAL LEADING TO BE QUASHED. 3. THAT LD AO HAS ERRED IN LAW AS WELL AS IN FACTS IN RAISING GROUND NO. - 2 ON ADMITTING ADDITIONAL EVIDENCE BECAUSE: A.) HE HAS FAILED TO NOTICE THAT THERE WAS NO ADDITIONAL EVIDENCE WHICH WAS ADMITTED BY THE CIT(A). IN FACT THE CIT(A) HAS APPLIED THE CORRECT PROVISION I.E. 23(1)(C) AS AGAIN ST 23(1)(A) APPLIED BY AO AFTER APPRAISING THE SAME FACTS THAT PROPERTY WAS VACANT ON ACCOUNT OF SEALING, B.) HE HAS FAILED TO RECORD IN THE ASSESSMENT ORDER, THOUGH INFORMED HIM DURING THE COURSE OF ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 5 DISCUSSION THAT RENT WAS NOT DECLARED BECAUSE PROPERTY WAS REQUIRED TO BE VACATED BY NII T ON ACCOUNT OF SEALING BY MCD. C.) HE HAS FAILED TO NOTICE THAT FACT OF SEALING WAS NOT A NEW FACT BROUGHT TO HIM DURING THE COURSE OF DISCUSSION AS RENT WAS DECLA RED IN THE EARLIER YEARS FROM NII T WHO DID NOT PAY SUBSE QUENT RENT, AS PROPERTY WAS SEALED BY MCD AND REQUIRED TO BE VACATED, D.) AO HIMSELF NOTICED AT PARA 4.1 AS INFORMED THAT NII T HAS VACATED W.E.F 1/6/2006 AND PROPERTY REMAINED VACANT TILL 30/11/2007 AND SUBSEQUENTLY ONE ROOM WAS LET OUT TO A GROUP COMPAN Y FOR PROPER WATCH AND UPKEEP OF THE PROPERTY AND WRONGLY CONCLUDED MERELY ON DOUBTS TO APPLY SEC 23(1)(A). E.) AO HIMSELF HAS NOT RAISED ANY QUESTION AND NOTICED AFTER EXPLANATION THAT ANNUAL VALUE HAS TO BE TAKEN IN ACCORDANCE WITH SEC 23(1)(C) AS PROP ERTY WAS VACANT DURING THE WHOLE OF THE PREVIOUS YEAR AND OWING TO SUCH VACANCY NO RENT WAS RECEIVED/RECEIVABLE BUT LATER ON WRONGLY APPLIED SEC 23(1)(A). F.) AO CANNOT APPLY SEC 23(1)(A) ONCE CONDITIONS STATED IN SEC 23(1)(C) ARE APPLICABLE AFTER THE A MENDMENT BY FINANCE ACT 2001 W.E.F 1/4/2002. 4. THE RESPONDENT CRAVES LEAVE FOR ADDITION, MODIFICATION, ALTERATION, AMENDMENT OF ANY OF THE CROSS OBJECTION. ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 6 5. FROM THE ABOVE GROUNDS, IT IS CRYSTAL CLEAR THAT THE GRIEVANCE OF THE DEPARTMENT AS WELL AS TH E ASSESSEE RELATES TO THE DETERMINATION OF INCOME FROM HOUSE PROPERTY. 6. FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT IN RAJDARBAR GROUP OF CAS ES INCLUDING THE CASE OF THE ASSESSEE ON 31.07.2008. THE AO ISSUED THE NOTICE U/S 153A OF THE ACT DATED 13.11.2009 REQUIRING THE ASSESSEE TO FILE HER RETURN OF INCOME. IN RESPONSE THE ASSESSEE FILED THE RETURN OF INCOME ON 01.12.2009 DECLARING AN INCOME OF RS.2,87,110/ - . THE SAID RETURN FILED U/S 153A OF THE ACT WAS THE SAME AS WAS FILED EARLIER U/S 139 OF THE ACT. THE ASSESSEE HAD SHOWN INCOME FROM HOUSE PROPERTY, CAPITAL GAIN AND OTHER SOURCES. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED T HAT THE ASSESSEE WAS CO - OWNER OF THE PROPERTY AT 11, RING ROAD, LAJPAT NAGAR - IV, NEW DELHI. THE SAID BUILDING WAS EARLIER GIVEN ON RENT TO M/S INSTITUTE OF INFORMATION TECHNOLOGY ON LEASE ON A MONTHLY RENT OF RS.8,85,000/ - . HOWEVER, FOR THE YEAR UNDER CONS IDERATION NO RENTAL RECEIPT HAD BEEN SHOWN FR OM THE ABOVE TENANT, I NSTEA D OF THIS, THE PROPERTY WAS LET - OUT TO A FAMILY CONCERN ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 7 M/S GLOBAL REALTY VENTURE LTD. FOR MEAGER RENT OF RS.5,000/ - PER MONTH. THE AO ASKED THE ASSESSEE A DETAILED QUESTIONNAIRE AS UN DER: 1. THE DETAILS FILED BY YOU SUGGEST THAT YOU ALONG WITH SMT. RANJANA GARG ARE CO - OWNERS (50% SHARE EACH) OF THE PROPERTY NO. II, RING ROAD, LAJPA T NAGAR - IV, NEW DELHI WHICH WAS EARLIER GIVEN ON RENT TO M/S NII T INSTITUTE OF INFORMATION TECHNOLOGY UN DER THE LEASE AGREEMENT DATED 12.7.2005 ON A M ONTHLY RENT OF RS.8,85,000/ - . THIS YEAR, NO RECEIPT OF RENT HAS BEEN SHOWN FROM M/S NII T INSTITUTE OF INFORMATION TECHNOLOGY. INSTEAD OF THIS, THE PROPERTY WAS LET - OUT TO A FAMILY CONCERN, M/.S GLOBAL REALITY V ENTURE LTD FOR A MEAGER RENT OFRS.5000/ - PER MONTH. 2. AS PER THE P ROVISIONS OF SECTION 23 OF THE I. T. ACT, 1961, THE ANNUAL VALUE OF ANY PROPERTY SHALL BE DEEMED TO BE - (A) THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR; OR (B) WHERE THE PROPERTY OR ANY PART OF THE PROPERTY IS LET AND THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THEREOF IS IN EXCESS OF THE SUM REFERRED TO IN CLAUSE (A) THE AMOUNT SO RECEIVED OR RECEIVABLE; OR (C) WHERE THE PROPERT Y OR ANY PART OF THE PROPERTY IS LET AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR AND OWING TO SUCH VACANCY THE ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 8 ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THEREOF IS LESS THAN THE SUM REFERRED TO IN CLAUSE (A), THE AMOUN T RECEIVED OR RECEIVABLE. 3. IN THE PRESENT CASE, THE PROPERTY WAS EARLIER LET OUT FOR A SUM OF RS, 8,85,000 / - PER MONTH. THEREFORE, THE MARKET RENTAL VALUE OF THE PROPERTY CAN REASONABLY BE TAKEN AT THIS VALUE. THEREFORE, IN THE PRESENT CASE ANNUAL VALUE OF THE PROPERTY NO. 11, RING ROAD, LAJ PAT NAGAR - IV, NEW DELHI IS RS.1, 06,20,000/ - . AS PER THE PROVISIONS OF THE I. T. ACT, INCOME FROM HOUSE PROPERTY IS CHARGEABLE ON THE BASIS OF ANNUAL VALUE OF THE PROPERTY. 4. YOU ARE, THEREFORE, REQUESTED TO SHOW CAUS E AS TO WHY FOR THE PURPOSE OF COMPUTATION OF INCOME FROM HOUSE PROPERTY, THE ANNUAL VALUE OF THE SAID PROPERTY SHOULD NOT BE TAKEN AT RS.1,06,20,000/ - AND INCOME FROM HOUSE PR OPERTY BE COMPUTED ACCORDINGLY. ' 7. THE AO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE PROPERTY IN QUESTION WAS RENTED OUT TO M/S NIIT INSTITUTE OF INFORMATION TECHNOLOGY UNDER THE LEASE AGREEMENT DATED 12.07.2005 ON MONTHLY RENT OF RS.8,85,000/ - , BUT THE ASSESSEE HAD NOT SHOWN ANY RECEIPT FROM THE ABOVE PARTY FOR THE YEAR UNDER CONSIDERATION. HOWEVER, IT HAD OFFERED A MEAGER RENT OF RS.5,000/ - PER MONTH FROM HER FAMILY CONCERN M/S GLOBAL REALTY VENTURE LTD. HE FURTHER OBSERVED THAT THE ASSESSEE HAD NOT BROUGHT ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 9 ANY SATISFACTORY REASON IN REGARD TO THE NON OFFER ING OF INCOME FROM HOUSE PROPERTY AS PER SECTION 23(1)(A) OF THE ACT WHICH STATES THAT FOR THE PURPOSE OF DETERMINING THE INCOME FROM HOUSE PROPERTY, THE ANNUAL VALUE OF THE PROPERTY SHALL BE DEEMED TO BE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPE CTED TO LET FROM YEAR TO YEAR. HE WAS OF THE VIEW THAT THE PROPERTY IN QUESTION WAS FIT TO FETCH MINIMUM RENT OF RS.8,85,000/ - PER MONTH OR RS.1,06,20,000/ - PER ANNUM . THE AO HELD THAT THE ASSESSEE WAS HAVING 50% HOLDING IN THE SAID PROPERTY. HE, THEREFORE , WORKED OUT THE INCOME CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS UNDER: ANNUAL VALUE RS.53,10,000/ - LESS: PROPERTY TAXES PAID RS.44973/ - RS.44,973/ - RS.52,65,027/ - LESS: DEDUCTION U/S 24(A) OF THE ACT RS.15,79,508/ - INC OME UNDER THE HEAD INCOME FROM HOUSE PROPERTY RS.36,85,518 ACCORDINGLY, RS.36,85,518/ - WAS CONSIDERED TO BE DEEMED RENTAL INCOME OF THE ASSESSEE. 8. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE IS TH E CO - OWNER WITH SMT. AMITA GARG OF THE PROPERTY NO. 11, RING ROAD, NEW DELHI, WHICH IS ADMEASURING ABOUT 725 SQ. YDS. HAVING GROUND FLOOR, FIRST FLOOR, SECOND FLOOR, THIRD FLOOR AND PART OF ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 10 ROOFS NEARLY ADMEASURING APPROXIMATELY 30,000 SQ. FT. AND THE ENT IRE BUILDING WAS LEASED TO M/S NIIT INSTITUTE OF INFORMATION TECHNOLOGY AT A MONTHLY RENT OF RS.8,85,000/ - FOR RUNNING A COACHING INSTITUTE BUT THE SAME WAS VACATED BY NIIT AND SINCE THEN IT WAS LYING VACANT. THE ASSESSEE PRODUCED THE COPY OF RENT AGREEME NT WITH NIIT BEFORE THE LD. CIT(A) AND STATED THAT THE TERMS OF LEASE AGREEMENT HAD ALREADY BEEN EXPIRED, WHICH WAS CHOOSEN BY THE LESSEE NOT TO RENEW AND THUS THE PROPERTY REMAINED VACANT THEREAFTER. IT WAS FURTHER SUBMITTED THAT ALONG WITH THE AFORESAID TENANT ONE OF THE FAMILY CONCERN M/S GLOBAL REALTY VENTURES LTD. HAD TAKEN TWO TABLE AND TWO CHA I R SPACE AT THE BASEMENT AND PUT AN EMPLOYEE JUST TO ENSURE PROPER CARE OF THE BUILDING ASSESSED BY THE SAME AO AND A MEAGER CONSIDERATION OF RS.5,000/ - PER MON TH HAD BEEN CHARGED FROM THIS CONCERN WHICH HAD BEEN ASSESSED BY THE SAME AO WHO DID NOT CONSIDER THE AREAS OF LEASE WHILE MAKING DRASTIC COMPARISON OF THE RENTALS. IT WAS FURTHER SUBMITTED THAT THE AO WHILE FRAMING THE ASSESSMENT IN THE CASE OF M/S GLOBAL REALTY VENTURES LTD. HAD HIMSELF ASSESSED THE RENTAL EXPENSES CLAIMED BY IT @ RS. 5,000 PER MONTH ONLY. IT WAS CONTENDED THAT THE ADDITION WAS MADE BY THE AO WITHOUT GOING THROUGH THE AGREEMENT OF LEASE IN WHICH THE SPACE AND RENT FOR THE ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 11 SAME HAD CLEAR LY BEEN GIVEN AND THAT THE PROV ISIONS OF SECTION 23(1)(C) OF THE ACT WERE APPLICABLE TO THE FACTS OF THE ASSESSEE S CASE AND NOT THE PROVISIONS OF SECTION 23(1)(A) OF THE ACT INVOKED BY THE AO. IT WAS FURTHER SUBMITTED THAT THE AO HAD NOT APPRECIATED THE FACT THAT THE LESSEE COMPANY COULD CLAIM HIGHER DEDUCTION AS RENTAL PAYMENTS AGAINST THE PROFITS WHEREAS THE INCOME FROM THE SAME PROPERTY UNDER THE HEAD INCOME FROM HOUSE PROPERTY WOULD ENTAIL 30% OF THE DEDUCTION AGAINST THE SAME INCOME. THE ASSESSEE ALSO PR ODUCED COPY OF THE BALANCE SHEET OF M/S GLOBAL REALTY VENTURES LTD. ALONG WITH COPY OF LEDGER ACCOUNT OF RENT PAID TO THE ASSESSEE. 9. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE ADDITION MADE BY THE AO BY OBSERVING IN PAR A 5.3 OF THE IMPUGNED ORDER AS UNDER: 5.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSION, PERUSED THE ASSESSMENT ORDER AND, EVIDENCE ON RECORD. THE DISPUTE, AS RAISED BY THE APPELLANT, PERTAINS TO THE ADDITIONS OF RS.36,85,518/ - MADE BY THE AO UNDER THE HEAD INCOME FROM HOUSE PROPERTY. AO HAS APPLIED THE PROVISIONS OF SECTION 23(1)( A) FOR MAKING THE ADDITIONS OF RS. 36,85 , 518/ - . IN CONTENTION TO THAT THE AR HAS SUBMITTED THAT THE AO HAS NOT REFERRED THE PROVISIONS OF SECTION 23(1)(C) WHICH SAYS 'WHERE ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 12 THE PROP ERTY OR ANY PART OF THE PROPERTY IS LET OUT AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEA R AND OWING TO SUCH VACANCY THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THEREOF IS LESS THAN THE SUM REFERRED TO IN SECTION 23(1)( A), THE ANNUAL VALUE SHOULD BE DEEMED TO BE THE AMOUNT SO RECEIVED OR RECEIVABLE' AND THEREFORE ADDITION IS LIABLE TO BE DELETED AS PER SECTION 23(1)(C). AFTER ANALYZING THE FACTS AND ARGUMENTS OF THE AR AND AO, I AM OF THE CONSIDERED OPINION, THAT SECTION 23(1)(C) STATES THAT IF ANY PERSON HAS LET OUT THE PROPERTY IN PAST AND IN SUBSEQUENT YEAR IT WAS VACANT DURING WHOLE OR PART OF THE YEAR THEN THE RENTAL INCOME FOR THAT YEAR WILL BE NIL OR AMOUNT OF RENT RECEIVED OR RECEIVABLE. THE ANNUAL VALUE OF THE PR OPERTY SHALL BE DETERMINED UNDER THIS SITUATION IF ALL THE FOLLOWING 3 CONDITIONS ARE SATISFIED: A) THE PROPERTY IS LET, B) IT WAS VACANT DURING THE WHOLE OR PART OF THE PREVIOUS YEAR, C) OWING TO SUCH VACANCY, THE ACTUAL RENT RECEIVED AND RECEIVABLE IS L ESS THAN THE VALUE DETERMINED UNDER SECTION 23(1)(A). IN THE PRESENT CASE, BOTH CLAUSE (A) AND CLAUSE (B) OF SECTION 23(1) ARE NOT APPLICABLE AND THE GROSS ANNUAL VALUE SHALL BE ACT UAL RENT RECEIVED OR RECEIVABLE. IN THE PRESENT CASE DEEMING PROVISION OF CHAPTER IV (INCOME FROM HOUSE PROPERTY) OF THE INCOME TAX ACT WILL NOT BE APPLICABLE. THEREFORE, AO HAS ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 13 WRONGLY APPLIED THE PROVISIONS OF SECTION 23(1)(A). IN A JUDGMENT GIVEN BY THE HON BLE HIGH COURT OF DELHI IN THE CASE OF CIT V MODI INDUSTRIES LTD. (N O.4) [1993] 200 ITR 350 (DEL), THE ACTUAL RENT RECEIVED OR RECEIVABLE FROM THE PROPERTIES WHICH HAVE BEEN LET CAN BE CONSIDERED AS ANNUAL VALUE AND NOT AS PER DEEMING PROVISION UNDER THE ACT U/S 23(1)(A). THUS, THE ADDITIONS OF RS.36,85,518/ - ON ACCOUNT OF NOTIONAL HOUSE PROPERTY INCOME IS HEREBY DELETED. 10. NOW THE DEPARTMENT IS IN APPEAL AND THE ASS ESSEE HAS FILED CROSS OBJECTION. T HE LD. DR REITERATED THE OBSERVATIONS MADE BY THE AO IN THE ASSESSMENT ORDER DATED 30.12.2010 AND FURTHER SUBMITTED THAT THE ASSESSEE FILED COPY OF THE RENT AGREEMENT BEFORE THE LD. CIT(A) AND NOT BEFORE THE AO. IT WAS FURTHER SUBMITTED THAT THERE IS A CONTRA DI CTION IN THE OBSERVATION OF THE LD. CIT(A) WHO ON THE ONE HAND STATED THAT THE PREMISES WAS VACATED ON THE OTHER HAN D STATED THAT IT WAS GIVEN ON RENT @ RS.5,000 PER MONTH. IT WAS F URTHER SUBMITTED THAT WHEN M/S GLOBAL REALTY VENTURE LTD. WAS TAKING CARE OF THE PROPERTY THEN SERVICE CHARGES WERE TO BE PAID TO THE SAID CONCERN INSTEAD OF CHARGING RENT FROM IT. THEREFORE, THE PROVISIONS OF SECTION 23(1)(A) OF THE ACT WERE APPLICABLE TO THE FACTS OF THE ASSESSEE S CASE WHICH THE AO HAS RIGHTLY INVOKED AND ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 14 THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO. 11 . IN HIS RIVAL SUBMISSIONS THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AO DID NOT DOUBT THAT THE PROPERTY WAS VACANT. IT WAS FURTHER SUBMITTED THAT THIS PROPERTY WAS SE ALED BY THE MUNICIPAL CORPORATION ON 09.11.2006. T HEREFORE, IT COULD NOT BE LEASED OUT AND REMAINED VACANT. AS SUCH THE PROVISIONS OF SECTION 23(1)(C) OF THE ACT WERE APPLICABLE AND THE LD. CIT(A) RIGHTLY DELETED THE ARBITRATORY ADDITION MADE BY THE AO. 12 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE PROPERTY IN QUESTION WAS LEASED OUT TO M/S NIIT INSTITUTE OF INFORMATION TECHNOLOGY UNDER THE LEASE AGREEMENT DATED 12.07.2005 ON A MONTH LY RENT OF RS.8,85,000/ - . THE SAID LEASE AGREEMENT WAS FOR A PERIOD OF 3 YEARS. HOWEVER, THE ASSESSEE CLAIMED THAT THE SAID PROPERTY WAS PRE MATURELY VACATED BY THE TENANT AND REMAINED VACANT. HOWEVER, NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE L EASE AGREEMENT WAS NOT IN EXISTENCE FOR THE YEAR UNDER CONSIDERATION AND WHAT WERE THE REASONS ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 15 FOR VACATING THE PREMISES. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE CLAIMED THAT THE PREMISE WAS VACATED PREMATURE DUE TO HANGING SEALING DRIVE BY MC D AND LATER ON THE PREMISE WAS SEALED BY MCD ON 09.11.2006, THE SAID FACT HAS BEEN MENTIONED BY THE LD. CIT(A) IN PARA 5.3 OF THE ORDER DATED 14.03.2012 PASSED IN THE CA SE OF CO - OWNER SMT. AMITA GARG. HOWEVER, THESE FACTS WERE NOT BROUGHT BY THE ASSESSEE B EFORE THE AO AND NOTHING IS MENTIONED IN THE IMPUGNED ORDER OF THE LD. CIT(A) THAT NEW EVIDENCES WERE ADMITTED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER MAXIM AUDI ALTERAM PARTEM BUT IN THE PRESENT CASE, IT APPEARS THAT OPPORTUNITY WAS NOT GIVEN TO THE AO WHILE ADMITTING THE FRESH EVIDENCES , IF ANY. IN THE INSTANT CASE, IT IS ALSO NOTICED THAT THE ASSESSEE ON THE ONE HAND CLAIMED THAT THE PREMISE WAS SEALED ON THE OTHER HAND IT CLAIMED THAT A PORTION OF THE PROPERTY WAS GIVEN ON RENT TO M/S GLOBAL REALTY VENTURES LTD. @ RS.5,000/ - PER MONTH AND THE SAID COMPANY WAS TAKING CARE OF THE RENTED PROPERTY. FROM THE SAID SUBMISSIONS, IT IS NOT CLEAR THAT WHEN M/S GLOBAL REALTY VENTURES LTD. WA S TAKING CARE OF THE PROPERTY THEN WHY THE SERVICE CHARGES WERE NOT PAID TO THE SAID COMPANY, ON THE CONTRARY, THE RENT WAS RECEIVED. IT IS ALSO NOT CLEAR ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 16 WHEN THE PROPERTY IN QUESTION WAS SEALED ON 09.11.2006 AS MENTIONED IN PARA 5.3 PAGE NO. 6 OF THE ORD ER DATED 14.03.2012 BY THE LD. CIT(A) IN THE CASE OF CO - OWNER OF THE PROPERTY THEN HOW IT WAS GIVEN ON RENT TO M/S GLOBAL REALTY VENTURES LTD. 13 . FROM THE AFORESAID DISCUSSION WE ARE OF THE VIEW THAT THE FACTS OF THE PRESENT CASE WERE NOT APPRECIATED BY THE LD. CIT(A) IN RIGHT PROSPECTIVE. THEREFORE, WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 14 . IN THE CROSS OBJECTION ALSO THE ASSESSEE HAS RAISED THE SAME ISSUE WHICH WE HAVE RESTORED BACK TO THE FILE OF THE AO, T HEREFORE, NO SEPARATE FINDINGS ARE BEING GIVEN ON THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION. 15. IN THE CASE OF SMT. AMITA GARG, THE FACTS RELATED TO THE MAIN ISSUE RAISED VIDE GROUND NO. 1 IN THE DEPARTMENTAL APPEAL IS SIMILAR TO THE GROUNDS TAKEN BY THE ASSESSEE IN ITS CROSS OBJECTION WHICH ARE WORDED IN THE SAME MANNER AS WERE IN THE CASE OF SMT. RANJAN GARG. THEREFORE, OUR ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 17 FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS . 16. ONE ANOTHER ISSUE HAS BEEN RAISED IN ITA NO. 2346/DEL/2012 FOR THE ASSESSMENT YEAR 2008 - 09 IN THE CASE OF SMT. AMITA GARG VIDE GROUND NO. 3 WHICH RELATES TO THE DISALLOWANCE OF RS.5,58,089/ - MADE BY THE AO IN RESPECT OF INTEREST PAID ON LOAN, BANK CHARGES, LEGAL EXPENSES AND TELEPHONE EXPENSES. 17. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THA T THE ASSESSEE HAD DEBITED AN AMOUNT OF RS.5,58,089/ - TOWARDS INTEREST PAID ON LOAN, BANK CHARGES, LEGAL EXPENSES AND TELEPHONE EXPENSES ETC. AND HAD CLAIMED THIS AMOUNT AS BUSINESS EXPENDITURE. THE AO NOTICED THAT THE DOCUMENT FILED BY THE ASSESSEE REVEAL ED THAT SHE WAS NOT CA R R Y ING ON ANY BUSINESS AND PROFESSION DURING THE YEAR UNDER CONSIDERATION. THEREFORE, THE SAID AMOUNT WAS DISALLOWED. 18. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT SHE HAD EARNED INCOME OF RS.5,50,114/ - AS INTERE ST ON CAPITAL FROM PARTNERSHIP FIRM WHICH WAS SHOWN AS INCOME FROM BUSINESS AND PROFESSION IN ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 18 THE PROFIT AND LOSS ACCOUNT AND COMPUTATION OF INCOME. IT WAS FURTHER SUBMITTED THAT AGAINST THE SAID INCOME, THE ASSESSEE HAD CLAIMED THE INTEREST PAID AMOUNTING TO RS.5,58,089/ - , WHICH THE ASSESSEE HAD TO INCUR IN THE NORMAL COURSE OF BUSINESS. IT WAS FURTHER SUBMITTED THAT IT WAS THE NATURE OF THE BUSINESS OF THE ASSESSEE TO TAKE MONEY AS UNSECURED LOAN ON INTEREST AND INVEST THE SAME TO EARN THE INTEREST THEREUPON AND THAT THE ASSESSEE HAD INVESTED THE INTEREST BEARING FUNDS IN THE CAPITAL ACCOUNT WITH THE PARTNERSHIP FIRM M/S NAGAR PANCHWATI AND EARNED THE INTEREST INCOME OF RS.5,50,114/ - . THEREFORE, THE INTEREST EXPENSES INCURRED TO EAR N INTEREST INCOME SHOULD HAVE BEEN ALLOWED AS PER THE PROVISIONS OF SECTION 28 AS WELL AS 37 OF THE ACT. IT WAS CONTENDED THAT THE AO HAD NOT CONSIDERED THE FACTS THAT THE INCOME WAS EARNED BY WAY OF INTEREST BY THE ASSESSEE AND THE SAID INCOME HAD BEEN EA RNED THROUGHOUT THE YEAR ON BALANCE INVESTED IN PARTNERSHIP FIRM. THEREFORE, THE PRESUMPTION OF THE AO THAT NO BUSINESS ACTIVITY WAS DONE DURING THE YEAR WAS ERRONEOUS. IT WAS CONTENDED THAT THE ASSESSEE CORRECTLY CLAIMED EXPENDITURE FROM THE INTEREST INCO ME EARNED BUT THE AO HAD NOT PROPERLY APPRECIATED THE FA CTS AND MADE THE DISALLOWANCE ILLE GALLY. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 19 CIT VS VELLORE ELECTRIC CORPORATION LTD. 243 ITR 529 (CHEN) CIT VS KARANPURA COLLIERIES LTD. 201 ITR 498 (C AL) CIT VS KRITI RESORTS (P) LTD. (2011) 60 DTR 138 (HP) FRIENDS CLEARING AGENCY (P) LTD. VS CIT (2011) 58 DTR 109 (DEL) CIT VS DHANRAJGIRJI RAJA NARSINGIRJI (1973) 91 ITR 544 (SC) MATUBAI CHUNILAL PATEL VS CIT 66 ITR 408 (GUJ) 19. THE LD. CIT(A) AFTER CO NSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT APART FROM THE OTHER INCOME , AN AMOUNT OF RS.5,50,114/ - WAS RECEIVED BY THE ASSESSEE AS INTEREST FROM THE PARTNERSHIP FIRM M/S NAGAR PANCHWATI AND AS PER THE PROVISIONS OF SECTION 28 (V) OF THE ACT , T HE INTEREST RECEIVED BY THE PARTNER FROM THE FIRM WAS A BUSINESS INCOME. HE FURTHER OBSERVED THAT THE AO HAD DISALLOWED THE EXPENSES INCURRED BY THE ASSESSEE WHICH IN ACTUAL WAS THE EXPENDITURE INCURRED TO EARN THE BUSINESS INCOME. HE, THEREFORE, DELETED T HE ADDITION MADE BY THE AO BY DISALLOWING A SUM OF RS.5,58,089/ - . 20. NOW THE DEPARTMENTAL IS IN APPEAL. THE LD. DR REITERATED THE OBSERVATIONS MADE BY THE AO AND STRONGLY SUPPORTED THE ASSESSMENT ORDER DATED 29.12.2010. HE FURTHER ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 20 SUBMITTED THAT THE ASSE SSEE WAS NOT HAVING ANY BUSINESS ACTIVITY, THEREFORE, THE INTEREST EXPENSES WERE WRONGLY CLAIMED BY THE ASSESSEE. AND THE AO RIGHTLY MADE THE DISALLOWANCE. 21. IN HIS RIVAL SUBMISSIONS THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFO RE THE AUTHORITIES BELOW AND STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 2 2 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THA T THE CLAIM OF THE ASSESSEE WAS THAT THE LOANS WERE RAISED FOR MAKING THE INVESTMENT IN THE PARTNERSHIP FIRM AND FROM THE SAID FIRM, THE ASSES SEE EARNED THE INTEREST INCOME, T HEREFORE, THE INTEREST PAID ON THE LOANS RAISED FOR MAKING THE INVESTMENT IN THE PARTNERSHIP FIRM WAS ALLOWABLE AGAINST THE INTEREST INCOME EARNED. HOWEVER, IN THE PRESENT CASE, IT IS NOT CLEAR FROM THE MATERIAL AVAILABLE ON THE RECORD AS TO WHETHER THE ASSESSEE MADE THE INVESTMENT IN THE PARTNERSHIP FIRM FROM THE INTEREST BEARING LOAN S ON WHICH THE INTEREST OF RS.5,58,089/ - WAS PAID AND THAT THERE WAS A DIRECT NEXUS BETWEEN THE INVESTMENT MADE IN THE PARTNERSHIP FIRM AND ITA NOS. 2346, 2347 & 2349 /DEL/2012 CO NOS. 250, 255 & 256/DEL/2012 RANJANA & AMITA GARG 21 INTEREST BEARING LOANS RAISED. WE, THEREFORE, IN THE ABSENCE OF CLEAR FACTS AVAILABLE ON RECORD, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE ALSO TO THE FIE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROV I DING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 23 . IN THE RESULT, APPEAL S OF THE DEPARTMENT AND THE CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 18 /04 / 2016 ) SD/ - SD/ - ( H. S. SIDHU ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18 /04 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR