DR CHETAN J UNADKAT, MUMBAI V. ASST CIT11(2), MUMBAI

ITA 1141/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78757 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH MUM BAI BEFORE SHRI I.P. BANSAL, JM & SHRI N.K. BILLAIYA, AM ITA NO.1141/MUM/2013 (ASSESSMENT YEAR : 2009-10) DR. CHETAN J UNADKAT WALLACE APARTMENT, 2-A, FLAT NO. 602, 6 TH FLOOR, NAUSHIR BHARUCHA MARG, MUMBAI 400 007. VS. ASST. COMMISSIONER OF INCOME TAX 11(2), MUMBAI. PAN NO. : AAAPU3752H ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY : SHRI A.C. TEJPAL ASSESSEE BY : SHRI K. GOPAL DATE OF HEARING : 01.05.2014 DATE OF PRONOUNCEMENT : 01.05.2014 O R D E R PER N.K. BILLAIYA, AM 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF CIT(A)-3, MUMBAI DT. 7.12.2012 PERTAINING TO A.Y. 2009-10. T HE GRIEVANCES OF THE ASSESSEE CAN BE SUMMARIZED IN THE FORM OF FOLLOWING CHART : SR. NO. PARTICULARS AMOUNT (RS.) A DISALLOWANCE OF INTEREST PAID ON HOUSING LOAN 1,5 0,000/- B ADDITIONS ON ACCOUNT OF HOUSE PROPERTY INCOME 6,40,654/- C ADDITIONS ON ACCOUNT OF LOW DRAWINGS 50,000/- D DISALLOWANCE OF EXPENSES ON ACCOUNT OF PERSONAL USAGE OF CAR 39,976/- 2 ITA NO. 1141/MUM/2013 2. AT THE VERY OUTSET, THE COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING THE GRIEVANCES RAISED VIDE SR. NOS. C & D. THESE TWO DISALLOWANCES ARE ACCORDINGLY CONFIRMED. GRIEVANCES RAISED VIDE SR. NOS. C & D ARE DISMISSED. 3. THE FIRST GRIEVANCE OF THE ASSESSEE RELATES TO D ISALLOWANCE OF INTEREST PAID ON HOUSING LOAN AND THE SECOND RELATED GRIEVANCE IS IN RESPECT OF ADDITION ON ACCOUNT OF HOUSE PROPERTY INCOME. DURING THE COURS E OF THE SCRUTINY ASSESSMENT PROCEEDINGS, THE AO NOTICES THAT THE ASSESSEE HAS C LAIMED LOSS OF RS.1.50 LACS UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE A SSESSEE WAS ASKED TO SUBSTANTIATE HIS CLAIM. SINCE THE ASSESSEE COULD N OT PRODUCE LOAN SANCTION LETTER OR ANY OTHER DOCUMENTS, THE LOSS OF RS. 1.50 LACS WAS DISALLOWED. THE AO FURTHER NOTICED THAT APART FROM SELF-OCCUPIED PROPE RTY, THE ASSESSEE WAS ALSO OWNING TWO OTHER PROPERTIES. THE ASSESSEE WAS ASKE D TO SUBMIT THE MUNICIPAL RATEABLE VALUE CERTIFICATE WHICH THE ASSESSEE FAILE D TO SUBMIT. THE AO PROCEEDED TO DETERMINE THE ALV OF THE PROPERTY TAKI NG 8% OF THE VALUE OF THE PROPERTY AS APPEARING IN THE BALANCE-SHEET AND COMP UTED THE HOUSE PROPERTY INCOME AT RS.6,40,654/-. AGGRIEVED BY THESE TWO AD DITIONS/DISALLOWANCES, THE ASSESSEE CARRIED THE MATTER BEFORE CIT(A). BEFORE CIT(A) THE ASSESSEE SUBMITTED THE INTEREST CERTIFICATE ON HOUSING LOAN FROM UNION BANK OF INDIA. CIT(A) OBSERVED THAT THE SAID HOUSING LOAN WAS TAKE N FROM UNION BANK OF INDIA FOR THE PROPERTY SITUATED AT PUNE WHICH WAS CONSIDE RED BY THE ASSESSEE HIMSELF AS A SECOND SELF-OCCUPIED PROPERTY. CIT(A) WAS OF THE OPINION THAT THE INTEREST CLAIMED IS ALLOWABLE IN RESPECT OF ONLY ONE PROPERT Y AND THEREFORE CONFIRMED THE FINDINGS OF THE AO. INSOFAR AS THE ADDITION OF RS. 6,40,654/- IS CONCERNED, CIT(A) OBSERVED THAT THE ASSESSEE HAS FAILED TO PRODUCE TH E MUNICIPAL RATEABLE VALUE CERTIFICATE, THEREFORE, AO WAS JUSTIFIED IN TAKING 8% OF THE VALUE OF THE PROPERTY FOR DETERMINING THE NOTIONAL RENT. THE FINDINGS OF AO WERE CONFIRMED. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 3 ITA NO. 1141/MUM/2013 3.1 THE COUNSEL FOR THE ASSESSEE STATED THAT THE AS SESSEE IS RESIDING IN WALLACE APARTMENT WHICH IS CONSIDERED AS ASSESSEES SELF-OCCUPIED PROPERTY. THE HOUSE PROPERTY AT CHESTERFIELD, PUNE WAS CONSID ERED BY THE ASSESSEE AS HIS WEEKEND HOME AND THEREFORE, ASSESSEE HAS TREATE D THE SAME AS SECOND SELF-OCCUPIED PROPERTY. IT IS THE SAY OF THE COUNS EL THAT THE HOUSING LOAN FROM UNION BANK OF INDIA WAS TAKEN FOR THE PURPOSE OF TH IS PROPERTY ON WHICH THE ASSESSEE HAS PAID INTEREST OF RS.7,97,442/-. THE C OUNSEL FURTHER STATED THAT THE INTEREST CERTIFICATE COULD NOT BE PRODUCED BEFORE T HE AO BECAUSE THE ORIGINAL CERTIFICATE WAS LOST AND THE ASSESSEE WAS IN THE PR OCESS OF GETTING THE DUPLICATE CERTIFICATE. THE COUNSEL CONTINUED TO STATE THAT T HE THIRD PROPERTY I.E. FLAT AT ELDORA, PUNE WAS STILL UNDER CONSTRUCTION DURING TH E YEAR UNDER CONSIDERATION AND THE POSSESSION OF THE SAME WAS RECEIVED ON 31.7 .2009. THE COUNSEL SUBMITTED THE MUNICIPAL RATEABLE VALUE CERTIFICATE IN RESPECT OF FLAT AT CHESTERFIELD, PUNE. 3.2 THE LD. DR STATED THAT THE MUNICIPAL RATEABLE V ALUE CERTIFICATE WAS NEVER PRODUCED BEFORE THE LOWER AUTHORITIES. ON OTHER IS SUES, THE LD. DR STRONGLY RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES. 3.3 WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW. WE FIND THAT THE ASSESSEE WAS THE OWNER OF TWO FLATS I.E. W ALLACE APARTMENT AND CHESTERFIELD, PUNE. THE THIRD FLAT I.E. ELDORA, PU NE WAS UNDER CONSTRUCTION DURING THE IMPUGNED YEAR. WALLACE APARTMENT IS CONSIDERED AS THE SOP. FLAT AT CHESTERFIELD, PUNE, THOUGH WAS CONSIDERED BY THE AS SESSEE AS HIS WEEKEND HOME AND SECOND SOP, HOWEVER, THERE IS NO SUCH PROV ISION IN THE ACT TO CONSIDER A WEEKEND HOME AS SECOND SELF-OCCUPIED PRO PERTY. AT THE SAME TIME, WE FIND THAT THE ASSESSEE HAS TAKEN HOUSING LOAN FO R THE PURCHASE OF FLAT AT CHESTERFIELD, PUNE ON WHICH HE HAS PAID INTEREST OF RS.7,97,448/-. SINCE THE MUNICIPAL RATEABLE VALUE CERTIFICATE IN RESPECT OF CHESTERFIELD FLAT WAS NEVER 4 ITA NO. 1141/MUM/2013 PRODUCED BEFORE THE LOWER AUTHORITIES, IN THE INTER EST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE BACK TO THE FILE OF AO. THE ASS ESSEE IS DIRECTED TO SUBMIT THE MUNICIPAL RATEABLE VALUE CERTIFICATE IN RESPECT OF CHESTERFIELD FLAT, PUNE TO THE AO. THE AO IS DIRECTED TO DETERMINE THE ALV CONSID ERING THE MUNICIPAL RATEABLE VALUE CERTIFICATE FOR DETERMINING THE ALV AS PER THE PROVISIONS OF THE LAW AND THEREAFTER DECIDE THE CLAIM OF INTEREST AS PER THE PROVISIONS OF LAW AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 01.05.2014. SD/- (I.P. BANSAL) SD/- (N.K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : MUMBAI DATED : 01.05.2014 SSL, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)-III, MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. TRUE COPY