M/s. Vohra Builders Pvt. Ltd., New Delhi V. ACIT, New Delhi

CO 45/DEL/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 6971 (ITAT-DELHI)
• Duration Of Justice: 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2002-2003
• Appeal Filed On: 06-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C B SINGH
• Assessee Lawyers: SHLRI SANJEEV RAI MEHRA
• Section: 143(3); 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER ITA NO.134/DEL./2012 (ASSESSMENT YEAR : 2002-03) ACIT, CIRCLE 17(1), VS. M/S VOHRA BUILDERS PVT. LTD., NEW DELHI. 10, COMMUNITY CENTRE, ZAMRUDPUR, KAILASH COLONY, NEW DELHI. (PAN/GIR NO.AAACV0606J) C.O. NO.45/DEL./2012 (ASSESSMENT YEAR : 2002-03) M/S VOHRA BUILDERS PVT. LTD., VS. ACIT, CIRCLER 17 (1), NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHLRI SANJEEV RAI MEHRA, CA REVENUE BY : SHRI C.B. SINGH, SR.DR ORDER PER U.B.S. BEDI, J.M. THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF T HE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY CIT(A)-XIX, NEW DELHI D ATED 3.10.2011. 2. IN APPEAL OF THE DEPARTMENT FOLLOWING SINGLE EFF ECTIVE GROUND HAS BEEN RAISED: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN GIVING DIRECTIONS TO THE ASSESSING OFFICER TO FO LLOW THE GUIDELINES ISSUED BY THE HONBLE ITAT IN THE ORDER DATED 20.03.2008 VIDE ORD ER I.T.A. NO.1256 FOR DETERMINING THE ALV OF THE PROPERTY BY IGNORING THE FACT THAT THE REASSESSMENT WAS FRAMED KEEPING IN VIEW THE DIRECTIONS OF THE HO NBLE ITAT. 3. IN THE CROSS OBJECTION OF THE ASSESSEE FOLLOWING EFFECTIVE SINGLE GROUND HAS BEEN RAISED: ITA NO.134/DEL./12 & C.O NO.45/DEL./12 (A.Y. : 2002-03) 2 THE LD.CIT(A)-XIX, NEW DELHI ERRED IN LAW AND ON F ACTS IN HOLDING THAT BY A SIMPLE CORRIGENDUM THE ASSESSING OFFICER COULD ALTE R THE SECTION UNDER WHICH ASSESSMENT ORDER WAS PASSED AND THEREBY REJECTING T HE GROUND NOS.1 & 2 RAISED BY THE APPELLANT AS TO THE VALIDITY AND LIMITATION OF ORDER PASSED U/S 147/143(3) OF THE I.T. ACT, 1961. 4. SO FAR AS CROSS OBJECTION OF THE ASSESSEE IS CON CERNED, LD.DR. SUBMITTED THAT THE GROUND RAISED IN THE C.O. DOES NOT SURVIVE IN VIEW OF THE CORRIGENDUM ISSUED BY THE ASSESSING OFFICER. SO, SAME SHOULD BE DISMISSED AND LD.COUNSEL FOR THE ASSESSEE COULD NOT CONTROVERT THIS PLEA OF THE LD.DR AND SUBMITTED THAT THE MISTAKE COMMITTED IN MENTIONING OF WRONG PROVISION HAS BEEN CURED BY ISS UING CORRIGENDUM. THEREFORE, THE TRIBUNAL CAN DECIDE THE ISSUE ACCORDINGLY. 5. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE MATERIAL ON RECORD, WE FIND THAT FOLLOWING CORRIGENDUM DATED 9.5.2010 HAS BEEN PASSE D BY THE CONCERNED ASSESSING OFFICER: CORRIGENDUM IN THIS CASE ASSESSMENT WAS MADE ON 29.12.2009 AT A N INCOME OF RS.21,40,924/-. THE SECTION OF I.T. ACT, 1961 HAD TO BE MENTIONED AS 143(3) READ WITH SECTION 254 INSTEAD OF 147/143 OF THE I.T. ACT , 1961. IT IS, THEREFORE, SECTION OF THE ORDER PASSED ON 29.12.2009 BE READ AS U/S 14 3(3) READ WITH SECTION 254 OF THE I.T. ACT, 1961 DATED 29.12.2009. 6. SINCE NECESSARY CORRECTION HAS ALREADY BEEN MADE IN MENTIONING OF THE CORRECT PROVISION BY ISSUING ABOVE NOTED CORRIGENDUM BY THE ASSESSING OFFICER AND LD.CIT(A) HAS CONSIDERED SUCH CORRIGENDUM TO REJECT ASSESSEE S PLEA, THEREFORE, THE ONLY EFFECTIVE GROUND RAISED IN THE C.O. OF THE ASSESSEE IS DISMI SSED. AS SUCH C.O. OF THE ASSESSEE IS DISMISSED. ITA NO.134/DEL./12 & C.O NO.45/DEL./12 (A.Y. : 2002-03) 3 7. AS REGARDS APPEAL OF THE DEPARTMENT IS CONCERNED, F ACTS ARE THAT THE ASSESSEE COMPANY FILED A RETURN OF INCOME ON 08.11.2002 DECL ARING TOTAL INCOME OF RS.16,805/- THE DETAILS OF WHICH ARE AS UNDER: INCOME FROM HOUSE PROPERTY RS71,400 INCOME FROM BUSINESS (-)RS. 54,595 TOTAL = RS. 16,805 THE RETURN OF INCOME WAS PROCESSED U/S 143(1) AND L ATER AN ASSESSMENT WAS COMPLETED ON 25.02.2005 U/S 143(3) IN WHICH INC OME FROM HOUSE PROPERTY WAS DETERMINED AT RS.45,87,696 WHILE DISALLOWING BU SINESS LOSS OF RS.54,595. THE TOTAL INCOME DETERMINED WAS RS.32,11,388 AGAINS T RETURNED INCOME OF RS. 16,805. 8. THE ASSESSEE FILED AN APPEAL TO THE CIT(A) WHO V IDE ORDER DATED 24.02.2006 CONFIRMED THE DETERMINATION OF ALV OF THE PROPERTY IN QUESTION WHILE SETTING ASIDE THE ISSUE OF BUSINESS LOSS. BEING AGGRIEVED WITH THE OR DER OF CIT(A) WITH REGARD TO CONFIRMATION OF ALV, THE APPELLANT AGITATED THE MAT TER BEFORE HON'BLE ITAT WHICH VIDE ITS ORDER DATED 20.03.2008 IN ITA NO.1256/DEL/2006 HAS RESTORED THE ISSUE OF DETERMINATION ALV TO THE FILE OF THE AO. THE DIRECT IONS OF HON'BLE ITAT ARE AS UNDER: 'AS LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH CO URT IN THE CASE OF G.JOHN TINGSON & CO. PVT. LTD. 207 CTR 423, WE DIRE CT THE ASSESSING OFFICER TO CALCULATE THE STANDARD RENT. IT IS NOT N ECESSARY THAT THE STANDARD RENT SHOULD BE FIXED BY THE RENT CONTROLLER UNDER T HE RENT CONTROL ACT FOR WHICH IT TO BE TAKEN FOR THE PURPOSE OF SECTION 23( 1). SINCE THE ASSESSING OFFICER HAS NOT CORRECTLY COMPUTED THE SUM FOR WHIC H THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. IT IS APPROPRIATE TO RESTORE T4E MATTER TO THE ASSESSING OFFICER FOR FRESH DETER MINATION UNDER SECTION 23(1) F ACCORDANCE WITH THE LAW AS DISCUSSED HEREIN ABOVE. ' 9. AFTER RECEIPT OF THE ORDER OF HOH'BLE ITAT THE A O INITIATED CONSEQUENTIAL ASSESSMENT PROCEEDINGS TO GIVE EFFECT TO THE DIRECT IONS OF THE HON'BLE ITAT. THE AO PASSED THE CONSEQUENTIAL ORDER DATED 29.12.2009 AN D RECOMPUTED THE ALV AS DETAILED BELOW AS SEEN FROM THE CONSEQUENTIAL ORDER: ITA NO.134/DEL./12 & C.O NO.45/DEL./12 (A.Y. : 2002-03) 4 'ACCORDINGLY, FROM THE SUBMISSIONS OF THE ASSESSEE AND THAT OF THE ASSESSING OFFICER'S OBSERVATION DURING THE COURSE O F ORIGINAL ASSESSMENT PROCEEDINGS ABOVE, THE FINAL ADJUDICATION IS TAKEN TO COMPUTE THE AL V AT @ RS.30/- PM PER SQ. FT. (MUNICIPAL VALUATION- COPY ENCLOSED AS ANNEXURE A) AND THE SUM OF RS.21,40,924/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. I AM SATISFIED THAT TO THE EXTENT OF RS.L,44,00,000/- THE ASSESSEE HAS CONCEALED/FURNISHED INACCURATE PARTICU LARS OF ITS INCOME AND PENALTY PROCEEDINGS U/S 271(1)(C) HAVE BEEN INITIAT ED SEPARATELY. ACCORDINGLY THE COMPUTATION IS MADE AS UNDER: ANNUAL RENTAL INCOME @RS.30/- PM PER SQFT FOR =RS .30,58,463/- 8495.73 SQ FT X 12 LESS DEDUCTION U/S 24 @ 30% =RS.9,17,539/- INCOME FROM HOUSE PROPERTY =RS.21,40,924/- 10. ASSESSEE TOOK UP THE MATTER IN APPEAL AND CHALL ENGED THE ACTION OF THE ASSESSING OFFICER BY RAISING GROUND NO.3 IN THIS REGARD AS UN DER: 3. THE LEARNED DY.CIT CIRCLE 17(1) ERRED IN LAW AND ON FACTS IN TAKING THE ANNUAL VALUE OF PROPERTY U/S 23(1) AT RS.30,58,463/ - AGAINST THE STANDARD RENT OF RS.L,87,389/- AS DIRECTED BY THE ITAT IN AP PEAL ORDER ITA NO.1256/DEL/2006 DATED 20.03.2008. 11. THE LD.CIT(A) PASSED HIS ORDER ON THIS ISSUE A S PER PARA.8 AS UNDER: 8. THE MAIN GRIEVANCE OF THE APPELLANT IS THAT THE AO HAS NOT FOLLOWED THE DIRECTIONS OF HON'BLE ITAT WITH REGARD TO DETERMINA TION OF ALV OF THE PROPERTY IN QUESTION. THE AR HAS BROUGHT TO MY NOTICE THAT T HE AO HAS RECOMPUTED THE ALV OF THE PROPERTY FOR ASSESSMENT YEAR 2006-07 AS PER THE DIRECTIONS OF HON'BLE ITAT. THE CONTENTION OF THE AR, PRIMA FACIE, IS TEN ABLE. HENCE, THE AO IS HEREBY DIRECTED TO FOLLOW THE GUIDELINES ISSUED BY THE HON 'BLE ITAT IN THE ORDER DATED 20.03.2008 FOR DETERMINING THE ALV OF THE PROPERTY IN QUESTION FOR THE IMPUGNED ASSESSMENT YEAR ALSO. ACCORDINGLY, GROUND NO.3 IS PARTLY ALLOWED. 12. AGGRIEVED BY THE ORDER OF CIT(A), DEPARTMENT HA S COME UP IN APPEAL AND IT WAS STRONGLY PLEADED THAT IN A WAY CIT(A) HAS SET ASIDE THE ORDER OF THE ASSESSING OFFICER WITH THE DIRECTION TO PASS A FRESH ORDER BY FOLLOWI NG ITAT DIRECTION WHEREAS, THERE IS NO SUCH PROVISION BY VIRTUE OF WHICH CIT(A) CAN PASS SUCH DIRECITON AND IF SUCH DIRECTION ITA NO.134/DEL./12 & C.O NO.45/DEL./12 (A.Y. : 2002-03) 5 HAS TO BE PASSED, SAME SHOULD BE PASSED BY THE TRIB UNAL. LD.AR HAS BEEN HEARD ON THIS ISSUE WHO HAS RAISED NO OBJECTION IN CASE THE MATTE R IS RESTORED BACK TO THE ASSESSING OFFICER TO DETERMINE THE ALV BY FOLLOWING ITAT GUID ELINES. 13. AFTER HEARING BOTH THE SIDES AND CONSIDERING TH E MATERIAL ON RECORD, WE FIND THERE WAS CLEAR DIRECTION PASSED BY THE ITAT IN THIS CA SE TO DETERMINE ALV OF THE PROPERTY IN VIEW OF DIRECTION ISSUED WHICH IS FOUND TO HAVE NOT BEEN PROPERLY FOLLOWED BY THE ASSESSING OFFICER TO GIVE EFFECT TO ITATS ORDER. THEREFORE, WE ARE OF THE VIEW THAT IT WOULD MEET THE ENDS OF JUSTICE, IF MATTER IS RESTOR ED BACK ON THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO FOLLOW THE GUIDELINES ISSUED BY THE ITAT IN ORDER DATED 20.3.2008 FOR DETERMINING OF ALV OF THE PROPERTY IN QUESTION FOR THE IMPUGNED ASSESSMENT YEAR AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 14. AS A RESULT, APPEAL OF THE DEPARTMENT GETS ACCE PTED FOR STATISTICAL PURPOSES AND THE C.O. OF THE ASSESSEE GETS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23/03/2012. SD/- SD/- (K.G. BANSAL) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : MARCH 23, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XIX, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT ITA NO.134/DEL./12 & C.O NO.45/DEL./12 (A.Y. : 2002-03) 6