SUSHMA A KILACHAND, MUMBAI V. ACIT 16(2), MUMBAI

ITA 138/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92540 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-11-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 06-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N V NADKARNI
• Assessee Lawyers: DEEPAK J SHUKLA
• Keywords: Question of law; Notional interest

Judgement Text

MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI , . , BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI D. KARUN AKARA RAO , ACCOUNTANT MEMBER ITA NO. : 138 /MUM/20 12 (ASSESSMENT YEAR: 2005 - 06 ) MS. SUSHMA A KILACHAND , 95, NEPEAN SEA ROAD, MUMBAI - 400 006 .: PAN: AACPK3752B VS ACIT - 16 (2) /CIT(A) - 28, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK J SHUKLA RESPONDENT BY : SMT N V NADKARNI /DATE OF HEARING : 13 - 0 5 - 201 5 / DATE OF PRONOUNCEMENT : 22. - 05 - 201 5 ORDER , : PER VIJAY PAL RAO , JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DA T ED 08.11.2011 OF THE CIT(A) FOR THE ASSESSMENT YEAR 2005 - 06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. (A) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN VIRTUALLY SETTING ASIDE THE ASSESSMENT AND REFERRING THE CASE BACK TO THE ASSESSING OFFICER FOR MAKING A FRESH ASSESSMENT IN ACCORDANCE WITH HIS DIRECTIONS. B) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DISREGARDING THE FACT THAT HE HAD NO POWERS TO SET ASIDE THE ASSESSMENT AS PER PROVISIONS OF SEC.251 OF INCOME TAX ACT, 1961: 1 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ENHANCING THE ASSESSMENT BY DETERMINING RENT OF THE FLAT AT RS.100/ - PER SQ.FT PER MONTH WITH OUT GIVING ANY NOTICE OF THE SAME TO THE APPELLANT BEFORE PASSING THE IMPUGNED APPELLATE ORDER DATED 8TH NOVEMBER 2011. MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 2 2 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN NOT GIVING FINDIN G AND DECISION O N THE VARIOUS 'GROUNDS OF APPEAL' FILED BY APPELLANT. WITHOUT PREJUDICE TO ABOVE 3 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN IGNORING THE LEAVE & LICENCE AGREEMENT DATED 3 RD JULY 2003 AND CONTRAC TUAL OBLIGATION OF THE LICENCEE THEREUNDER IN CONCLUDING THAT ANN UAL VALUE OF THE SAID FLAT U/S. 23(1)(A) SHOULD BE ARRIVED AT IGNORING REGISTERED AGREEMENT BETWEEN THE UNRELATED PARTIES. 4 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T.(A) OUGHT TO HAVE HELD THAT THE CONTRACT UAL RENT RECEIVABLE BEING HIGHER THAN THE RATEABLE VALUE OF THE SAID FLAT, ANNUAL VALUE OF SAID FLAT U / S.23(1)(A) WOULD BE ACTUAL RENT RECEIVABLE UNDER AGREEMENT WITH LICENCEE. 5 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T(APPEALS) O UGHT TO HAVE DIRECTED THE A.O. THAT THE STANDARD RE NT OF THE FLAT BEING RS.10,OOO / - - PER MONTH I.E. RS.1,20,OOO / - PE R ANNUM WOULD BE ANNUAL VALUE OF THE SAID FLAT UNDER SEC.23(1)(A) (A) OF THE INCOME TAX ACT 1961 AND ASSESSMENT OF THE APPELLANT SHOULD BE COM PLETED ON THE BASIS OF ACTUAL RENT RECEIVED WHICH IS HIGHER THAN THE ANNUAL VALUE U / S.23(1)(A) OF THE I.T.ACT,1961. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED CONFIRMING DISALLOWANCE MADE BY THE ASSESSING OFFICER RS.76,248 / - - BEING PORT FOLIO MANAGEMENT SERVICES FEE AND RELATED CHARGES. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE HAS STATED THAT THE ASSESSEE DOES NOT PRESS GROUND NO.1,2 AND 7 OF THE GROUNDS OF APPEAL AND THE SAME MY DISMISSED AS NOT PRESSED. THE LD. DR H AS RAISED NO OBJECTION IF THE GROUN D S NO.1,2,3 & 7 OF THE ASSESSEE'S APPEAL ARE DISMISSED AS NOT PRESSED. ACCORDINGLY, GROUND NOS.1,2,3 & 7 OF THE ASSESSEE'S APPEAL ARE DISMISSED BEING NOT PRESSED. 3. GROUND NO.4 TO 6 ARE REGARDING DETERMINATION OF ANNUAL L ETTING VALUE (ALV) U/S 23(1)(A) BY MAKING THE ADDITION ON ACCOUNT OF NOTIONAL INTEREST ON INTEREST FREE DEPOSIT. MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 3 4 . THE ASSESSEE IS CO - OWNER OF THE PROPERT Y BEING FL A T N O . 2 1 3 S UNITA RO A D , MUMBAI - 400 066. THE PROPER T Y WAS LET OUT TO M/S BANK OF TOKAYO FOR A MONTHLY RENT OF RS. 95,000/ - IN WHICH THE ASSESSEE IS ENTITLED TO RECEIVE HER SHARE. THE ASSESSEE ALONG WITH THE OTHER OWNERS OF THE PROPERTY RECEIVED INTEREST FREE DEPOSIT OF RS.2.25 CRORES. THE AO WHILE COMPUTING THE ALV HAS MADE AN ADDITION BY ADO PTING 12% INTEREST ON THE SAID AMOUNT OF RS. 2.25 CRORES. THE ASSESSEE CHALLENGED THE ACTION OF THE AO AND THE CIT(A) BUT COULD NOT SUCCEED. 5. WE HAVE HEARD THE LD. AR AS WELL AS DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT IN THE CASE OF THE CO - OWNER MRS. BHARATI ANIRUDH KILACHAND IN ITA 1417 OF 2011 VIDE OUR DATED 16.01 . 2015, WHEREIN, WE HAVE CONSIDERED AN IDENTICAL ISSUE IN PARA 6 TO 8, WHICH READ AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RE LEVANT MATERIAL ON RECORD. FOR THE PURPOSE OF COMPUTATION OF ANNUAL VALUE OF THE PROPERTY, THE PROCEDURE IS STIPULATED U/S 23(1) OF THE INCOME TAX ACT. AS PER THE PRESCRIBED PROCEDURE, THE ASSESSING OFFICER HAS TO FIRST DETERMINE THE SUM FOR WHICH THE PROP ERTY MIGHT REASONABLY BE EXPECTED TO FETCH THE RENT FROM YEAR TO YEAR AS PER CLAUSE (A) OF SUB - SECTION 1 AND THEN IF THE PROPERTY IS LET OUT, COMPARE THE SAME WITH THE ANNUAL/ACTUAL RENT RECEIVED OR RECEIVABLE. THEREFORE, THE REASONABLE RENT EXPECTED TO BE FETCHED BY THE PROPERTY BY LETTING OUT YEAR TO YEAR HAS TO BE DETERMINED AS PER SECTION 23(1)(A) AND IN THE CASES WHERE THE PROPERTY IS ACTUALLY LET OUT THEN COMPARED THE SAME WITH THE REASONABLE EXPECTED RENT TO BE FETCHED AS DETERMINED IN CLAUSE (A) OF THIS SECTION. IF THE REASONABLE EXPECTED RENT IS FOUND TO BE MORE THAN THE ANNUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER THEN THE REASONABLE RENT EXPECTED FROM THE LETTING OUT THE PROPERTY FROM YEAR TO YEAR DETERMINED UNDER CLAUSE (A) TO THIS SECTION WOU LD BE THE ANNUAL VALUE FOR THE PURPOSE OF SECTION 22 OF THE ACT. TO DETERMINE THE REASONABLE RENT TO BE FETCHED BY THE PROPERTY, THE ASSESSING OFFICER HAS TO CONDUCT THE PROPER ENQUIRY AND TAKE THE NECESSARY STEPS TO FIND OUT THE PREVAILING FAIR MARKET REN T. IN THE CASE IN HAND, THE ASSESSING OFFICER HAS NOT CARRIED OUT ANY ENQUIRY OR MADE ANY ATTEMPT TO DETERMINE THE FAIR MARKET RENT U/S 23(1)(A). THE ASSESSING OFFICER HAS MADE THE ADDITION BY ADOPTING 12% INTEREST RATE ON THE INTEREST FREE DEPOSITS AND D ETERMINED THE ANNUAL VALUE OF THE PROPERTY BY MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 4 ADDING THE SAID NOTIONAL INTEREST IN THE ACTUAL RENT RECEIVED BY THE ASSESSEE. THERE IS NO QUARREL ON THIS POINT THAT IF THE ASSESSING OFFICER FINDS THAT THE INTEREST FREE DEPOSITS HAS THE EFFECT TO DEFLATE OR INFLATE THE RENT AGREED BETWEEN THE PARTIES THEN THE ASSESSING OFFICER IS FREE TO CARRY OUT THE NECESSARY INVESTIGATION AND ENQUIRY. HOWEVER, HE MUST HAVE COGENT AND SATISFACTORY MATERIAL IN HIS POSSESSION AND WHICH WILL INDICATE THAT THE PARTIES HAVE CONC EALED THE REAL POSITION AS OBSERVED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. TIP TOP TYPOGRAPHY (SUPRA) IN PARA 47 AS UNDER: - 47. WE ARE OF THE VIEW THAT WHERE RENT CONTROL LEGISLATION IS APPLICABLE AND AS IS NOW URGED THE TREND I N THE REAL ESTATE MARKET SO ALSO IN THE COMMERCIAL FIELD IS THAT CONSIDERING THE DIFFICULTIES FACED IN EITHER RETRIEVING BACK IMMOVABLE PROPERTIES IN METRO CITIES AND TOWNS, SO ALSO THE TIME SPENT IN LITIGATION, IT IS EXPEDIENT TO EXECUTE A LEAVE AND LICEN SE AGREEMENTS. THESE ARE USUALLY FOR FIXED PERIODS AND RENEWABLE. IN SUCH CASES AS WELL, THE CONCEDED POSITION IS THAT THE ANNUAL LETTING VALUE WILL HAVE TO BE DETERMINED ON THE SAME BASIS AS NOTED ABOVE. IN THE EVENT AND AS URGED BEFORE US, THE SECURITY D EPOSIT COLLECTED AND REFUNDABLE INTEREST FREE AND THE MONTHLY COMPENSATION SHOWS A TOTAL MISMATCH OR DOES NOT REFLECT THE PREVAILING RATE OR THE ATTEMPT IS TO DEFLATE OR INFLATE THE RENT BY SUCH METHODS, THEN, AS HELD BY THE DELHI HIGH COURT, THE ASSESSING OFFICER IS NOT PREVENTED FROM CARRYING OUT THE NECESSARY INVESTIGATION AND ENQUIRY. HE MUST HAVE COGENT AND SATISFACTORY MATERIAL IN HIS POSSESSION AND WHICH WILL INDICATE THAT THE PARTIES HAVE CONCEALED THE REAL POSITION. HE MUST NOT MAKE A GUESS WORK OR ACT ON CONJECTURES AND SURMISES. THERE MUST BE DEFINITE AND POSITIVE MATERIAL TO INDICATE THAT THE PARTIES HAVE SUPPRESSED THE PREVAILING RATE. THEN, THE ENQUIRIES THAT THE ASSESSING OFFICER CAN MAKE, WOULD BE FOR ASCERTAINING THE GOING RATE. HE CAN MAKE A COMPARATIVE STUDY AND MAKE A ANALYSIS. IN THAT REGARD, TRANSACTIONS OF IDENTICAL OR SIMILAR NATURE CAN BE ASCERTAINED BY OBTAINING THE REQUISITE DETAILS. HOWEVER, THERE ALSO THE ASSESSING OFFICER MUST SAFEGUARD AGAINST ADOPTING THE RATE STATED THEREIN ST RAIGHTWAY. HE MUST FIND OUT AS TO WHETHER THE PROPERTY WHICH HAS BEEN LET OUT OR GIVEN ON LEAVE AND LICENSE BASIS IS OF A SIMILAR NATURE, NAMELY, COMMERCIAL OR RESIDENTIAL. HE SHOULD ALSO SATISFY HIMSELF AS TO WHETHER THE RATE OBTAINED BY HIM FROM THE DEAL S AND TRANSACTIONS AND DOCUMENTS IN RELATION THERETO CAN BE APPLIED OR WHETHER A DEPARTURE THEREFROM CAN BE MADE, FOR EXAMPLE, BECAUSE OF THE AREA, THE MEASUREMENT, THE LOCATION, THE USE TO WHICH THE PROPERTY HAS BEEN PUT, THE ACCESS THERETO AND THE SPECIA L ADVANTAGES OR BENEFITS. IT IS POSSIBLE THAT IN A HIGH MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 5 RISE BUILDING BECAUSE OF SPECIAL ADVANTAGES AND BENEFITS AN OFFICE OR A BLOCK ON THE UPPER FLOOR MAY FETCH HIGHER RETURNS OR VICE VERSA. THEREFORE, THERE IS NO MAGIC FORMULA AND EVERYTHING DEPENDS UPO N THE FACTS AND CIRCUMSTANCES IN EACH CASE. HOWEVER, WE EMPHASIZE THAT BEFORE THE ASSESSING OFFICER DETERMINES THE RATE BY THE ABOVE EXERCISE OR SIMILAR PERMISSIBLE PROCESS HE IS BOUND TO DISCLOSE THE MATERIAL IN HIS POSSESSION TO THE PARTIES. HE MUST NOT PROCEED TO RELY UPON THE MATERIAL IN HIS POSSESSION AND DISBELIEVE THE PARTIES. THE SATISFACTION OF THE ASSESSING OFFICER THAT THE BARGAIN REVEALS AN INFLATED OR DEFLATED RATE BASED ON FRAUD, EMERGENCY, RELATIONSHIP AND OTHER CONSIDERATIONS MAKES IT UNREAS ONABLE MUST PRECEDE THE UNDERTAKING OF THE ABOVE EXERCISE. AFTER THE ABOVE ASCERTAINMENT IS DONE BY THE OFFICER HE MUST, THEN, COMPLY WITH THE PRINCIPLES OF FAIRNESS AND JUSTICE AND MAKE THE DISCLOSURE TO THE ASSESSEE SO AS TO OBTAIN HIS VIEW. 7. SINCE I N THE CASE IN HAND, THE ASSESSING OFFICER HAD NOT CONDUCTED ANY ENQUIRY OR INVESTIGATION TO FIND OUT THE EFFECT OF INTEREST FREE DEPOSITS AND TO DETERMINE THE FAIR MARKET RENT EXPECTED TO BE FETCHED BY THE PROPERTY IN QUESTION AS PER CLAUSE (A) OF SECTION 23 THEN THE ASSESSING OFFICER CANNOT BE ALLOWED TO MAKE THE ADDITION ON ACCOUNT OF NOTIONAL INTEREST. THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. TIP TOP TYPOGRAPHY (SUPRA) WHILE CONSIDERING THE JUDGMENT OF FULL BENCH OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS.MONI KUMAR SUBBA (SUPRA) HAS HELD IN PARA 51 TO 54 AS UNDER: - 51. WE QUITE SEE THE FORCE IN THE ARGUMENTS OF MS. VISSANJEE THAT ORDINARILY THE LICENSE FEE AGREED BETWEEN THE WILLING LICENSOR OR A WILLING LICENSEE UNINFLU ENCED BY ANY EXTRANEOUS CIRCUMSTANCES WOULD AFFORD RELIABLE EVIDENCE OF WHAT THE LANDLORD MIGHT REASONABLY BE EXPECT TO GET FROM A HYPOTHETICAL TENANT. SHE HAS IN MAKING THIS SUBMISSION, ANSWERED THE ISSUE AND SUMMED UP THE CONCLUSION AS WELL. THEN, IT IS BUT NATURAL AND LOGICAL THAT IN THE EVENT, THE TRANSACTION IS INFLUENCED BY ANY EXTRANEOUS CIRCUMSTANCES OR VITIATED BY FRAUD, OR THE LIKE THAT THE ASSESSING OFFICER CAN ADOPT A 'FAIR RENT' BASED ON THE OPINION OBTAINED FROM RELIABLE SOURCES. THERE AS WELL , WE DO NOT SEE AS TO HOW WE CAN UPHOLD THE SUBMISSIONS OF MR. CHHOTARAY THAT THE NOTIONAL RENT ON THE SECURITY DEPOSIT CAN BE TAKEN INTO ACCOUNT AND CONSIDERATION FOR THE DETERMINATION. IF THE TRANSACTION ITSELF DOES NOT REFLECT ANY OF THE AFORE STATED AS PECTS, THEN, MERELY BECAUSE A SECURITY DEPOSIT WHICH IS REFUNDABLE AND INTEREST FREE HAS BEEN OBTAINED, THE ASSESSING OFFICER SHOULD NOT PRESUME THAT THIS SUM OR THE INTEREST DERIVED THEREFROM AT BANK RATE IS THE INCOME OF THE MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 6 ASSESSEE TILL THE DETERMINATI ON OR CONCLUSION OF THE TRANSACTION. THE ASSESSING OFFICER OUGHT TO BE AWARE OF SEVERAL ASPECTS AND MATTERS INVOLVED IN SUCH TRANSACTIONS. IT IS NOT NECESSARY THAT IF THE LICENSE IS FOR THREE YEARS THAT IT WILL OPERATIVE AND CONTINUING TILL THE END. THERE ARE TERMS AND CONDITIONS ON WHICH THE LEAVE AND LICENSE AGREEMENT IS EXECUTED BY PARTIES. THESE TERMS AND CONDITIONS ARE WILLINGLY ACCEPTED. THEY ENABLE THE LICENSE TO BE DETERMINED EVEN BEFORE THE STATED PERIOD EXPIRES. EQUALLY, THE LICENSEE CAN OPT OUT O F THE DEAL. A LEAVE AND LICENSE DOES NOT CREATE ANY INTEREST IN THE PROPERTY. THEREFORE, IT IS NOT AS IF THE SECURITY DEPOSIT BEING MADE, IT WILL BE NECESSARILY REFUNDABLE AFTER THE THIRD YEAR AND NOT OTHERWISE. EVERYTHING DEPENDS UPON THE FACTS AND CIRCUM STANCES IN EACH CASE AND THE NATURE OF THE DEAL OR TRANSACTION. THESE ARE NOT MATTERS WHICH ABIDE BY ANY FIXED FORMULA AND WHICH CAN BE UNIVERSALLY APPLIED. TODAY, IT MAY BE COMMERCIALLY UNVIABLE TO ENTER INTO A LEASE AND, THEREFORE, THIS MODE OF INDUCTING A 'THIRD PARTY' IN THE PREMISES IS ADOPTED. THIS MAY NOT BE THE TREND TOMORROW, THEREFORE, WE DO NOT WISH TO CONCLUDE THE MATTER BY EVOLVING ANY RIGID TEST. 52. WE HAVE ALSO NOTED THE SUBMISSIONS OF SHRI AHUJA. WE ARE OF THE OPINION THAT EVEN IN THE CASE S AND MATTERS BROUGHT BY HIM TO OUR NOTICE, IT IS EVIDENT THAT THE ASSESSING OFFICER CANNOT BRUSH ASIDE THE RENT CONTROL LEGISLATION, IN THE EVENT, IT IS APPLICABLE TO THE PREMISES IN QUESTION. THEN, THE ASSESSING OFFICER HAS TO UNDERTAKE THE EXERCISE CONT EMPLATED BY THE RENT CONTROL LEGISLATION FOR FIXATION OF STANDARD RENT. THE ATTEMPT BY THE ASSESSING OFFICER TO OVERRIDE THE RENT CONTROL LEGISLATION AND WHEN IT BALANCES THE RIGHTS BETWEEN THE PARTIES HAS RIGHTLY BEEN INTERFERED WITH IN THE GIVEN CASE BY THE APPELLATE AUTHORITY. THE ASSESSING OFFICER EITHER MUST UNDERTAKE THE EXERCISE TO FIX THE STANDARD RENT HIMSELF AND IN TERMS OF THE MAHARASHTRA RENT CONTROL ACT, 1999 IF THE SAME IS APPLICABLE OR LEAVE THE PARTIES TO HAVE IT DETERMINED BY THE COURT OR T RIBUNAL UNDER THAT ACT. UNTIL, THEN, HE MAY NOT BE JUSTIFIED IN APPLYING ANY OTHER FORMULA OR METHOD AND DETERMINE THE 'FAIR RENT' BY ABIDING WITH THE SAME. IF HE DESIRES TO UNDERTAKE THE DETERMINATION HIMSELF, HE WILL HAVE TO GO BY THE MAHARASHTRA RENT CO NTROL ACT, 1999. MERELY BECAUSE THE RENT HAS NOT BEEN FIXED UNDER THAT ACT DOES NOT MEAN THAT ANY OTHER DETERMINATION AND CONTRARY THERETO CAN BE MADE BY THE ASSESSING OFFICER. ONCE AGAIN HAVING RESPECTFULLY CONCURRED WITH THE JUDGMENT OF THE FULL BENCH OF THE DELHI HIGH COURT, WE NEED NOT SAY ANYTHING MORE ON THIS ISSUE. 53. THUS, APART FROM THE THREE ASPECTS NAMELY OF A MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 7 MUNICIPAL VALUATION, OF OBTAINING INTEREST FREE SECURITY DEPOSIT AND THE PROPERTIES BEING COVERED BY THE MAHARASHTRA RENT CONTROL ACT B UT NO STANDARD RENT THEREUNDER IS FIXED, OUR ATTENTION HAS NOT BEEN INVITED TO ANY OTHER CASE. SUFFICE IT TO HOLD THAT IN THOSE CASES AND TO WHICH OUR ATTENTION IS NOT INVITED THE PRINCIPLES LAID DOWN IN THE DECISIONS OF THE HON'BLE SUPREME COURT AND REFER RED TO BY THE FULL BENCH OF THE DELHI HIGH COURT WOULD GOVERN THE ENQUIRY. 54. AS A RESULT OF THE ABOVE DISCUSSION, WE ARE OF THE OPINION THAT WHEREVER THE ASSESSING OFFICER HAS NOT ADHERED TO THE ABOVE PRINCIPLES, AND HIS FINDING AND CONCLUSION HAS BEEN INTERFERED WITH, BY THE HIGHER APPELLATE AUTHORITIES, THE REVENUE CANNOT BRING THE MATTER TO THIS COURT AS NO SUBSTANTIAL QUESTION OF LAW CAN BE ARISING FOR DETERMINATION AND CONSIDERATION OF THIS COURT. THEN, THE FINDINGS BY THE LAST FACT FINDING AUTHORI TY, NAMELY THE TRIBUNAL AND AGAINST THE REVENUE SHALL HAVE TO BE UPHELD AS THEY ARE CONSISTENT WITH THE FACTS AND CIRCUMSTANCES BROUGHT BEFORE IT. IF THEY ARE NOT VITIATED BY ANY PERVERSITY OR ERROR OF LAW APPARENT ON THE FACE OF THE RECORD, THE APPEALS OF THE REVENUE CANNOT BE ENTERTAINED. THEY WOULD HAVE TO BE ACCORDINGLY DISMISSED. 8. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WHERE THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY OR INVESTIGATION AND BY FOLLOWING THE JUDGMENT OF HON 'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. TIP TOP TYPOGRAPHY (SUPRA), WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT(A) QUA THIS ISSUE. 6. SINCE THE FACTS IN THE CASE ARE COMMON WITH THE FACTS OF THE CO - OWNERS CASE THEREFORE, F OLLOWING THE ORDER OF THIS TRIBUNAL IN THE CASE OF A CO - OWNER OF THE PROPERTY, THE ADDITION MADE ON ACCOUNT OF NOTIONAL INTEREST IS HEREBY DELETED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 22ND MAY , 2015. SD SD ( . ) ( ) ( D. KARUNAKARA RAO ) ( VIJAY PAL RAO ) ACCOUNTANT MEMB ER JUDICIAL MEMBER MUMBAI, DATE: 22ND MAY , 2015 MS. SUSHMA A KILACHAND ITA NO. 138 / M UM /2 0 12 8 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 8 , MUMBAI. 4 ) THE CIT - 4 , MUMBAI/CIT - 4 , MUMBAI . 5 ) , , / THE D.R. E BENCH, MUMBAI. 6 ) COPY TO GUARD FILE. / BY ORDER TRUE COPY / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI SRL: