Dilip Mehrotra HUF, Kanpur V. Income Tax Officer-1(2), Kanpur

ITA 141/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4316 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-05-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 21-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

I.T.A. NO.141/LKW/16 ASSESSMENT YEAR:2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ITA NO.141/LKW/2016 ASSESSMENT YEAR:2012-13 M/S DILIP MEHROTRA HUF, 55/40, GENERALGANJ, KANPUR. PAN:AAEHD4747B VS. INCOME TAX OFFICER-1(1), KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER P. K. BANSAL, A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, KANPUR DATED 04/02/2016 RELATING TO ASSES SMENT YEAR 2011- 2012. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES T O THE SUSTENANCE OF ADDITION OF RS.17,60,290/- BY THE CIT(A) AS MADE BY THE ASSESSING OFFICER. 3. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE AS SESSEE HUF FILED RETURN DECLARING INCOME OF RS.1,50,193/-. THE ASSESSEE OW NS IMMOVABLE PROPERTY AT 75/2, HALSEY ROAD, KANPUR, WHICH IS LET OUT TO STATE BANK OF INDIA. THE INCOME FROM PROPERTY, AS RECEIVED BY TH E ASSESSEE, WAS DECLARED AT RS.1,49,100/-. THE ASSESSEE REQUESTED THE STATE BANK OF APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY S HRI AMIT NIGAM, D. R. DATE OF HEARING 25/05/2016 DATE OF PRONOUNCEMENT 27 / 07 /2016 I.T.A. NO.141/LKW/16 ASSESSMENT YEAR:2012-13 2 INDIA TO INCREASE THE RENT. THE SUIT WAS FILED IN T HE CIVIL COURT. THE CIVIL COURT VIDE ORDER DATED 19/07/2011 DECIDED THE SUIT AND DETERMINED THE RENT @RS.60/- PER SQ. FT. THE STATE BANK OF INDIA WENT BEFORE HON'BLE HIGH COURT AND HON'BLE HIGH COURT VIDE ITS JUDGMENT DATED 12/01/2012 STAYED RECOVERY OF THE BALANCE AMOUNT BUT PERMITTED THE ASSESSEE TO WITHDRAW THE AMOUNT FROM THE BANK WITHOUT FURNISHIN G ANY SECURITY. THE ASSESSING OFFICER HAS TREATED THE SUM OF RS.23,63,2 30/- WITHDRAWN BY THE ASSESSEE IN TERMS OF THE ORDER OF HON'BLE HIGH COUR T DATED 12/01/2012 TO BE THE RENT RECEIVED BY THE ASSESSEE AND COMPUTED T HE SAME AT RS.17,60,290/- UNDER THE HEAD INCOME FROM HOUSE PR OPERTY AND ADDED THE SAME IN THE INCOME OF THE ASSESSEE. THE ORDER OF THE ASSESSING OFFICER WAS CONFIRMED BY THE CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES B ELOW. WE NOTED THAT THE LARGER HUF OF THE ASSESSEE LET OUT ITS PROPERTY NO. 75/2, HALSEY ROAD, KANPUR MEASURING 8,200 SQ. FT. TO STATE BANK OF IND IA IN THE YEAR 1950 AT RS.2,500/- PER MONTH. AFTER PARTITION, THE ASSESSEE HAS BECOME THE EXCLUSIVE OWNER OF THE SAID PROPERTY. THE ASSESSEE ASKED THE STATE BANK OF INDIA TO VACATE THE SAID PREMISES IN THE YEAR 20 00 BUT THE BANK DID NOT VACATE THE PREMISES THEREFORE, THE SUIT WAS FILED. THE SUIT WAS DECIDED IN THE YEAR 2003. THE LOWER COURT DECIDED THE DAMAGES TO BE PAID @RS.8/- PER SQ. FT. AGAINST WHICH THE STATE BANK OF INDIA W ENT IN APPEAL BEFORE THE HIGH COURT. THE HON'BLE HIGH COURT VIDE ITS ORDER DATED 31/03/2004 RESTORED THE MATTER BACK TO THE FILE OF THE LOWER C OURT. THE LOWER COURT RECONSIDERED THE MATTER AND DECIDED THE DAMAGES TO BE PAID TO THE ASSESSEE @RS.60/- PER SQ. FT. THE STATE BANK OF IN DIA WENT IN APPEAL BEFORE THE HON'BLE HIGH COURT AND HON'BLE HIGH COUR T VIDE JUDGMENT DATED I.T.A. NO.141/LKW/16 ASSESSMENT YEAR:2012-13 3 12/01/2012 PASSED THE FOLLOWING ORDER ON THE STAY A PPLICATION OF THE STATE BANK OF INDIA: THREE WEEKS TIME IS GRANTED FOR COUNTER AFFIDAVIT AND TWO WEEKS THEREAFTER FOR REJOINDER AFFIDAVIT. LIST THER EAFTER. SRI VIPIN SINHA, LEARNED COUNSEL APPEARING ON BEHALF OF THE BANK, STATES THAT THE BANK HAS ALREADY HANDED OVER VACANT POSSESSION OF THE PREMISES IN QUESTION. THE DISPUTE IS WITH REGARD TO MESNE PROFIT. INITIALLY, THE SUIT WAS DEC REED GRANTING MESNE PROFIT AT THE RATE OF RS.8/- PER SQ. FT.. THE MATTER WAS CARRIED BEFORE THIS COURT EARLIER AND IT WAS REMAND ED TO THE TRIAL COURT. THE TRIAL COURT AFTER REMAND HAS AWARD ED THE MESNE PROFIT AT THE RATE OF RS.60/- PER SQ. FT.. TH E DECREE FOR RECOVERY OF MESNE PROFIT SHALL REMAIN STAYED PROVID ED THE BANK DEPOSITS THE MESNE PROFIT AT THE RATE OF RS.8/ - PER SQ. FT. AFTER ADJUSTING THE AMOUNT, IF ANY, ALREADY DEP OSITED/PAID WITHIN A PERIOD OF ONE MONTH. THE RECOVERY FOR THE BALANCE AMOUNT FOR THE PERIOD 8TH OF NOVEMBER, 2002 TO 31ST OF DECEMBER, 2004 SHALL REMAIN STAYED. THE SAID AMOUNT CAN BE WITHDRAWN BY THE LANDLORD WITHOUT FURNISHING ANY SE CURITY. 4.1 FROM THE SAID ORDER OF HON'BLE HIGH COURT, IT I S APPARENT THAT THE ORDER PASSED BY THE HIGH COURT IS INTERIM ORDER. T HE APPEAL HAS NOT BEEN DECIDED. BY WAY OF INTERIM ORDER, THE HON'BLE HIGH COURT HAS STAYED THE RECOVERY FOR THE BALANCE AMOUNT FOR THE PERIOD FROM 8 TH NOVEMBER 2002 TO 31 ST OF DECEMBER 2004. BUT IN THE MEANTIME PERMITTED T HE ASSESSEE TO WITHDRAW THE AMOUNT WHICH HAVE ALREADY BEEN DEPOSIT ED WITHOUT FURNISHING ANY SECURITY. THE ORDER PASSED BY HON'B LE HIGH COURT IS AN INTERIM STAY ORDER. THE APPEAL REMAINS PENDING. W HILE THE APPEAL IS PENDING, THE ASSESSEE WAS PERMITTED TO WITHDRAW THE AMOUNT. THE WITHDRAWAL OF THE AMOUNT THEREFORE, AS PER THE ORDE R DATED 12/01/2012 OF HON'BLE HIGH COURT IS SUBJECT TO FINAL OUTCOME OF T HE APPEAL. UNTIL AND UNLESS A RIGHT IS VESTED IN THE ASSESSEE, WE CANNOT HOLD THAT THE MONEY HAS ACCRUED TO THE ASSESSEE. IN OUR OPINION, THE F ACT REMAINS THAT THE RIGHT TO RECEIVE THE MONEY IS STILL NOT DETERMINED. THE INCOME HAS NEITHER I.T.A. NO.141/LKW/16 ASSESSMENT YEAR:2012-13 4 ACCRUED NOR EARNED BY THE ASSESSEE. IT BECOMES THE INCOME OF THE ASSESSEE WHEN A RIGHT IS CRYSTALLIZED IN FAVOUR OF THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND DELETE THE ADDITION MADE BY THE ASSESSING OFFICER. IN OUR OPINION, NO INCOME H AS ACCRUED TO THE ASSESSEE. THE AMOUNT WITHDRAWN BY THE ASSESSEE IS SUBJECT TO FINAL OUTCOME OF THE DECISION OF HON'BLE HIGH COURT. OUR AFORESAID VIEW IS DULY SUPPORTED BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. HINDUSTAN HOUSING AND LAND DEVELOPMENT TRUST LTD. [1986] 161 ITR 524 (SC). WE, THEREFORE, DELETE THE ADDITION. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27/07/2016) SD/. SD/. ( MAHAVIR PRASAD ) ( P. K. BANSAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:27/07/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR