VASWANI TRUST, MUMBAI V. ITO 17(3)(5), MUMBAI

ITA 2404/MUM/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0386 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 07-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2017
• Court: TRIBUNAL
• Department Lawyers: KUMAR SANJAY

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 2404 /MUM/ 201 7 (ASSESSMENT YEAR 20 12 - 13 ) VASWANI TRUST VASWANI GARDENS 25, SOBANI ROAD CUFFE PARADE MUMBAI - 400 005. VS. ITO 17(3)(5) MUMBAI ( APPELLANT ) ( R ESPONDENT ) PAN NO . AAATV6765B ASSESSEE BY MR. KISHOR CHAUDHARI DEPARTMENT BY SHRI KUMAR SANJAY DATE OF HEARING 7.6 . 201 7 DATE OF PRONOUNCEMENT 7.6 . 201 7 O R D E R THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 16 - 01 - 2017 PASSED BY LD CIT(A) - 28, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2012 - 13. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ANNUAL LETTING VALUE DETERMINED BY THE AO. 2. THE ASSESSEE OWNED A COMMERCIAL PREMISES ADMEAS URING 2775 SQ.FT. IT DID NOT DECLARE ANY RENTAL INCOME THERE FROM DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE SUBMITTED THAT THE PRORATE RATEABLE VALUE FIXED BY BOMBAY MUNICIPAL CORPORATION IS ASSESSABLE U/S 23(1)(A) OF THE ACT. HOWEVER THE AO NOT ICED THAT THE ASSESSEE HAS DECLARED MONTHLY RENT OF RS.4,16,250/ - IN THE IMMEDIATELY PRECEDING YEAR. ACCORDINGLY HE DETERMINED THE FAIR RENTAL VALUE OF THE PROPERTY AT RS.69,93,000/ - BY DETERMINING THE MONTHLY RENTAL VALUE AT RS.5,82,750/ - AND ACCORDINGLY ASSESSED THE SAME. THE LD CIT(A) CONFIRMED THE ORDER PASSED BY THE AO AND HENCE THE ASSESSEE HAS FILED THIS APPEAL. VASVANI TUST 2 3. THE LD A.R, HOWEVER, TOOK A NEW PLEA BEFORE ME. HE SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SEC. 23(1) (A) OF THE ACT IN THE INSTANT CASE. HE SUBMITTED THAT THE IMPUGNED PROPERTY HAD BEEN LET OUT IN THE PRECEDING YEAR AND ALSO IN THE SUCCEEDING YEAR. IT REMAINED VACANT ONLY DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY HE SUBMITTED THAT THE PROVISIONS OF SEC. 23(1)(C) SHALL APPLY TO THE FACTS OF THE PRESENT CASE AND HENCE THE ANNUAL LETTING VALUE SHOULD BE TAKEN AS NIL, AS THE PROPERTY HAS REMAINED VACANT DURING THE WHOLE OF THE YEAR. IN THIS REGARD HE PLACED RELIANCE ON THE DECISION RENDERED BY THE C O - ORDINATE BENCH IN THE CASE OF M/S INFORMED TECHNOLOGIES INDIA LTD VS. DCIT (2017 (2) TMI 744 ITAT MUMBAI. 4. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ASSESSEE HAS LET OUT THE PROPERTY IN THE SUCCEEDING YEAR AT LOWER AMOUNT. FURTHER HE SUBMITT ED THAT THE PRINCIPLES OF RES JUDICATA SHALL NOT APPLY TO THE INCOME TAX PROCEEDINGS. ACCORDINGLY HE SUBMITTED THAT THE AO HAS RIGHTLY DETERMINED THE ANNUAL LETTING VALUE U/S 23(1)(A) OF THE ACT. 5. I HEARD THE PARTIES AND PERUSED THE RECORD. I NOTI CE THAT THE ASSESSEE HAS, FOR THE FIRST TIME, RAISED A NEW LEGAL CONTENTION BEFORE THE TRIBUNAL THAT THE ALV OF THE IMPUGNED PROPERTY IS DETERMINABLE U/S 23(1)(C) OF THE ACT. THE ASSESSEE HAS ALSO PLACED RELIANCE ON A CASE LAW REFERRED ABOVE. I NOTICE TH AT THE TAX AUTHORITIES DID NOT HAVE OCCASION TO EXAMINE THE ABOVE SAID CLAIM OF THE ASSESSEE. HENCE, I AM OF THE VIEW THAT THE ABOVE SAID CONTENTION OF THE ASSESSEE REQUIRES EXAMINATION AT THE END OF THE AO, SINCE IT GOES TO THE ROOT OF THE MATTER. ACCOR DINGLY I SET ASIDE THE ORDER PASSED BY LD CIT(A) AND RESTORE ALL THE ISSUES TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE CLAIM OF THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LAW. VASVANI TUST 3 6. IN THE RESULT, THE APPEAL FILED BY T HE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 7.6 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 7 / 6 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI