JAIPRAKASH N. SHARMA, MUMBAI V. I.T.O. - 30(2)(3), MUMBAI

ITA 1043/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2478 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 22-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 1043/MUM/2018 (ASSESSMENT YEAR: 2005-06) SHRI JAIPRAKASH N. SHARMA D-203, VEENA NAGAR S.V. ROAD, MALAD (W) MUMBAI 400064 VS. INCOME TAX OFFICER - 30(2)(3) C-10, PRATYAKSHKAR BHAWAN BKC, BANDRA (E) MUMBAI 400051 PAN ACRPS2600R APPELLANT RESPONDENT APPELLANT BY: SHRI MANISH AGARWAL RESPONDENT BY: SHRI S.K. BEPARI DATE OF HEARING: 27.09.2018 DATE OF PRONOUNCEMENT: 14.11.2018 O R D E R PER SAKTIJIT DEY, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-41, MUMBAI DAT ED 01.11.2017AND IT RELATES TO A.Y. 2005-06. 2. THE ISSUE IN DISPUTE IN THE PRESENT APPEAL IS CONFI NED TO ADDITION OF AN AMOUNT OF ` 1,76,400/- UNDER THE HEAD INCOME FROM HOUSE PROPER TY. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, AN I NDIVIDUAL, FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR O N 14.07.2005 DECLARING TOTAL INCOME OF ` 31,553/-. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS INITIALLY PROCESSED UNDER SECTION 143( 1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT'). SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED THAT THE ASSESSEE HAS NOT DISCLOSED ASSETS RECEIVED BY HIM ON RETIREMENT FROM A PARTNERSHIP FIRM, THE ASSESSING O FFICER (AO) REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. DURING ASS ESSMENT PROCEEDINGS THE AO OBSERVED THAT BY VIRTUE OF PARTNERSHIP DEED DATED 09.12.2002 THE ASSESSEE AND HIS WIFE HAD TAKEN OVER THE BUSINESS O F M/S. GLOBE TRANSPORT ITA NO. 1043/MUM/2018 SHRI JAIPRAKASH N. SHARMA 2 CORPORATION. WHEREAS, THE ASSESSEE HAS NOT OFFERED ANY SALARY/ REMUNERATION/INTEREST ON CAPITAL FOR TAXATION. HE A LSO OBSERVED THAT THE ASSESSEE HAS NOT OFFERED ANY INCOME FROM HOUSE PROP ERTY. THE AO NOTED THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES ASSESS MENT IN ASSESSEES OWN CASE FOR A.Y. 2004-05 WAS REOPENED AND WHILE COMPLE TING THE ASSESSMENT THE AO HAS TREATED AN AMOUNT OF ` 1,76,400/- TOWARDS RENT RECEIVED FROM HOUSE PROPERTY. ACCORDINGLY, HE MADE SIMILAR ADDITI ON IN THE IMPUGNED ASSESSMENT YEAR. THOUGH, THE ASSESSEE CHALLENGED TH E ADDITION BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, HE MET WITH NO SUCCESS. 4. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, ID ENTICAL ADDITION MADE IN A.Y. 2004-05, ON THE BASIS OF WHICH ADDITIO N WAS MADE IN THE IMPUGNED ASSESSMENT YEAR, WAS RESTORED BY THE TRIBU NAL TO THE AO FOR FRESH ADJUDICATION. HE SUBMITTED, WHILE DECIDING TH E ISSUE IN PURSUANCE TO THE DIRECTIONS OF THE TRIBUNAL, THE AO ACCEPTED ASS ESSEES CLAIM. THUS, HE SUBMITTED, ADDITION MADE SHOULD BE DELETED. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE DEPARTMENTAL AUTHORITIES. 6. I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON-GOING THROUGH THE IMPUGNED ASSESSMENT OR DER AS WELL AS THE ORDER OF THE FIRST APPELLATE AUTHORITY IT IS VERY M UCH CLEAR THAT PURELY RELYING UPON THE OBSERVATIONS OF THE AO IN A.Y. 200 4-05 THE ADDITION OF ` 1,76,400/- UNDER THE HEAD INCOME FROM HOUSE PROPER TY HAS BEEN MADE. NOTABLY, THE ISSUE RELATING TO THE AFORESAID ADDITI ON MADE IN A.Y. 2004-05 CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN IT A NO. 4233/MUM/2014 AND THE TRIBUNAL, VIDE ORDER DATED 06.01.2016, HAD RESTORED THE ISSUE TO THE AO FOR CONSIDERING AFRESH. IT IS ALSO A FACT ON RECORD THAT WHILE CONSIDERING THE ISSUE RELATING TO THE AFORESAID ADD ITION IN A.Y. 2004-05 IN PURSUANCE TO THE DIRECTIONS OF THE TRIBUNAL, THE AO HAS ACCEPTED ASSESSEES CLAIM AND HAS NOT MADE THE ADDITION OF ` 1,76,400/- TOWARDS NOTIONAL HOUSE PROPERTY INCOME. THUS, WHEN THE AO H IMSELF HAS CONCLUDED THAT NO ADDITION ON ACCOUNT OF DEEMED RENT CAN BE M ADE WHILE DECIDING ITA NO. 1043/MUM/2018 SHRI JAIPRAKASH N. SHARMA 3 THE ISSUE IN A.Y. 2004-05, NO ADDITION CAN BE MADE IN THE IMPUGNED ASSESSMENT YEAR UNDER IDENTICAL FACTS AND CIRCUMSTA NCES. ACCORDINGLY, THE ADDITION MADE IS DELETED. GROUNDS ARE ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH NOVEMBER, 2018. SD/ - (SAKTIJIT DEY) JUDICIALMEMBER MUMBAI, DATED: 14 TH NOVEMBER, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -41, MUMBAI 4. THE PR.CIT- 24/30, MUMBAI 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.