RAJESH YAGNIK, MUMBAI V. DCIT CEN CIR OSD-1, MUMBAI

ITA 1341/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3509 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 05-03-2015
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.1341/M/2015 (ASSESSMENT YEAR: 2011 - 2012 ) RAJESH YAGNIK, 601, SIDDARTH APARTMENT, OPP. VENUS SOCIETY, R.G. THANDANI ROAD, WORLI, MUMBA 400 018. / VS. DCIT, CENTRAL CIRCLE, OSD - 1, R.NO.409, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI 400020. ./ PAN : AAQPY1369Q ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI AARSI PRASAD, JCIT / RESPONDENT BY : SHRI AJAY, DR / DATE OF HEARING : 27 .06.2016 / DATE OF PRONOUNCEMENT : 27 .06.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 5.3.2015 IS AGAINST THE ORDER OF THE CIT (A) - 52, MUMBAI DATED 17.12.2014 FOR THE ASSESSMENT YEAR 2011 - 2012. 2. IN THIS APPEAL, ASSESSEE RAISED A SOLITARY GROUND QUESTIONING THE CIT (A)S ACTION IN CONFIRMING THE ADDITION O F RS. 1,75,000/ - MADE BY THE AO. ON FACTS, AO FOUND ASSESSEE OWNS 4 FLATS WITH 50% SHARE IN EACH OF THEM. ASSESSEE MERGED ALL THE FLATS AND CREATED ONE FUNCTIONAL HOUSE. ASSESSEE CLAIM ED ENTIRE HOUSE AS SELF OCCUPIED PROPERTY (SOP). HOWEVER, AO ALLOWED ONE OF THE FOUR FLATS AS SOP AND SUBJECTED OTHER THREE TO TAX. IN THIS REGARD, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS APPEAL IS REQUIRED TO BE REMANDED TO THE FI LE OF THE AO IN CONSISTENT WITH THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE AY 2009 - 2010 VIDE ITA NO.1340/M/2015, DATED 12.1.2016. FURTHER, BRINGING MY ATTENTION TO THE DIVISION BENCH ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE AS WE LL AS HIS WIFES OWN CASE IN ITA NOS.5425, 5430 & 5431/M/2014 (AYS 2009 - 10, 2011 - 12 AND 2010 - 11), DATED 25.5.2016, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID ORDER OF THE TRIBUNAL DATED 12.1.2016 (SUPRA) WAS FOLLOWED WHILE ADJUDICATING THE APPEALS BEFORE THE DIVISION BENCH OF THE TRIBUNAL AND THE MATTER 2 WAS REMANDED TO THE FILE OF THE AO FOR FRESH ADJUDICATION. PARA 6 OF THE SAID TRIBUNALS ORDER DATED 25.5.2016 IS RELEVANT IN THIS REGARD. 3. AFTER GOING THROUGH THE SAID TRIBUNALS ORDER (SUPRA) D ATED 25.5.2016, I FIND IT RELEVANT TO EXTRACT THE SAID PARA 6 FOR THE SAKE OF COMPLETENESS OF THIS ORDER WHICH IS AS UNDER: - 6. WE HAD CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL, WHEREIN ON SIMILAR FACTS THE TRIBUNAL OBSERVED AS UNDER: - 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MUCH DELIBERATION AND CONSIDERING THE FACTS AND THE ARGUMENTS ASSERTED FROM BOTH SIDES, THE FACTUAL MATRIX IS NOT COMING OUT WHETHER IT IS ONE RESIDENTIAL UN IT (AS HAS BEEN CLAIMED BY THE ASSESSEE) OR FOUR SEPARATE RESIDENTIAL UNITS (AS HAS BEEN CLAIMED BY THE LD DR), THEREFORE, THE LD AO IS DIRECTED TO EXAMINE FACTUAL MATRIX AND THEN DECIDE IN ACCORDANCE WITH LAW. IT IS OBSERVED THAT IF THE INTERNAL WALL OF DIFFERENT UNITS HAS BEEN REMOVED AND THE FLATS HAVE BEEN CONVERTED INTO ONE RESIDENTIAL UNIT THEN CERTAINLY NO ADDITION IS WARRANTED. IF IT IS FOUND THAT THESE ARE SEPARATE UNITS AND INTERNAL WALLS HAVE BEEN REMOVED AND IN FACT IT IS FOUND THAT THESE ARE FOUR INDEPENDENT UNITS, THEN THE ADDITION SO MADE BY THE REVENUE IS JUSTIFIED. THEREFORE, THE LD AO IS DIRECTED TO EXAMINE THE FACTS AND THEN DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD AND ALSO TO EXPLAIN THE TRUE FAC TS. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. AS THE FACTS AND CIRCUMSTANCES BEFORE US ARE SIMILAR, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL, WE SET ASIDE THE MATTER BACK TO THE FILE OF AO FOR DECIDING AFRESH IN TERMS OF D IRECTION GIVEN BY THE TRIBUNAL. 4. CONSIDERING THE ABOVE, I FIND THE FACTS ARE IDENTICAL AND THE ORDER OF THE TRIBUNAL SHOULD BE FOLLOWED FOR THE SAKE OF CONSISTENCY. ACCORDINGLY, WITH SIMILAR DIRECTIONS, THE ISSUES RAISED IN THE APPEAL ARE REMANDED TO T HE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. THUS, THE ONLY GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JUNE, 2016. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 27 .6.2016 . . ./ OKK , SR. PS 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI