NEHA NIKHIL GANDHI, MUMBAI V. DCIT CENT. CIR. 6(3), MUMBAI

ITA 2502/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6545 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Assessee Lawyers: RUTURAJ GURJAR
• Section: 143(3); 143(1); 132

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, ITA NOS.2468 & 2469/MUM/2018 ASSESSMENT YEAR: 2013-14 & 2014-15 MRS, RUPALI BHAVESH GANDHI C/O-SKIL HOUSE, 209, BANK STREET CROSS LANE, FORT, MUMBAI-400023 / VS. DCIT, CENTRAL CIRCLE-6(3) 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400021 / ASSESSEE / REVENUE P.A. NO. AEIPG 4028E ITA NO.2502/MUM/2018 ASSESSMENT YEAR: 2013-14 MRS. NEHA NIKHIL GANDHI C/O-SKIL HOUSE, 209, BANK STREET CROSS LANE, FORT, MUMBAI - 400023 / VS. DCIT, CENTRAL CIRCLE-6(3) 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400021 / ASSESSEE / REVENUE P.A. NO.AALPG7324G ITA NOS.2468, 2469 & 2502/ MUM/2018 RUPALI BHAVESH GANDHI & ORS. 2 ' # $% ASSESSEE BY SHRI RUTURAJ GURJAR - AR ' # $ / REVENUE BY SHRI CHAITNYA ANJARIA - DR % DATE OF HEARING 10 /01/2019 $ / DATE OF ORDER: 10 /01/2019 $ % O R D E R THIS BUNCH OF THREE APPEALS IS BY DIFFERENT ASSESS EE AGAINST THE IMPUGNED ORDERS ALL DATED 30/11/2017 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI, UPHOLDING TH E ESTIMATION OF ALV OF RS.6,15,653/- UNDER THE HEAD I NCOME FROM HOUSE PROPERTY IN RESPECT OF EACH ASSESSEES S HARE OF 25% IN SAGAR VILLA IGNORING THE FACT THAT THE PROPER TY WAS CO-OWNED. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI RUTURAJ GURJAR, CONTENDED THAT IN THE CASE OF MR. BHAVESH P. GANDHI (ITA NO.6579, 6581 & 5930/MUM/2016, ORDER DATED 30/07/2017 (ONE OF THE C O- SHARER OF THE PROPERTY), THE TRIBUNAL REMANDED THE ISSUE BACK TO THE FILE OF THE LD. ASSESSING OFFICER WITH CERTAIN DIRECTIONS, THEREFORE, THE PRESENT APPEALS MAY ALSO BE SENT TO THE FILE OF THE LD. ASSESSING OFFICER WITH SIMIL AR ITA NOS.2468, 2469 & 2502/ MUM/2018 RUPALI BHAVESH GANDHI & ORS. 3 DIRECTIONS. ON THE OTHER HAND, THE LD. DR, SHRI CHA ITANYA AJNARIA, DID NOT CONTROVERT THE FACTUAL MATRIX THAT IN THE CASE OF CO-OWNER, THE TRIBUNAL HAS REMANDED THE MAT TER BACK TO THE FILE OF THE LD. ASSESSING OFFICER. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, THE AFORESAID ORDER OF THE TRIBUNAL DATED 30/07/2018 IS REPRODUCED HEREUNDER FOR READY REFERE NCE AND ANALYSIS:- THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINS T THE ORDER OF CIT(A)-54, MUMBAI DATED 08/07/2016 FOR A.Y.2008-09, 2011-12 AND 2012-13, IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE IT ACT. 2. COMMON GRIEVANCE OF ASSESSEE IN BOTH THE YEARS PERTAINS TO ADDITION MADE BY AO UNDER THE HEAD INC OME FROM HOUSE PROPERTY IN RESPECT OF FLAT OF SAGAR VI LLA. 3. GROUND TAKEN BY THE ASSESSEE IN THE A.Y.2008-09 READS AS UNDER:- 1. ON FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION MADE BY THE AO OF RS.4,62,9Q9/- UNDER THE HEAD INCOME FROM HOUSE PROP ERTY IN RESPECT OF THE FLAT AT SAGAR VILLA, WHICH WAS ESTIM ATED BY THE AO. THE CIT(A) FURTHER ERRED IN REJECTING THE APPELLANT 'S HAVING OCCUPIED THE SAME, THE ALV OF THE PROPERTY WAS RS.N IL. WITHOUT PREJUDICE TO THE ABOVE THE ALV ESTIMATED BY THE, AO IN RESPECT OF THE APPELLANT'S SHARE IN SAGAR VILLA IS EXCESSIVE. ITA NOS.2468, 2469 & 2502/ MUM/2018 RUPALI BHAVESH GANDHI & ORS. 4 2. ON FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN REJECTING THE APPELLANT'S PLEA THAT THE ADDITION MADE OF RS.4.62 LAKHS AS STATED IN THE ABOVE GROUND IS BAD IN LAW. 3. THE APPELLANT RESERVES HIS RIGHTS TO ADD TO , ALTER, AMEND, MODIFY OR DELETE ANY OF THE GROUNDS TAKEN UP IN THI S APPEAL. 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. THERE IS MARGINAL DELAY IN FILING APPEALS. AFTER GOING THROUGH THE REASONS FOR DELAY AND THE AFFIDAV IT FILED IN SUPPORT OF IT, WE ARE CONVINCED THAT THERE WAS A RE ASONABLE CAUSE FOR DELAY. IN THE SUBSTANTIAL INTEREST OF JUS TICE, WE CONDONE THE DELAY AND APPEALS ARE BEING HEARD FOR ADJUDICATING ON MERIT. 5. THE FACTS OF THE CASE FOR A.Y.2008-09 ARE THAT T HE ASSESSEE HAD FILED ORIGINAL RETURN ON 18.09.2008 DE CLARING TOTAL INCOME OF RS. 1,37,65,300/-. THE SAME WAS PRO CESSED U/S 143(1) OF THE ACT ON 27.03.2010 ASSESSING TOTAL INCOME AT RS. 1,37,65,300/-. THE ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 08.12.2010 ASSESSING TOTAL INCOME AT RS. 1,37,65,298/-. SUBSEQUENTLY SEARCH & SEIZURE ACTION WAS CARRIED OUT U/S 132 OF THE ACT ON 12.10.2011 ON M/S PIPAVAV DEFENCE. 6. DURING THE COURSE OF ASSESSMENT, THE AO OBSERVED FROM RECORDS, THAT THE ASSESSEE HAS TWO HOUSE PROPE RTIES, ONE BEING FLAT AT BREACH CANDY APARTMENTS TREATED A S SOP AND OTHER AT SAGAR VILLA. NO INCOME FROM HOUSE PROP ERTY AT SAGAR VILLA HAS BEEN DECLARED DURING THE YEAR. THE AO OBSERVED THAT IN THE A.Y. 2007-08, THE HOUSE PROPER TY INCOME OF AFORESAID FLAT WAS ADOPTED AT RS. 4,62,90 9/-, ACCORDINGLY HE REPEATED THE SAME IN THIS ASSESSMENT YEAR AS WELL. 7. BY THE IMPUGNED ORDER CIT(A) CONFIRMED THE ACTIO N OF THE AO AGAINST WHICH ASSESSEE IN FURTHER APPEAL BEFORE US. 8. IT WAS ARGUED BY LEARNED AR THAT AO HAS NOT CONSIDERED JUDICIAL PRONOUNCEMENTS OF THE JURISDICT IONAL HIGH COURT IN CASE OF TIP TOP TYPOGRAPHY 368 ITR 33 0. ITA NOS.2468, 2469 & 2502/ MUM/2018 RUPALI BHAVESH GANDHI & ORS. 5 9. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND THAT ADDITION PERTAINS TO ESTIMATION OF RATEABLE VA LUE IN RESPECT OF THE JOINT PROPERTY AT SAGAR VILLA. THE A SSESSEE ALONG WITH HIS FATHER - MR. PRATAPRAI GANDHI, SISTE R-IN-LAW MRS. NEHA NIKHIL GANDHI & SPOUSE - MRS. RUPALI B. G ANDHI, ARE JOINT OWNERS IN EQUAL PROPORTION IN THE SAID PR OPERTY. THE PROPERTY IN QUESTION WAS FULLY OCCUPIED BY THE ASSESSEE'S FATHER-IN-LAW, AS SELF-OCCUPIED PROPERTY AND THE ASSESSEE WAS NOT LET OUT THE SAME. 10. LEARNED AR PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN CASE OF ANOTHER FAMILY MEMBER IN ITA NO.6582/MUM/2016 AND 6578/MUM/2016 FOR THE VERY SAM E ASSESSMENT YEAR 2010-11 AND 2011-12 ORDER DATED 08/10/2017, WHEREIN UNDER SIMILAR FACTS AND CIRCUMS TANCES, THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FI LE OF THE AO AFTER HAVING THE FOLLOWING OBSERVATION. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PAR TIES AND HAVE NOTED THAT THE AO WHILE FRAMING THE ASSESSMENT ORDE R MADE THE ADDITION UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY ' ON THE BASIS OF ESTIMATION. THE ASSESSING OFFICER HAS NOT MADE ANY INDEPENDENT ENQUIRY BEFORE MAKING THE ADDITION. THE ORDER PASSED BY ASSESSING OFFICER IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 OF THE ACT. THUS, CONSIDERING THE FACTS OF THE CASE AND THE SUBMISSION OF BOTH THE PARTIES, THE GROUND OF A PPEAL RAISED BY ASSESSEE IS RESTORED TO THE FILE OF AO WITH THE DIR ECTION TO PASS THE ORDER AFRESH AFTER CONSIDERING THE DECISION OF JURI SDICTIONAL HIGH COURT IN CASE OF CIT VS. TIP TOP TYPOGRAPHY (SUPRA) . NEEDLESS TO SAY THAT BEFORE PASSING THE ORDER, THE AO SHALL GRA NT OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. AS THE FACTS AND CIRCUMSTANCES DURING THE YEARS UNDER CONSIDERATION ARE SAME, WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR DECIDING AFRESH IN TERMS OF THE DECISION OF THE TRIBUNAL REFERRED ABOVE AS WELL AS THE ORDER OF THE JURISDICTIONAL HIGH COURT IN CASE OF TIP TOP TYPOGRAPHY (SUPRA). ITA NOS.2468, 2469 & 2502/ MUM/2018 RUPALI BHAVESH GANDHI & ORS. 6 12. IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. 2.2. IT IS NOTED THAT IN THE AFORESAID ORDER, THE TRIBUNAL HAS FOLLOWED ANOTHER DECISION DATED 08/10/ 2017, WHEREIN, UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE MATTER WAS REMANDED BACK WITH CERTAIN DIRECTIONS TO THE FI LE OF THE LD. ASSESSING OFFICER. IN VIEW OF THIS FACTUAL MATR IX, THESE FILES ARE ALSO RESTORED BACK TO THE FILE OF THE LD. ASSESSING OFFICER FOR DECIDING AFRESH CONSIDERING THE ORDER F ROM HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF TI P TOP TYPOGRAPHY 368 ITR 330. THUS, THESE APPEALS ARE ALL OWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEALS OF THE ASSESSEES ARE ALLOWED F OR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/01/2019 SD/- (JOGINDER SINGH) '() / VICE PRESIDENT MUMBAI; ' DATED : 10/01/2019 F{X~{T? P.S / #$ ITA NOS.2468, 2469 & 2502/ MUM/2018 RUPALI BHAVESH GANDHI & ORS. 7 $&'*+,-.$-/, / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. ++ ,-%&. / THE CIT, MUMBAI. 4. ++ , / CIT(A)- , MUMBAI 5. /01)#2+%&%#32 / DR, ITAT, MUMBAI 6. 145&/ GUARD FILE. $& / BY ORDER, / (DY./ASSTT. REGISTRAR) / ITAT, MUMBAI