Smt. Asha Rani Gupta, Agra V. A.C.I.T., Circle-1, Agra

ITA 22/AGR/2013

• Counselvise Citation: 2220314 RSA 2013
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 23-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.22/AGRA/2013 ASSESSMENT YEAR: 2008-09 SMT. ASHA RANI GUPTA, VS. ASSTT. COMMISSIONER O F INCOME TAX, 4341, VIJAY NAGAR COLONY, CIRCLE-1, AGRA. AGRA. (PAN : ABCPG 3945 R). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARG, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 08.08.2013 DATE OF PRONOUNCEMENT : 14.08.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 12.09.2012 PASSED BY THE LD. CIT(A)-I, AGRA FOR THE A.Y. 2008- 09. 2. THE SOLE GROUND RAISED BY THE ASSESSEE IN HER AP PEAL IS IN RESPECT OF ADDITION OF RS.1,72,181/- ON ACCOUNT OF RENTAL INCOME. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE A.O. NOTICED THAT THE ASSESSEE HAS SHOWN RENTAL INC OME FOR THE PERIOD JANUARY 2008 2 ITA NO.22/AGRA/2013 A.Y. 2008-09 TO MARCH 2008 WHEREAS IT HAS ALSO BEEN NOTICED BY T HE A.O. THAT THE PROPERTY UNDER CONSIDERATION HAS COME IN POSSESSION OF THE ASSESSE E FROM 08.11.2007 AND THIS PROPERTY WAS GIVEN ON RENT TO THE TENANT M/S. AND D ESIGN INDIA LIMITED BY ENTERING INTO AN AGREEMENT THROUGH A LEASE DEED AND AS PER THIS LEASE DEED THE PROPERTY WAS GIVEN IN POSSESSION OF THE TENANT FROM THE DATE 25.06.2007. THE A.O. NOTED THAT THE PROPERTY WAS WITH THE TENANT SINCE 2 5.06.2007 AS PER THE LEASE DEED AND IT BECAME READY TO BE USED BY THE TENANT FROM 0 8.11.2007. THE A.O. FOUND THAT THE RENT OF THE PROPERTY FOR THE PERIOD OF PAR T OF THE MONTH OF NOVEMBER 2007 AND ENTIRE MONTH OF DECEMBER 2007 IS ASSESSABLE UND ER SECTION 23 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). THE A.O. HA S CALCULATED THE LETTABLE VALUE OF THE PROPERTY FROM 08.11.2007 TO 31.12.207 ON THE BA SIS OF RENT RECEIVED BY THE ASSESSEE AND ACCORDINGLY ADDITION OF RS.1,72,181/- WAS MADE. 4. THE CIT(A) CONFIRMED THE ORDER OF THE A.O. AS UN DER :- (PARAGRAPH NO.8, PAGE NOS.6 & 7) 8. FROM THE ABOVE DECISION, I FIND THAT THE HONBL E MUMBAI BENCH OF ITAT HAS CLEARLY HELD THAT IN CLAUSE (C) OF THE SECTION 23(1), THE WORD ACTUALLY LET ARE NOT USED AS IT HAS BEEN USE D IN SECTION 23(3) AND, THEREFORE, THE WORD PROPERTY IS LET USED IN PROVISIONS OF SECTION 23(1)(C) CANNOT BE INTERPRETED AS PROPERTY ACTUALL Y LET OUT AND, THEREFORE, THIS WORD PROPERTY IS LET HAS BEEN HEL D TO BE RELATING TO THOSE PROPERTIES WHICH ARE IN THE POSSESSION OF THE ASSESSES HAVING INTENTION TO LET OUT IN THE RELEVANT YEAR COUPLED W ITH EFFORTS MADE FOR LETTING IT OUT. IN THE PRESENT CASE UNDER CONSIDER ATION, INTENTION OF LETTING OUT OF THE PROPERTY DURING THE RELEVANT VAC ANT PERIOD OF NOVEMBER AND DECEMBER, 2007 CANNOT BE DISPUTED BECA USE THE ASSESSEE HAS ENTERED INTO AN AGREEMENT THROUGH A LE ASE DEED WITH A TENANT, M/S AND DESIGN INDIA LIMITED HAVING A CLAUS E TO HANDOVER 3 ITA NO.22/AGRA/2013 A.Y. 2008-09 THE PROPERTY TO THE TENANT FROM THE DATE 25.06.2007 , MUCH BEFORE THE DATE OF TAKING OVER THE ACTUAL POSSESSION OF THE PR OPERTY AND ITS BEING READY FOR USE. THEREFORE, IT CAN BE VERY WELL HELD THAT THE ASSESSEE HAD INTENTION TO LET OUT THIS PROPERTY AND THE PROP ERTY WAS LET OUT SINCE THE DATE OF TAKING OVER OF THE ACTUAL POSSESS ION OF THE PROPERTY ON 08.11.2007 AFTER IT BECAME READY TO BE USED AND HENCE THE RECEIVABLE VALUE OF RENT CAN BE WORKED OUT FROM THE DATE OF TAKING OVER OF THE ACTUAL POSSESSION OF THE PROPERTY I.E. 08.11.2007. SINCE, THE ASSESSEE (APPELLANT) HAS ALREADY DECLARED THE R ENTAL VALUE OF THE PROPERTY FROM JANUARY, 2008 ONWARD, I FIND THAT THE AO HAS CORRECTLY COMPUTED THE LETTABLE VALUE OF THE PROPERTY FROM 08 .11.2007 TO 31.12.2007 AS COMPUTED BY HIM IN THE ASSESSMENT ORD ER IN ADDITION TO RENT DECLARED BY THE ASSESSEE AND ADDED TO THE INCO ME OF THE ASSESSEE CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPER TY SO THAT ENTIRE INCOME CHARGEABLE UNDER THIS HEAD DURING THE YEAR UNDER CONSIDERATION IS CORRECTLY BROUGHT TO TAX AS PER TH E PROVISIONS OF SECTIONS 23 OF THE ACT. THEREFORE, I CONFIRM THE L ETTING OUT VALUE OF THE HOUSE PROPERTY AS COMPUTED BY THE AO IN THE ASSESSM ENT ORDER AT RS.1,72,181/- FOR THE ABOVE MENTIONED PERIOD AND AD DED TO THE INCOME OF THE ASSESSEE (APPELLANT). ACCORDINGLY, ALL THE GROUNDS FROM NO.1 TO 3 TAKEN BY THE APPELLANT IN THE APPEAL ARE DISMISSE D. 5. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ISSUE IS COVERED BY THE ORDER OF I.T.A.T. IN ITA NO.351/AGRA/2012 AND OTHER S, ORDER DATED 28.12.2012, WHEREIN THE I.T.A.T. HELD THAT THE RENT TAKEN ON MU NICIPAL RATE CAN BE TAKEN FOR THE PURPOSE OF INCOME FROM RENT. THE LD. AUTHORISED RE PRESENTATIVE DID NOT DISPUTE ABOUT THE OTHER FACTS NOTED BY THE REVENUE AUTHORIT IES. 6. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE ORDER OF CIT(A). 4 ITA NO.22/AGRA/2013 A.Y. 2008-09 7. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. THE ADMITTED FACTS OF THE CASE ARE THAT THE PROPERT Y WAS GIVEN ON RENT TO M/S. AND DESIGN INDIA LIMITED AND ACTUAL POSSESSION OF THE P ROPERTY WAS GIVEN ON 08.11.2007. THE ASSESSEE HAS FAILED TO FURNISH ANY CONVINCING REASON WHY THE RENT FOR THE PERIOD 08.11.2007 TO 31.12.2007 HAS NOT BEE N SHOWN BY THE ASSESSEE WHEREAS THE PROPERTY WAS GIVEN ON RENT. THE LEASE DEED AND OTHER DETAILS ARE ALSO NOT AVAILABLE ON RECORD. IN THE ABSENCE OF MATERIA L EVIDENCE OR RELATED RECORDS, WE ARE OF THE VIEW THAT THE PROPERTY HAS BEEN LET OUT ON 08.11.2007. ACCORDING TO SECTION 23(1)(B) WHICH PROVIDES THAT WHERE THE PROP ERTY OR ANY PART OF THE PROPERTY IS LET AND THE ACTUAL RENT RECEIVED OR RECEIVABLE B Y THE OWNER IN RESPECT THEREOF IS IN EXCESS OF THE SUM REFERRED TO IN CLAUSE (A), THE AM OUNT SO RECEIVED OR RECEIVABLE. THIS CLAUSE IS APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION AS THE ASSESSEE IS RECEIVING RENT. THE ASSESSEE HAS FAILED TO POIN T OUT ANY REASON FOR NOT RECEIVING THE RENT FROM 08.11.2007 TO 31.12.2007 WHEREAS THE PROPERTY WAS LET OUT FROM 08.11.2007. WHEN THE ASSESSEE HAS RECEIVED THE REN T, THE ANNUAL VALUE FOR THE PURPOSE OF INCOME FROM HOUSE PROPERTY TO BE CALCULA TED IN ACCORDANCE WITH SECTION 23(1)(B) OF THE ACT. THE REVENUE AUTHORITIES HAVE RIGHTLY CAME TO THE CONCLUSION THAT WHEN THE ASSESSEE HAS SHOWN RENT FOR JANUARY 2 008 TO MARCH 2008, UNLESS CONTRARY MATERIAL IS POINTED OUT, THE SAME RATE OF RENT IS RECEIVABLE FOR THE PERIOD 08.11.2007 TO 31.12.2007. THUS, ACCORDING TO SECTI ON 23(1)(B) OF THE ACT, THE TOTAL ANNUAL VALUE SHOULD BE RENT RECEIVED PLUS RENT RECE IVABLE. WE FIND THAT THE CIT(A) 5 ITA NO.22/AGRA/2013 A.Y. 2008-09 HAS RIGHTLY SUSTAINED THE ADDITION OF RS.1,72,181/- MADE BY THE A.O. TOWARDS RENT FOR THE PERIOD 08.11.2007 TO 31.12.2007. 8. THE DECISION CITED BY THE LD. AUTHORISED REPRESE NTATIVE DOES NOT HELP TO THE ASSESSEE BECAUSE IN THAT ORDER THE ISSUE DECIDED WA S PERTAINING TO SECTION 23(1)(A) OF THE ACT WHICH PROVIDES THAT THE SUM FOR WHICH TH E PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR WILL BE ANNUAL VA LUE, WHEREAS, THERE IS NO SUCH FACT WHICH HAS BEEN INVOLVED IN THE CASE UNDER CONS IDERATION. IN THE CASE UNDER CONSIDERATION, SECTION 23(1)(B) IS CLEARLY APPLICAB LE. THUS, THE SAID ORDER OF I.T.A.T. CITED BY THE LD. AUTHORISE REPRESENTATIVE IS DISTINGUISHABLE ON FACTS. AFTER CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AS THE ASSESSEE HAS FAILED TO POINT OUT ANY CONTRARY FACT TO THE FINDING OF THE CIT(A). IN THE LIGHT OF THE FACT, O RDER OF THE CIT(A) IS CONFIRMED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT (APPEALS) CONCERNED/CIT CO NCERNED/ D.R., ITAT, AGRA BENCH, AGRA/ GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY