SSARUTA P. DROLIAA, MUMBAI V. ITO WD 15(3)(3), MUMBAI

ITA 1374/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3980 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 13-04-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: KHUSHAL SHAH
• Keywords: Wrong claim
• Section: 143(3)

Judgement Text

1 SSARITA P DROLIAA ITA NO. 1374 /M UM /201 2 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI , , BEFORE SHRI B R BASKARAN , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER ITA NO. 1374 /MUM/201 2 (ASSESSMENT YEAR 200 7 - 0 8 ) SSARITA P DROLIAA , WINDER MERE CHS 2A, 183, 18 TH FLOOR, OSHIWARA ANDHERI(WEST), MUMBAI - 440 053 PAN: AGVPD 0756 H VS ITO WARD 15(3)(3), PAREL MUMBAI - 400 012 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KHUSHAL SHAH RESPONDENT BY : SHRI A K NAYAK /DATE OF HEARING : 13 - 04 - 201 6 /DATE OF PRONOUNCEMENT : 13 - 04 - 2016 ORDER , . : - PER AMIT SHUKLA, J. M. : T HE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 1 2 . 1 2. 201 1 PASSED BY COMMISSIONER OF INCOME - TAX (APPEALS) CIT(A) - 26 , MUMBAI, FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) FOR THE ASSESSMENT YEAR 200 7 - 0 8 . IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1 . C OMMISSIONER OF I NCOME T AX (A PPEALS ) HAS ERRED IN HOLDING TH AT : - A ) THE LOAN W AS TAKEN BY ASSESSEES HUSBAND ONLY. B ) THE ASSESSEE HAS NOT RAISED THE GENUINE LOAN. C ) THE SHARING OF LOAN AND INTEREST IS NOT PERMISSIBLE BETWEEN HUSBAND AND ASSESSEE. 2 SSARITA P DROLIAA ITA NO. 1374 /M UM /201 2 D ) CLAIM MADE UNDER SECTION 24(B) AND SECTION 80 - C IS ABSOLUTELY WRONG. 2 . THE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF HER SHARE OF INTEREST ON HOUSING LOAN AS WELL AS INSTAL L MENTS OF LOANS UNDER SECTION 24(B) AND SECTION 80 - C RESPECTIVELY OF THE INCOME TAX ACT, 1961. 2. HERE IN THIS CASE, THE AO HAS DISALLOWED THE CLAIM OF INTEREST PAYMENT ON THE HOUSING LOAN TAKEN FROM THE FEDERAL BANK WHICH WAS CLAIMED UNDER SECTION 24(B) BY THE ASSESSEE. SUCH A CLAIM HAS BEEN DISALLOWED ON THE GROUND THAT, REPAYMENT HAS BEEN BY THE ASS ESSEES HUSBAND MR. PAWAN DROLIA. THE ASSESSEES CLAIM HAD BEEN THAT, SHE HAD PURCHASED A RESIDENTIAL FLAT ALONG WITH HER HUSBAND FOR WHICH A HOUSING LOAN OF RS.77.5 LAKHS WAS TAKEN. SHE HAS CLAIMED DEDUCTION UNDER SECTION 24(B) AND 80 - C ON THE SAID REPAYM ENT OF BANK LOAN. HOWEVER, THE CIT(A) TOO HELD THAT ASSESSEE HAS MADE WRONG CLAIM OF DEDUCTION UNDER SECTION 24(B) AS WELL AS 80 - C, BECAUSE REPAYMENT OF INTEREST AND PRINCIPLE OF HOUSING LOAN IS AVAILABLE ONLY TO THE PERSON W HO ACTUALLY BORROW S THE CAPITAL / LOAN, WHICH HERE IN THIS CASE IS THE HUSBAND OF THE ASSESSEE AND NOT THE ASSESSEE . ACCORDINGLY, HE CONFIRMED THE ACTION OF THE AO. 3 . BEFORE US, THE LD. COUNSEL SUBMITTED THAT, ASSESSEE AND HER HUSBAND HAS TAKEN HOUSING LOAN OF RS.77.50 LAKHS FROM FED ERAL BANK. THE SAID LOAN WAS IN THE JOINT NAME OF THE ASSESSEE AS WELL AS HER HUSBAND , MR. PAWAN DROLIA . IN SUPPORT, LD. COUNSEL ALSO SUBMITTED THE LATEST ACKNOWLEDGEMENT LETTER OF LOAN BY THE FEDERAL BANK LTD ., SPECIFYING THE NAME OF THE ASSESSEE AS WELL AS HER HUSBAND. THE LOAN AMOUNT WAS DIRECTLY PAID TO THE BUILDER. A COPY OF LOAN STATEMENT RECEIVED FROM THE BANK ISSUED IN THE NAME OF MR. PAWAN KUMAR DROLIA AND THE ASSESSEE WAS ALSO FILED IN THE PAPER BOOK. A COPY OF INTEREST CERTIFICATE HAS ALSO BEEN F ILED BEFORE US. 3 SSARITA P DROLIAA ITA NO. 1374 /M UM /201 2 THUS, FROM THESE DOCUMENTS, HE SUBMITTED THAT THE FINDING GIVEN BY THE AUTHORITIES BELOW ARE NOT CORRECT SO AS TO HOLD THAT THE L OAN WAS TAKEN ONLY B Y HER HUSBAND AND ALSO THE REPAYMENT WAS ALSO DONE BY HER HUSBAND. 4 . ON THE OTHER HAND, L D. DR STRONGLY RELIED UPON THE ORDER OF THE AO AS WELL AS CIT(A) AND SUBMITTED THAT, IN CASE THE DOCUMENTS WERE FURNISHED BY THE ASSESSEE ARE CORRECT, THEN MATTER SHOULD BE RE - EXAMINED AFRESH BY THE AO. 5 . AFTER CONSIDERING THE RIVAL SUBMISSION AND ON PERUSAL OF RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER AS WELL AS MATERIAL PLACED BEFORE US, WE FIND THAT THE MAIN DISPUTE REGARD ING DISALLOWANCE OF CLAIM MADE UNDER SECTION 24(B) AND 80 - C IS THAT , WHETHER THE ASSESSEE HAS BORROWED THE HOUSING LOAN OR NOT AND WHETHER T H E REPAYMENT OF THE LOAN H AS BEEN MADE BY HER HUSBAND ONLY OR BY ASSESSEE ALSO . TO REBUT THIS FINDING, THE LD. COUNSEL HAD DREW OUR ATTENTION TO, FIRSTLY , THE AGREEMENT WITH THE BUILDER FOR THE PURCHASE OF HOUSE WHICH SHOWS THAT, PROPERTY IS IN THE NAME OF THE ASSESSEE AS WELL AS HER HUSBAND ; SECONDLY , LETTER FROM FEDERAL BANK LTD. SHOWING THAT LOAN AMOUNT OF RS.77.50 LAKHS WAS SANCTIONED IN THE NAME OF THE ASSESSEE AS WELL AS HER HUSBAND ; AND LAST LY , INTEREST CERTIFICATE ISSUED BY THE BANK WH ICH HAS BEEN ISSUED IN THE JOINT NAME OF THE ASSESSEE AS WELL AS HER HUSBAND. ALL THESE DOCUMENTS HAVE A VERY VITAL BEARING, WHICH HAS NOT BEEN PROPERLY APPRECIATED BY THE AUTHORITIES BELOW. ACCORDINGLY, WE ARE SETTING ASIDE THE ORDER OF THE CIT(A) AND REM IT THE MATTER BACK TO THE FILE OF THE AO TO EXAMINE THIS ISSUE AFRESH IN THE LIGHT OF THESE DOCUMENTS AND DECIDE THE MATTER ACCORDINGLY AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY TO THE ASSESSEE. ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED. 4 SSARITA P DROLIAA ITA NO. 1374 /M UM /201 2 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AP R IL , 2016. SD/ - SD/ - ( ) ( ) (B R B ASKARAN ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 13 TH APRIL, 2016 /COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT(A) - 26 , MUMBAI. 4 ) THE COMMISSIONER OF INCOME TAX - 15 , MUMBAI. 5 ) , , / THE D.R. E BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / , ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS