Sh. Deepak Kapoor, New Delhi V. ITO, New Delhi

ITA 2149/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58430 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LD AO
• Keywords: Principle of natural justice; Deemed to accrue or arise in india; Assessment record
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI B BEN CH BEFORE SHRI A.D.JAIN, JM & SHRI A.N. PAHUJA, AM ITA NO.1492/DEL/2011 ASSESSMENT YEAR:2007-08 SHRI DEEPAK KAPOOR, E-1,GREATER KAILASH, NEW DELHI 110 048. V/S . INCOME-TAX OFFICER, W A R D : 13 (2), , NEW DELHI [PAN NO.: AKSPK 3288Q.] (APPELLANT) (RESPONDENT) DATE OF HEARING 22-11-2011 DATE OF PRONOUNCEMENT 06-01-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 02 ND MAY, 2011 BY THE ASSESSEE AGAINST AN ORDER DATED 25 TH JANUARY, 2011 OF THE LD. CIT (APPEALS)XVI, NEW DE LHI, RAISES THE FOLLOWING GROUNDS :- ' 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE , LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.6,00,000/- ON AC COUNT OF DEEMED RENTAL VALUE OF THE GKI PROPERTY ON ESTIMATE BASIS ; 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER L D. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE I MPUGNED ASSESSMENT ORDER PASSED BY LD. AO AND IN NOT DELET ING THE IMPUGNED ADDITION MADE BY LD. AO AND THE ASSESSMENT ORDER IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS AND MORE SO AS THE SAME HAS BEEN PASSED BY RECORDING INCORRECT FACTS AND FINDIN G AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO T HE ASSESSEE AND WITHOUT CROSS EXAMINATION; 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT R EVERSING THE ACTION ASSESSEE BY S/SH. ASHWANI TANEJA, & KUNAL NAGPAL, A RS REVENUE BY SHRI ROHIT GARG, DR 2 I T NO. 2149 (DEL) OF 2011 OF THE LD. AO IN CHARGING INTEREST UNDER SECTION 23 4-B OF THE INCOME TAX ACT, 1961. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. ADVERTING FIRST TO GROUND NOS. 1 & 2 IN THE APPE AL, FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING INCOME OF ` 31,68,280/- FILED ON 31 ST JULY, 2007 BY THE ASSESSEE, AFTER BEING PROCESSED U/S 143(1) OF THE I NCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT] WAS SELECTED FOR SCRUTINY W ITH THE SERVICE OF A NOTICE UNDER SECTION 143(2) OF THE ACT. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER [AO IN SHORT] NOTICED THAT THE ASSESSEE WAS IN OCCUPATION OF THE FOLLOWING THREE PROPERTIES :- 1. PALAM VIHAR, GURGAON; 2. GREATER KAILASH ENCLAVE, NEW DELHI; & 3. B1/6, MALVIYA NAGAR, NEW DELHI. 2.1 THE ASSESSEE MENTIONED ADDRESS OF MALVIYA NAGAR IN HIS RETURN WHILE THE PROPERTY SITUATED AT PALAM VIHAR WAS LET OUT. HOWE VER, IN THE COMPUTATION OF INCOME, IT WAS MENTIONED THAT THE PALAM VIHAR PROPERTY WAS PAR TLY LET OUT AND PARTLY SELF-OCCUPIED. THE PROPERTY AT MALVIYA NAGAR WAS ALSO STATED TO BE SELF-OCCUPIED WHILE THE ASSESSEE WAS SILENT IN RESPECT OF PROPERTY AT GREATER KAILAS H ENCLAVE. IN RESPONSE TO A SHOW- CAUSE NOTICE DATED 10 TH NOVEMBER, 2009, THE ASSESSEE DID NOT APPEAR ON TH E SCHEDULED DATE OF HEARING AND INSTEAD ON 24 TH NOVEMBER, 2009, SUBMITTED A COPY OF SALE DEED OF THE PROPERTY LOCATED IN GREATER KAILAS H ENCLAVE-I WHILE MENTIONING THAT HIS PROPERTY AT PALAM VIHAR WAS LET OUT ; GREATER KAILA SH-I WAS SELF-OCCUPIED AND THE PROPERTY AT MALVIYA NAGAR WAS SELF-OCCUPIED BY HIS BROTHER. SINCE THE ASSESSEE DID NOT REPLY TO QUERIES RAISED ON 26.11.2009, THE AO PROCE EDED TO COMPLETE THE ASSESSMENT ON THE BASIS OF MATERIAL ON RECORD, TREATING THE MA LVIYA NAGAR PROPERTY AS SELF-OCCUPIED. ON THE BASIS OF THE REPORT OF THE INSPECTOR, THE AO CONCLUDED THAT THE PROPERTY AT GREATER KAILASH-I WAS LYING VACANT FOR THE LAST SO MANY YEARS AND COULD FETCH RENT OF 3 I T NO. 2149 (DEL) OF 2011 ` .50,000/- PER MONTH. ACCORDINGLY, THE AO ESTIMATED THE ANNUAL VALUE OF THE SAID IN TERMS OF PROVISIONS OF SECTION 22 OF THE ACT AT ` 6,00,000/- ,DETERMINING LOSS OF 43,130/- UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND COM PLETED THE ASSESSMENT ON AN INCOME OF ` 3 5,88,276/-. 3. ON APPEAL, THE ASSESSEE SUBMITTED BEFORE THE LD. CIT (APPEALS) AS UNDER :- 'DURING THE COURSE OF ASSESSMENT THE ASSESSEE WAS A SKED TO EXPLAIN THE STATUS OF 3 PROPERTIES, I.E. PALAM VIHA R, GK ENCLAVE-I AND MALVIYA NAGAR. THE ASSESSEE HAD FILED HIS RETUR N OF INCOME (ROL) FROM THE MALVIYA NAGAR, ADDRESS. THE ASSESSEE EXPLAINED THAT PALAM VIHAR WAS LET OUT, THAT GK-J, WAS SELF O CCUPIED, AND THAT MALVIYA NAGAR WAS OCCUPIED BY THIS BROTHER AND CO-OWNER. HOWEVER, THE LD. AO DISBELIEVED THIS EXPLANATION OF THE ASSESSEE AND TREATED THE MALVIYA NAGAR HOUSE AS SELF OCCUPIE D, BASED UPON THE ROI ADDRESS, AND TREATED THE GK ENCLAVE-I HOUSE AS UNOCCUPIED, BASED UPON THE INSPECTOR'S REPORT AND M ADE AN ADDITION OF RS.4,20, 000/- (50,000/- PM ESTIMATED M ARKET RENT X 12 6,00,0001-LESS 30% ALLOWANCE). IT IS SUBMITTED AS UNDER: 1. THAT THE ASSESSEE HAS BEEN FILLING HIS ROI FROM THE MALVIYA NAGAR ADDRESS SINCE THE PAST MANY YEARS AS THE HOUS E BELONGED TO HIS FATHER AND THE ASSESSEE WAS ORIGINALLY STAYI NG THERE. 2. THAT THE ASSESSEE WAS, DURING THE YEAR, ACTUALLY AND FACTUALLY RESIDING AT THE GK ENCLAVE-I HOUSE. THIS IS CORROBO RATED BY COPIES OF HIS BANK STATEMENTS FOR THE YEAR UNDER RE VIEW WHICH BEAR HIS GK ENCLAVE-I ADDRESS, AND WHICH ARE PART O F THE ASSESSMENT RECORD. 3. THAT THE INSPECTOR'S REPORT WAS OBTAINED BEHIND THE BACK OF THE ASSESSEE AND THE ASSESSEE WAS NEVER CONFRONTED WITH THE SAME. THIS IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE A S THE ASSESSEE WAS NOT GIVEN THE OPPORTUNITY TO STUDY AND REBUT TH E EVIDENCE RELIED UPON BY THE LD. A.O. THE AO WHILE MAKING AN ASSESSMENT U/S 143(3), IS REQUIRED TO AFFORD REASONABLE OPPORTUNITY OF BEI NG HEARD ON SUCH MATERIAL GATHERED WITHOUT KNOWLEDGE O F THE ASSESSEE OR AT THE BACK OF THE ASSESSEE. SINCE THIS WAS NOT DONE, THE ASSESSMENT IS BAD IN LAW AND THE ADDITION DESER VES TO BE DELETED. THE ASSESSEE SEEKS TO RELY UPON THE FOLLOW ING: 4 I T NO. 2149 (DEL) OF 2011 KISHINCHAND CHELLARAM VS. CIT, 125 ITR 713 (SC) SMT. P. NARASAMMA VS. ITO, 93 ITD 71 (HYD.) 4. THAT NOTWITHSTANDING AND WITHOUT PREJUDICE TO WH AT HAS BEEN STATED ABOVE, THE LD. A.O. HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN MAKING THE ADDITION BASED UPON ESTIMATED FA IR MARKET RENT. ANNUAL VALUE OF THE BUILDING HAS TO BE TAKEN ON THE BASIS OF STANDARD RENT DETERMINABLE UNDER THE PROVISIONS OF THE DELHI RENT CONTROL ACT, 1958, AND NOT THE MARKET RENT. THE ASSESSEE SEEKS TO RELY UPON THE CASE LAW: MRS. SHEELA VS. CIT, 131 ITR 435 (SC) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION IS BAD IN LAW AND DESERVES TO BE DELETED. ' FURTHER TO OUR MEETING ON 11/01/2011 IN THE SAID PROCEEDINGS I HAD GIVEN MY WRITTEN SUBMISSIONS RELATING TO THE SO LITARY GROUND OF APPEAL AND ALSO EXPLAINED TO YOU THAT THE ASSESSING OFFICER (A.O.) HAD TREATED THE GK-I ENCLAVE PROPERTY AS UNOCCUPIED AND ASSESSED THE MARKET VALUE OF RENT AT RS.50,000/- PE R MONTH & TAXED ACCORDINGLY. SHE HAD BASED HER ASSUMPTION ON THE B ASIS OF THE INSPECTOR'S REPORT OF HIS VISIT TO THE SAID PREMISES IN OCTOBER/NOVEMBER 09, THAT THE SAID PREMISES WERE UN OCCUPIED. WE HAD ALSO INFORMED YOU VIDE OUR SUBMISSION DATED 11/01/2011 THAT THE A.O. HAD NOT CONFRONTED US WITH THE SAID R EPORT OF THE INSPECTOR. IN MY SAID SUBMISSION DATED 11/01/2011 I HAD ENCLOSED COPIES OF APPELLANT'S BANK STATEMENTS FOR THE PREVIOUS YEAR RELEVANT TO THE A. Y UNDER REVIEW, CLEARLY SHO WING THE APPELLANT'S RESIDENTIAL ADDRESS AS GK-I, ENCLAVE. I HAD ALSO INFORMED YOU THAT I WILL GIVE FURTHER PROOF OF HIS OCCUPATION OF THE SAID PREMISES IN THE RELEVANT PREVIOUS YEAR BY WAY OF COPIES OF ELECTRICITY BILLS. ACCORDINGLY, PLEASE FIND ENCLOSE D PRINTOUT OF THE CONSUMPTION OF ELECTRICITY BY THE APPELLANT DURING HIS RESIDENTIAL OCCUPATION OF THE GK-I ENCLAVE PREMISES FROM JULY 2 002 TO DEC. 2010. THE SAME WAS DOWNLOADED BY THE APPELLANT FROM THE WEBSITE OF BSES. A PERUSAL OF THE SAME CLEARLY SHOW S THAT THE APPELLANT HAS PAID AT LEAST RS.88,432/- TO BSES TOW ARDS CONSUMPTION OF ELECTRICITY DURING THE PREVIOUS YEAR UNDER REVIEW. THIS FACT CLEARLY PROVES THAT THE APPELLANT WAS RES IDING IN THE SAID PREMISES DURING THE PREVIOUS YEAR UNDER REVIEW. IT IS ALSO PERTINENT TO POINT OUT THAT THE A.O . PRESUMED THAT THE SAID PREMISES WERE UNOCCUPIED DURING THE PERIOD APRIL, 2 006 TO MARCH, 2007 (BEING THE PREVIOUS YEAR UNDER REVIEW RELEVANT TO THE A. Y. 2007-08) ON THE BASIS OF THE INSPECTOR'S REPORT OF 5 I T NO. 2149 (DEL) OF 2011 OCTOBER/NOVEMBER 2009 WHICH IS CLEARLY TWO AND A HA LF YEARS FROM THE END OF THE PREVIOUS YEAR UNDER REVIEW. IN VIEW OF OUR SUBMISSION ON 11.01.2011 AND THE ABO VE INFORMATION IT IS PRAYED THAT THE ADDITION MADE BY THE AO BE DELETED. ' 4. IN THE LIGHT OF AFORESAID SUBMISSIONS THE LD . CIT(A) CONCLUDED AS UNDER: 2.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY T HE AUTHORIZED REPRESENTATIVE OF THE APPELLANT COMPANY. WHEN AN INDIVIDUAL ASSESSEE FILES HIS/HER RETURN, WHEREIN H IS ADDRESS IS DECLARED, THE PRESUMPTION IS THAT THE ADDRESS SHOWN IN THE RETURN OF INCOME IS THE RESIDENTIAL ADDRESS OF THE ASSESSE E. THEREFORE, I AM IN AGREEMENT WITH THE A.O. THAT THE MALVIYA NAGA R ADDRESS GIVEN IN THE APPELLANT'S RETURN OF INCOME MUST BE H IS RESIDENTIAL ADDRESS. THE APPELLANT CANNOT TAKE A DIFFERENT STAN D THAN THE ONE TAKEN BY HIM FILING HIS RETURN AND SHOW HIS RES IDENTIAL ADDRESS TO BE IN GREATER KAILASH-I, THE DEMAND RAIS ED BY THE BSES IN RESPECT OF THE HOUSE IN G.K.-I IN THE NAME OF THE APPELLANT DOES NOT IN ANY WAY PROVE THAT THE APPELL ANT WAS STAYING THERE BECAUSE EVEN IF A TENANT IS STAYING A T SOME PREMISES, THE ELECTRICITY BILL IS RAISED IN THE NAM E OF THE OWNER. SIMILARLY, THE G.K.-I, ADDRESS OF THE APPELLANT SHO WN IN HIS BANK STATEMENT COULD POSSIBLY BE BECAUSE OF THE APPELLAN T USING THE G.K.-I, ADDRESS FOR CORRESPONDENCE PURPOSES. WITHOU T PREJUDICE TO THE FOREGOING DISCUSSION, EVEN IF THE APPELLANT' S PLEA THAT HE WAS ACTUALLY USING THE G.K. PROPERTY FOR HIS RESIDE NCE WERE TO BE ACCEPTED, THE DEEMED INCOME FROM THE OTHER TWO PROP ERTIES WOULD HAVE TO BE BROUGHT TO TAX AS PER THE PROVISIO NS OF SECTION 23(4), WHEREAS THE APPELLANT HAS IN HIS RETURN OF I NCOME DECLARED RENTAL INCOME FROM ONLY ONE PROPERTY, THAT IS, AT P ALAM VIHAR, GURGOAN. IN OTHER WORDS, DEEMED INCOME FROM ONE MOR E PROPERTY, WHETHER G.K.-I OR MALVIYA NAGAR WILL HAV E TO BE BROUGHT TO TAX. FOR THE REASONS DISCUSSED ABOVE, TH E ADDRESS AS DISCLOSED BY THE APPELLANT IN HIS RETURN OF INCOME HAS TO BE TAKEN AS HIS RESIDENTIAL ADDRESS AND THE OTHER TWO PROPER TIES OWNED BY IT HAVE RIGHTLY BEEN TAKEN AS DEEMED TO BE LET OUT. THOUGH THE APPELLANT HAS REQUESTED THAT IN CASE DEEMED INCOME FROM THE PROPERTY AT G.K.-I IS BROUGHT TO TAX, THE STANDARD RENT AS PER THE RENT ACT MAY BE TAKEN AND NOT THE MARKET RATE AS AD OPTED BY THE ASSESSING OFFICER, HOWEVER, THE APPELLANT HAS N OT SPECIFIED AS TO WHAT WAS THE STANDARD RENT AS PER THE RENT ACT O F THE G.K.-I PROPERTY NOR GIVEN ANY EVIDENCE REGARDING THE SAME. THEREFORE, THE ADDITION OF RS.6,00,000/- MADE BY THE A.O. ON A CCOUNT OF 6 I T NO. 2149 (DEL) OF 2011 DEEMED RENTAL VALUE OF THE G.K.-I PROPERTY IS UPHEL D. THESE GROUNDS OF APPEAL ARE DISMISSED. 5. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDING OF THE LD. CIT (A). THE LD. AR ON BEHALF OF THE ASSESSEE WHIL E CARRYING US THROUGH THE IMPUGNED ORDER AND INVITING OUR ATTENTION TO PROVISIONS OF S ECTION 23 OF THE ACT, CONTENDED THAT THE ASSESSEE HAD THE RIGHT TO EXERCISE HIS OPTION TO CH OOSE ONE OF THE PROPERTY AS SELF- OCCUPIED PROPERTY IN TERMS OF PROVISIONS OF SECTION 23(4) OF THE ACT. SINCE THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, EXERCI SED THE OPTION, TREATING GREATER KAILASH ENCLAVE-I PROPERTY AS SELF-OCCUPIED, THE AO COULD NOT THRUST UPON THE ASSESSEE MALVIYA NAGAR PROPERTY AS SELF-OCCUPIED. THE LD. A R FURTHER SUBMITTED THAT IN THE EVENT GREATER KAILASH ENCLAVE-I PROPERTY IS CONSIDERED AS SELF-OCCUPIED, THEN THE ANNUAL LETTING VALUE OF THE PROPERTY AT MALVIYA NAGAR WOUL D HAVE TO BE DETERMINED IN THE LIGHT OF DECISIONS IN THE CASE OF CIT VS. MONI KUMAR SUBBA [ 2011] 333 ITR 38 (DEL.); CIT VS. SATYA CO. LTD. [1997] 140 CTR (CAL.) 569 AND MRS. SHEILA KAUSHISH VS. CIT, 131 ITR 435 (SC). ON THE OTHER HAND, THE LD. DR WHILE SUPP ORTING THE ORDER OF THE AO SUBMITTED THAT SINCE THE ASSESSEE HIMSELF MENTIONED ADDRESS O F THE MALVIYA NAGAR IN HIS RETURN OF INCOME, THE SAID PROPERTY ALONE COULD BE TREATED AS SELF-OCCUPIED PROPERTY IN TERMS OF PROVISIONS OF SECTION 23(4) OF THE ACT. TO A QUERY BY THE BENCH, THE LD. AR SUBMITTED THAT THE MATTER REQUIRES RE-ADJUDICATION AT THE LEV EL OF THE AO SINCE COMPLETE FACTS WERE NOT AVAILABLE BEFORE THE AO AT THE TIME OF COMPLETI ON OF ASSESSMENT. THE LD. DR DID NOT OPPOSE THIS REPLY OF THE LD. AR. 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. THE ONLY DISPUTE BEFORE US IS AS TO WHICH ONE OF THE TH REE PROPERTIES OF THE ASSESSEE CAN BE CONSIDERED AS SELF OCCUPIED PROPERTY.. AT THE OUTSE T, WE MAY HAVE A LOOK AT THE RELEVANT PROVISIONS OF SECTION 23 OF THE ACT ,WHICH READ AS FOLLOWS :- 23. ANNUAL VALUE HOW DETERMINED. (1) FOR THE PURPOSES OF SECTION 22, THE ANNUAL VALU E OF ANY PROPERTY SHALL BE DEEMED TO BE- 7 I T NO. 2149 (DEL) OF 2011 (A) THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR; OR (B) WHERE THE PROPERTY OR ANY PART OF THE PROPERTY IS LET AND THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THEREOF IS IN EXCESS OF THE SUM REFERRED TO IN CLAUSE (A), THE AMOUNT SO RECEIVED OR RECEIVABLE; OR (C) WHERE THE PROPERTY OR ANY PART OF THE PROPERTY IS LET AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR AND OWING TO SUCH VACANCY THE ACTUAL RENT RECEIVED OR RECEIVA BLE BY THE OWNER IN RESPECT THEREOF IS LESS THAN THE SUM REFERRED TO IN CLAUSE (A), THE AMOUNT SO RECEIVED OR RECEIVABLE: PROVIDED THAT THE TAXES LEVIED BY ANY LOCAL AUTHORI TY IN RESPECT OF THE PROPERTY SHALL BE DEDUCTED (IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH TAXES WAS INCURRED BY THE OWNER ACCORDING TO THE METHOD OF ACCOUNTING REGULARLY EMP LOYED BY HIM) IN DETERMINING THE ANNUAL VALUE OF THE PROPERTY OF THAT PREVIOUS YEAR IN WHICH SUCH TAXES ARE ACTUALLY PAID BY HIM. EXPLANATION.-FOR THE PURPOSES OF CLAUSE (B) OR CLAU SE (C) OF THIS SUB-SECTION, THE AMOUNT OF ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER SHALL NOT INCLUDE, SUBJECT TO SUCH RULES AS M AY BE MADE IN THIS BEHALF, THE AMOUNT OF RENT WHICH THE OWNER CAN NOT REALISE. (2) WHERE THE PROPERTY CONSISTS OF A HOUSE OR PART OF A HOUSE WHICH- (A) IS IN THE OCCUPATION OF THE OWNER FOR THE PURPO SES OF HIS OWN RESIDENCE; OR (B) CANNOT ACTUALLY BE OCCUPIED BY THE OWNER BY REA SON OF THE FACT THAT OWING TO HIS EMPLOYMENT, BUSINESS OR PROFESSIO N CARRIED ON AT ANY OTHER PLACE, HE HAS TO RESIDE AT THAT OTHER PLA CE IN A BUILDING NOT BELONGING TO HIM, THE ANNUAL VALUE OF SUCH HOUSE OR PART OF THE HOUSE SHALL BE TAKEN TO BE NIL. (3) THE PROVISIONS OF SUB-SECTION (2) SHALL NOT APP LY IF- (A) THE HOUSE OR PART OF THE HOUSE IS ACTUALLY LET DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR; OR (B) ANY OTHER BENEFIT THEREFROM IS DERIVED BY THE O WNER. 8 I T NO. 2149 (DEL) OF 2011 (4) WHERE THE PROPERTY REFERRED TO IN SUB-SECTION ( 2) CONSISTS OF MORE THAN ONE HOUSE- (A) THE PROVISIONS OF THAT SUB-SECTION SHALL APPLY ONLY IN RESPECT OF ONE OF SUCH HOUSES, WHICH THE ASSESSEE MAY, AT HIS OPTION, SPECIFY IN THIS BEHALF; (B) THE ANNUAL VALUE OF THE HOUSE OR HOUSES, OTHER THAN THE HOUSE IN RESPECT OF WHICH THE ASSESSEE HAS EXERCISED AN O PTION UNDER CLAUSE (A), SHALL BE DETERMINED UNDER SUB-SECTION ( 1) AS IF SUCH HOUSE OR HOUSES HAD BEEN LET. 6.1. WHAT IS CHARGEABLE IN TERMS OF PROVISIONS OF S EC. 22 OF THE ACT IS ANNUAL VALUE. ANNUAL VALUE IS DEEMED IN TERMS OF PROVISIONS OF SEC.23 OF THE ACT. IN TERMS OF CLAUSE (A) OF SECTION 23(1) OF THE ACT, ALV HAS TO BE DETE RMINED ON THE BASIS OF SUM FOR WHICH PROPERTY MIGHT BE REASONABLY EXPECTED TO LET FROM Y EAR TO YEAR. IN THE CASE OF CIT VS. SATYA CO. LTD. (1994) 75 TAXMAN 193 (CAL), A DIVISI ON BENCH OF THE HONBLE CALCUTTA HIGH COURT HELD THAT WHEN THE ANNUAL VALUE IS DECI DED UNDER S. 23(1)(A) OF THE ACT WITH REFERENCE TO THE FAIR RENT, THEN THE SAID FAIR RENT TAKES INTO CONSIDERATION EVERYTHING. IN TERMS OF THE AFORESAID PROVISIONS OF S. 23(4) OF T HE ACT, THE ASSESSEE HAS BEEN GIVEN THE OPTION TO CHOOSE ONE OF THE PROPERTIES AS SELF- OCCUPIED AND IN THIS CASE, THE ASSESSEE CHOSE GREATER KAILASH ENCLAVE-I PROPERTY A S SELF-OCCUPIED WHILE THE AO OBSERVED THAT ADDRESS OF MALVIYA NAGAR PROPERTY HAV ING BEEN GIVEN IN THE RETURN, THE ASSESSEE HAD ALREADY EXERCISED THE OPTION PROVIDED IN S. 23(4) OF THE ACT. THE LD. CIT(A) CONCURRED WITH THE AO , IGNORING THE PLEA OF THE ASSESSEE THAT ADDRESS OF GREATER KAILASH PROPERTY WAS MENTIONED IN THE BANK AS ALSO IN THE ELECTRICITY BILLS. WE ARE OF THE OPINION THAT ONCE THE LAW PROVIDES OPTIO N TO THE ASSESSEE TO CHOOSE ANY ONE PROPERTY MENTIONED IN SUB-SECTION (2) OF SEC. 23 O F THE ACT AS SELF OCCUPIED, NO RESTRICTIONS CAN BE PUT ON SUCH OPTION AND THE AO O R THE LD. CIT(A) CANNOT THRUST UPON THEIR CHOICE ON THE ASSESSEE. ONLY REQUIREMENT IS T HAT PROPERTY SHOULD BE SUCH AS IS REFERRED TO IN S.23(2) OF THE ACT. IN THE INSTANT C ASE, THE ASSESSEE PLEADED BEFORE THE AO THAT HIS PALAM VIHAR PROPERTY IS LET OUT WHILE G K ENCLAVE-1 IS SELF OCCUPIED AND THE MALVIYA NAGAR IS CO-OWNED WITH HIS BROTHER, WHO IS OCCUPYING THAT PROPERTY. AS POINTED OUT BY THE LD. DR, IN THE COMPUTATION OF INCOME PLA CED IN PAPER BOOK ON PAGE 2 , EVEN 9 I T NO. 2149 (DEL) OF 2011 PALAM VIHAR PROPERTY IS STATED TO BE PARTLY LET OUT AND PARTLY SELF OCCUPIED. WE FIND THAT NEITHER THE AO NOR THE LD. CIT(A) RECORDED ANY FIND INGS AS TO WHICH ARE THE PROPERTIES IN THE INSTANT CASE WHICH FALL WITHIN THE PURVIEW O F S. 23(2) OF THE ACT. IN THESE CIRCUMSTANCES, WE CONSIDER IT FAIR AND APPROPRIATE TO VACATE THE FINDINGS OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTIONS TO IDENTIFY THE PROPERTIES IN THE INSTANT CASE WHICH FALL WITHIN T HE PURVIEW OF S. 23(2) OF THE ACT AND ALLOW THE ASSESSEE OPTION MENTIONED IN S.23(4) OF THE ACT TO CHOOSE ANY ONE OF THESE AS SELF OCCUPIED PROPERTY.THEREAFTER, THE ASSESSME NT MAY BE COMPLETED IN ACCORDANCE WITH LAW AFTER DETERMINING ALV OF THE SA ID PROPERTY IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS, INCLUDING THOSE REFERRED T O ABOVE . THE ASSESSEE IS DIRECTED TO PLACE ALL THE RELEVANT FACTS BEFORE THE AO AND CO-O PERATE IN EXPEDITIOUS COMPLETION OF ASSESSMENT. THE AO IS FREE TO UNDERTAKE ANY INDEPE NDENT ENQUIRES, IF FOUND NECESSARY . WITH THESE OBSERVATIONS, GROUND NOS. 1 & 2 IN THE APPEAL ARE DISPOSED OF. SINCE THE ISSUES ARE RESTORED TO THE FILE OF THE AO , THE GROUND NO.3 RELATING TO LEVY OF INTEREST U/S 234B OF THE ACT DOES NOT SURVIVE FOR OUR ADJUDICATION AT THIS STAGE. 7. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERMS OF RESIDUARY GROUND NO. 4 IN THE APPEAL, ACCORDINGLY, THIS GROUND IS DISMISSED. 8. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. 9.. IN THE RESULT, APPEAL IS ALLOWED BUT FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT SD/- SD/- (A.D.JAIN) ( A. N.PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. SHRI DEEPAK KAPOOR, E-1,GREATER KAILASH, N E W D E L H I 110 048. 2. INCOME-TAX OFFICER, W A R D-13 (2), NEW DELHI . 10 I T NO. 2149 (DEL) OF 2011 3. CIT CONCERNED, 4. CIT (APPEALS)-XVI,NEW DELHI, 5. DR, ITAT, B BENCH,NEW DELHI. 6. GUARD FILE TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.