Pioneer Barrels Mfg.Co.Pvt. Ltd., Baroda V. The ACIT.,Circle-4, Baroda

ITA 1109/AHD/2012

• Counselvise Citation: 110920514 RSA 2012
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Assessee Lawyers: M J SHAH
• Keywords: Assessment record

Judgement Text

, , , , SMC, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, SMC BENCH . .. . . .. . , !' # ' !' # ' !' # ' !' # ' BEFORE SHRI G.C. GUPTA, VICE-PRESIDENT ITA NO.1109/AHD/2012 [ASSTT.YEAR : 2002-2003] M/S.POINEER BARRELS MFG. CO. LTD. 108, BELL-E-VISTA COMPLEX RACE COURSE CIRCLE BARODA. PAN : AABCP 1327 M /VS. ACIT, CIR.4 BARODA. ( (( (%& %& %& %& / APPELLANT) ( (( ('(%& '(%& '(%& '(%& / RESPONDENT) )* + , #/ ASSESSEE BY : SHRI M.J. SHAH . + , #/ REVENUE BY : SHRI D.K. MISHRA, SR.DR / + *01/ DATE OF HEARING : 9 TH DECEMBER, 2013 234 + *01/ DATE OF PRONOUNCEMENT : 10-01-2014 #5 / O R D E R THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2002-03 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-III, BAROD A DATED 20.03.2012. 2. THE ONLY GROUND OF APPEAL OF THE ASSESSEE IS AS UNDER: 1) THE LD.CIT(A) ERRED IN CONFIRMING THE ACTION OF AO ESTIMATING RENTAL INCOME AS INCOME AT RS.226560/- ( 326561/-) EVEN THOUGH THERE WAS NO RENTAL & OTHER INCOME. INSPITE OF ALL THE DETAILS GIVEN ABOUT THE PROPERTY AND RENT HE DID NO T VERIFY THE FACTS AND RELIED ON EARLIER YEARS ESTIMATION WITHOUT ANY EVIDENCE. ITA NO1109/AHD/2012 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS IN SECOND ROUND OF LITIGATION BEFORE THE TRIBUNAL. HE SUBMITTED THAT THE PROPERTY IN QUESTION WAS NOT GIVEN ON RENT DURING T HE RELEVANT PERIOD AND ADDITION WAS MADE ON THE BASIS OF PAST ASSESSMENT R ECORDS OF THE ASSESSEE. HE SUBMITTED THAT THE TRIBUNAL IN FIRST ROUND OF LITIGATION VIDE ITS ORDER DATED 19.2.2009 HAS RESTORED THIS ISSUE T O THE FILE OF THE AO WITH CERTAIN DIRECTIONS AND THE AO HAS AGAIN MADE THE SA ME ADDITION WITHOUT PLACING ANY MATERIAL ON RECORD TO PROVE THAT THE AS SESSEE HAS LET OUT THE PROPERTY AT ANY POINT OF TIME DURING THE RELEVANT P ERIOD. HE REFERRED TO THE CERTIFICATE OF M/S.MOTOROL SPECIALTY OIL INDIA LTD. (PREVIOUS TENANT) WHO HAVE CONFIRMED THAT THEY HAVE VACATED THE PROPE RTY LONG BACK AND DURING THE FINANCIAL YEAR 2001-2002 HAD NOT TAKEN A NY PART OF THE PROPERTY ON RENT AND ALSO CONFIRMED THAT NO PAYMENT WAS MADE TO THE ASSESSEE-COMPANY. THE LEARNED COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THIS CONFIRMATION OF M/S.MOTOROL SPECIALTY OIL INDI A LTD. WAS NOT ADMITTED BY THE LEARNED CIT(A). THE LEARNED DR OPP OSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . HE SUBMITTED THAT THE CONFIRMATION OF M/S.MOTOROL SPECIALTY OIL INDIA LTD. WAS NOT FILED BEFORE THE CIT(A) AND SHOULD NOT BE ADMITTED NOW IN SECOND APPELLATE STAGE. HE RELIED ON THE ORDERS OF THE AO AND THE C IT(A). 4. I HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PER USED THE COPIES OF VARIOUS DOCUMENTS FILED IN THE COMPILATION BY THE A SSESSEE. I FIND THAT THE ASSESSEE IS IN SECOND ROUND OF LITIGATION BEFORE TH E TRIBUNAL. THE ASSESSEE HAS PLEADED RIGHT FROM THE BEGINNING BEFOR E THE AO AND THE CIT(A) THAT THE PROPERTY WAS NOT GIVEN ON RENT, AND THEREFORE, THE RENTAL INCOME COULD NOT BE ADDED IN THE HANDS OF THE ASSES SEE ON THE BASIS OF THE PAST ASSESSMENT RECORDS OF THE ASSESSEE. I FIND TH AT THE DEPARTMENT HAS ITA NO1109/AHD/2012 FAILED TO PRODUCE ANY MATERIAL ON RECORD TO SUGGEST THAT THE CLAIM OF THE ASSESSEE WAS FALSE AND THAT THE ASSESSEE HAS IN FAC T LET OUT THE PROPERTY IN QUESTION DURING THE RELEVANT YEAR. THE ASSESSEE SE EMS TO HAVE BEEN PUT BY THE DEPARTMENT TO PROVE SOMETHING NEGATIVE, WHIC H THE ASSESSEE IS NOT EXPECTED OR SUPPOSED TO PROVE. THE TRIBUNAL IN THE FIRST ROUND OF LITIGATION VIDE THEIR ORDER DATED 19.2.2009 HAS REC ORDED THAT THE ASSESSEE WAS ASSESSED THE INCOME FROM HOUSE PROPERTY ON ESTI MATE BASIS WITHOUT BRINGING ON RECORD THE PROPERTY HELD BY THE ASSESSE E, AND THE ANNUAL LETTING VALUE. THE ADDITION SEEMS TO HAVE BEEN MAD E ON ASSUMPTION AND SURMISE ONLY. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT THE RENTAL INCOME COULD NOT BE TAXED IN T HE HANDS OF THE ASSESSEE WITHOUT BRINGING ANY MATERIAL ON RECORD TO SUGGEST THAT THE ASSESSEE WAS OWNER OF THE PROPERTY, AND HAS RECEIVE D ANY RENTAL INCOME FROM THE SAME, DURING THE RELEVANT YEAR. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, I HOLD THAT NO CASE OF ADDITION OF THE RENTAL INCOME COULD BE MADE OUT BY THE DEPARTMENT, WHICH IS ACCORDINGLY DE LETED AND THE GROUND NO.1 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD