MAITREYI S. SHETTY, MUMBAI V. ITO WD 24(2)(4), MUMBAI

ITA 1880/MUM/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79181 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 20-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHIVAJI GHODE
• Assessee Lawyers: J P BAIRAGARA
• Keywords: Additional evidence; Corroborative evidences; Condonation of delay

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, SMC MUMBAI .., BEFORE SHRI I.P.BANSAL, JUDICIAL MEMBER. ITA NO.1880/MUM/2014 (A.Y. 2007-08) SMT.MAITREYI SHETTY, FLAT NO.803, 8 TH FLOOR, B-2, WING OBEROI SPRING, OFF. LINK ROAD, ANDHERI (W), MUMBAI 400058 PAN: AGUPS 8791A THE INCOME TAX OFFICER, WARD 24(2)(4), C-13, PRATYAKSHAKAR BHAVAN, BKC, BANDRA (EAST), MUMBAI 400 051. ( ! / // / APPELLANT) # # # # / VS. ( $% !/ RESPONDENT) ! & ' & ' & ' & ' /APPELLANT BY : SHRI. J.P.BAIRAGARA $% ! & ' & ' & ' & ' /RESPONDENT BY : SHRI. SHIVAJI GHODE # & ()* / / / / DATE OF HEARING : 03/07/2014 +,- & ()* / DATE OF PRONOUNCEMENT : 03/07/2014 . . . . / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST ORDER PASSED BY LD. CIT(A)-34, MUMBAI DATED 18/09/2013 FOR ASSESSME NT YEAR 2007-08. GROUNDS OF APPEAL READ AS UNDER: 01 THE ORDERS PASSED BY THE LEARNED LOWER AUTHORIT IES ARE BAD IN LAW AND BAD IN FACTS. 02. THE LEARNED CIT(A) HAS GROSSLY ERRED IN PASSING EX-PARTE ORDER, EVEN THOUGH THE APPELLANT WAS PREVENTED BY A REASONABLE AND SUFFICI ENT CAUSE FOR NON-ATTENDANCE. 03 THE LEARNED LOWER AUTHORITIES HAVE GROSSLY ERRED IN TREATING THE RECEIPT OF RS. 3,19,102/- AS INCOME FROM OTHER SOURCES, EVEN THOUG H THE APPELLANT HAD RECEIVED SAID AMOUNT AS AND BY WAY OF RENT . REASONS ASSIGNED FOR THE IMPUGNED TREATMENT OF RENTAL RECEIPT ARE WRONG AND CONTRARY TO THE EVIDENCE ON R ECORD. 04 THE LEARNED LOWER AUTHORITIES HAVE GROSSLY ERRED IN REJECTING APPELLANTS CLAIM U/S 24(2) OF THE IT. ACT, 1961 (I.E. 30% DEDUCTION ) AT RS.95,731/-. NO REASONS HAVE BEEN ASSIGNED FOR IMPUGNED DISALLOWANCE OF APPELLANTS CL AIM. ITA NO.1880/MUM/2014 (A.Y. 2007-08) 2 05. HAVING REGARD TO THE FACTS OF THE CASE, PROVISI ONS OF LAW AND JUDICIAL PROPOSITIONS THE CLAIM OF THE APPELLANT SHOULD HAVE BEEN ALLOWED . 06 THE APPELLANT MAY PLEASE BE PERMITTED TO RAISE A NY ADDITIONAL OR ALTERNATIVE GROUND ON OR BEFORE THE HEARING OF THE APPEAL. 2. THE APPEAL IS BARRED BY TIME. THE DELAY IS 100 DAYS. AN APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED STATING THE REA SON THAT THE ORDER PASSED BY LD. CIT(A) WAS SERVED ON THE TENANT OF THE ASSESSEE O N 11/10/2013 AT THE ADDRESS A- 103, SERENITY HEIGHTS, OFF LINK ROAD, CHINCHOLI BUN DER, MALAD (WEST), MUMBAI - 400 064 AND THE TENANT DID NOT SEND THE SAID ORDER TO THE ASSESSEE. SUBSEQUENTLY, IN THE MONTH OF FEBRUARY, 2014 THE ASSESSEE WAS IN TIMATED BY THE AO THAT HER APPEAL IS DISMISSED BY LD. CIT(A), THEREFORE, DEMAN D OF RS.59,147/- IS PAYABLE. ACCORDINGLY, AO ATTACHED ASSESSEES BANK ACCOUNT O F HDFC BANK WHICH WAS RELEASED VIDE LETTER DATED 3/3/2014 AND SUBSEQUENTL Y APPEAL WAS FILED BY THE ASSESSEE, WHO ENGAGED A NEW CHARTERED ACCOUNTANT, SHRI G.P.MEHTA & CO. AND APPEAL WAS FILED ON 20/3/2014. THE STATEMENT MADE IN THE APPLICATION HAS ALSO BEEN SUPPORTED BY AN AFFIDAVIT FILED BY THE ASSESS EE WHICH IS DULY PLACED ON RECORD. 3. IN VIEW OF ABOVE FACTUAL POSITION, AFTER HEARING BOTH THE PARTIES, I AM SATISFIED THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN THE PRESCRIBED TIME. THEREFORE, I CONDONE THE DELAY AN D PROCEED TO DECIDE THE PRESENT APPEAL. 4. A SUM OF RS.3,91,102/- WAS CONSIDERED TO BE INCO ME FROM OTHER SOURCES INSTEAD OF INCOME FROM HOUSE PROPERTY BY THE AO IN ABSENCE OF SUPPORTING EVIDENCE TO HOLD THAT THE SAID INCOME REPRESENTS HOUSE PROP ERTY INCOME. THE STAND OF AO HAS BEEN CONFIRMED BY LD. CIT(A). 5. BEFORE HIM LD. AR HAS FILED AN APPLICATION FOR A DMISSION OF ADDITIONAL EVIDENCE WHICH HAS BEEN IN THE SHAPE OF LEAVE AND LICENCE AGREEMENT DATED 26/10/2005 ENTERED INTO BETWEEN THE ASSESSEE AND MR.NISHIT MEH TA, COPY OF SUCH AGREEMENT IS FILED AT PAGES 29 TO 39 OF THE PAPER BOOK. 6. RELYING UPON THE AFOREMENTIONED ADDITIONAL EVIDE NCE IT WAS THE CASE OF LD. AR THAT IN ABSENCE OF AFOREMENTIONED LEAVE AND L ICENCE AGREEMENT THE INCOME RECEIVED BY THE ASSESSEE AS HOUSE PROPERTY HAS BEE N TREATED BY AO AS INCOME FROM ITA NO.1880/MUM/2014 (A.Y. 2007-08) 3 OTHER SOURCES. HE SUBMITTED THAT ASSESSEE IS ENT ITLED TO GET 30% DEDUCTION UNDER SECTION 24(2) OF THE ACT ON THE SAID INCOME AS SAI D INCOME REPRESENT HOUSE PROPERTY INCOME. IT WAS SUBMITTED BY HIM THAT IN ABSENCE O F AFOREMENTIONED EVIDENCE, THE AFOREMENTIONED INCOME HAS BEEN ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND IN THE INTEREST OF JUSTICE, AFTER ADMI SSION OF THE AFOREMENTIONED ADDITIONAL EVIDENCE MATTER MAY BE SENT BACK TO THE AO FOR RE-ADJUDICATION OF THE ISSUE. 7. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY A.O AND LD. CIT(A). HE SUBMITTED THAT IN ABSENCE OF EVIDENCE T HE CLAIM OF THE ASSESSEE WAS RIGHTLY REJECTED. HOWEVER, LD. DR DID NOT OBJECT T O THE ARGUMENTS OF LD. AR THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF AO FOR R E-ADJUDICATION. 8. IN THIS VIEW OF THE SITUATION, AFTER HEARING BO TH THE PARTIES, I ADMIT THE ADDITIONAL EVIDENCE FILED BY THE LD. AR AND RESTORE THE ISSUE TO THE FILE OF AO WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE RAISED IN THE PRESENT APPEAL AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY AND ALSO THE OPPO RTUNITY TO PLACE ON RECORD ALL THE RELEVANT EVIDENCES AND DOCUMENTS ON WHICH ASSE SSEE IS RELYING TO CLAIM THAT THE SAID AMOUNT REPRESENTS HOUSE PROPERTY INCOME. AFTE R GIVING SUCH OPPORTUNITY THE AO WILL RE-ADJUDICATE THE SAME AS PER LAW. I DIREC T ACCORDINGLY. 9. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD JULY, 2014. . & +,- /#0 03/07/2014 , & 7 SD/- (I.P.BANSAL) / JUDICIAL MEMBER MUMBAI; /# DATED : 3 RD JULY 2014. VM. ITA NO.1880/MUM/2014 (A.Y. 2007-08) 4 . & $(8 98-( . & $(8 98-( . & $(8 98-( . & $(8 98-(/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. $% ! / THE RESPONDENT. 3. :() / THE CIT, MUMBAI. 4. : / CIT(A)-13, MUMBAI 5. 8=7 $(# , , / DR, ITAT, MUMBAI 6. 7> ? / GUARD FILE. .# .# .# .# / BY ORDER, %8( $( //TRUE COPY// @ @@ @/ // /A B A B A B A B (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI