PATEL INDIA P.LTD, MUMBAI V. ITO WD 5(2)(4), MUMBAI

ITA 288/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0989 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 18-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGHDR
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.288/MUM/2016 ASSESSMENT YEAR: 2010-11 M/S PATEL INDIA PVT. LTD. WHITE HOUSE COMPOUND, 91, WALKESHWAR, MUMBAI-400006 / VS. INCOME TAX OFFICER, WARD-5(2)(4), MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO. AAACP3402A !' # / ASSESSEE BY SHRI RAKESH JOSHI $ / REVENUE BY MS. BHARTI SINGH-DR % $& ' # ( / DATE OF HEARING : 01/05/2017 ' # ( / DATE OF PRONOUNCEMENT 03/05/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 19/11/2015 OF THE FIRST APPELLATE AUTHORITY, MUMBAI . ITA NO.288/MUM/2016 M/S PATEL INDIA PVT. LTD. 2 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI RAKESH JOSHI, DID NOT PRESS GROUND NO.3 AND 4. THE LD. DR, MS. BHARTI SINGH, HAD NO OBJECTION TO THE REQUE ST OF THE ASSESSEE, THEREFORE, BOTH THESE GROUNDS, RAISED BY THE ASSESSEE, ARE DISMISSED AS NOT PRESSED. 3. THE ONLY GROUND RAISED BY THE ASSESSEE PERTAINS TO CONFIRMING THE ADDITION OF RS.3,23,79,873/-. THE L D. COUNSEL EXPLAINED THAT THE ASSESSEE IS THE OWNER OF SEVEN P ROPERTIES SINCE 1960 AND ALL THE PROPERTIES ARE TENANTED ONE. ALL THE PROPERTIES WERE CLAIMED TO BE PROTECTED TENANTS. IT WAS CONTENDED THAT IN EARLIER YEARS, THE MATTER WAS EXA MINED BY THE DEPARTMENT AND EVEN TRAVELLED TO THE TRIBUNAL, WHEREIN, THE MATTER WAS RESTORED TO THE FILE OF THE ASSESSIN G OFFICER. OUR ATTENTION WAS INVITED TO PAGE-94 OF THE PAPER B OOK. IT WAS ALSO PLEADED THAT THE DEPARTMENT FOR ASSESSMENT YEA R 2004- 05 AND 2005-06, ON IDENTICAL FACTS, ACCEPTED THE CL AIM OF THE ASSESSEE, WHILE FRAMING THE ASSESSMENT U/S 143(3) O F THE ACT AND NO APPEAL HAS BEEN PREFERRED AGAINST THOSE ORDE RS AND ALSO AGAINST THE ORDER OF THE TRIBUNAL. ON THE OTHE R HAND, LD. DR, CONTENDED THAT IN THE PRESENT ASSESSMENT YEAR, THE ASSESSING OFFICER HAS BROUGHT ON RECORD CERTAIN NEW FACTS, THEREFORE, THE ASSESSEE HAS TO EXPLAIN THE SAME. SO FAR AS, PASSING OF EARLIER ORDERS U/S 143(3) OF THE ACT BY THE ASSESSING OFFICER AND THE REMAINING ORDER, SETTING ASIDE TO T HE FILE OF THE ASSESSING OFFICER WERE NOT DISPUTED BY THE REVENUE. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE LI GHT OF THE ITA NO.288/MUM/2016 M/S PATEL INDIA PVT. LTD. 3 FOREGOING DISCUSSION/ARGUMENTS, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE ORDER OF TH E TRIBUNAL (ITA NO.1037/MU,/2007), ORDER DATED 19/12/2008 FOR READY REFERENCE AND ANALYSIS:- THESE ARE CROSS APPEALS, THE FIRST ONE FILED BY TH E ASSESSEE AND THE SECOND ONE FILED BY THE REVENUE AND ARE DIRECTED AG AINST THE ORDER DATED 12.1206 OF THE CIT(A) CENTRAL-IV, MUMBAI, REL ATING TO ASSESSMENT YEAR 2003-04, FOR THE SAKE OF CONVENIENC E BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER. 2. THE ASSESSEE IN ITS ONLY EFFECTIVE GROUND OF APP EAL HAS CHALLENGED THE ORDER OF THE CIT(A) IN DISALLOWING A N AMOUNT OF RS.7,47,365/- ON ACCOUNT OF SALARY. SIMILARLY, THE REVENUE IN THE GROUNDS HAS CHALLENGED THE ORDER OF THE CIT(A) IN D IRECTING THE ASSESSING OFFICER TO RE-COMPUTE THE INCOME OF THE B LOCK PERIOD AFTER DETERMINING THE STANDARD RENT OF THE PROPERTY OF TH E ASSESSEE UNDER PROVISIONS OF BOMBAY, RENT CONTROL ACT, 1997. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT AS FAR AS THE GROUND OF THE ASSESSEE IS CONCERNED, THE TRIBUNAL AT PARA 18 OF THE ORDER VIDE ITA NO.6918/M UM/2002 AND ITA NO.115/MUM/2003, ORDER DATED 17/03/2006 FOR THE ASS ESSMENT YEAR 1999-2000 HAS DISCUSSED THE ISSUE AND HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. AS REGARDS, GROUNDS RAISED BY THE REVENUE IN THE APPEAL IS CONCERNED, THE LEARNED COU NSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO PARA-9 OF THE SAID ORDER AND SUBMITTED THAT THE TRIBUNAL HAS ALSO RESTORED T HE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT THE STANDARD RENT MAY BE DETERMINED AS PER PROVISIONS OF BOMBAY RENT CONTROL ACT, 1997, AND AFTER TAKING INTO ACCOUNT CASES REFERRED BY THE TRI BUNAL IN THE SAID ORDER. HE SUBMITTED THAT THE CO-ORDINATE BENCHES OF THE TRIBUNAL IN SUBSEQUENT YEARS HAVE FOLLOWED THE ORDER OF THE TRI BUNAL FOR THE ASSESSMENT YEAR 1999-2000. HE ACCORDINGLY, SUBMITTE D THAT BOTH THE APPEALS SHOULD BE RESTORED TO THE FILE OF THE ASSES SING OFFICER TO DECIDE ISSUE AFRESH IN THE LIGHT OF THE DIRECTIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1999-2000. 4. THE LEARNED DR ON THE OTHER HAND FAIRLY CONCEDED THE FACTS AS STATED BY THE LD. COUNSEL FOR THE ASSESSEE. ITA NO.288/MUM/2016 M/S PATEL INDIA PVT. LTD. 4 5. AFTER HEARING BOTH THE SIDES, WE FIND SIMILAR IS UES HAVE BEEN CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE F OR ASSESSMENT YEAR 1999-2000. AS REGARDS THE APPEAL OF THE ASSESS EE IS CONCERNED, WE FIND THE TRIBUNAL VIDE ITA NO.6918/MUM/2002 AND ITA NO.115/MUM/2003 ORDER DATED 17/03/2006 AT PARA 18 O F THE ORDER HAS OBSERVED AS UNDER: 18 WE HAVE HEARD THE RIVAL SUBMISSIONS. WE ARE OF THE VIEW THAT NATURE OF THESE EXPENSES ARE NOT ELABORATED. IT IS ALSO NOT KNOWN WHETHER ENTIRE EXPENDITURE WAS INCURRED AGAINST EARNI NG COMPENSATION INCOME. THE ASSESSEE HAS ALSO SHOWN INCOM E FROM HOUSE PROPERTY. A PART OF SUCH EXPENSES SEEMS TO HAVE BEEN INCURRED ON EARNING HOUSE PROPERTY INCOME. WE THEREFORE, RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AS TO WHETHE R ENTIRE EXPENDITURE WAS INCURRED FOR EARNING COMPENSATION INCOME. IF IT IS SO IT WOULD BE ALLOWED U/S 56. IF PART OF THE EXPENDITURE IS INCURR ED O EARNING HOUSE PROPERTY INCOME THAN IT WOULD BE SUITABLY BIFURCATE D AND THE EXPENDITURE RELATABLE TO EARNING HOUSE PROPERTY INCO ME SHOULD DEALT WITH UNDER SEC. 22 TO 27. THE OTHER PART PERTAINING TO COMPENSATION INCOME SHOULD BE ALLOWED U/S 53. THE ISSUE IS DECIDED ACCORDINGLY. 6. SIMILARLY, AS FOR AS THE GROUNDS OF APPEAL OF T HE REVENUE IS CONCERNED, WE FIND THE TRIBUNAL TOWARDS THE END OF PARA 9 OF THE SAID ORDER HAS OBSERVED AS UNDER:- THE ASSESSING OFFICER WILL WORK OUT THE STANDARD REN T BY ASSUMING HIMSELF AS A COURT UNDER BOMBAY RENT CONTROL ACT AND TAKE INTO ACCOUNT FACTORS AS LAID DOWN IN SHREYAS K. DOSHIS CA SE (SUPRA) AND LAULS CASE (SUPRA), WHILE DETERMINING STANDARD RENT. WITH ABOVE OBSERVATIONS WE DISMISS THE APPEAL OF THE REVENU E. 7. WE FIND, THE CO-ORDINATE BENCHES OF THE TRIBUNAL , FOLLOWING THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 1999-2000 HAVE RESTORED THE MATTERS BACK TO THE FILE OF THE ASSESSING OFFICER F OR DECIDING THE ISSUES AFRESH IN THE LIGHT OF THE DIRECTION GIVEN BY THE T RIBUNAL. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR VARIOUS ASSESSMENT YEARS RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUES AFRESH IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1999-2000. 8. IN THE RESULT, APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO.288/MUM/2016 M/S PATEL INDIA PVT. LTD. 5 3.2. WE FIND THAT IN THE AFORESAID ORDER, ON IDENT ICAL FACTS, THE TRIBUNAL REMANDED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER IN THE LIGHT OF DIRECTION OF THE TRIBUNAL IN THE EARLIER YEARS. ON THE SAME REASONING AND FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL, ON THE PRINCIPLE OF PARITY, WE RESTORE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER. THE L D. ASSESSING OFFICER IS ALSO DIRECTED TO EXAMINE WHETHER THE FAC TS ARE IDENTICAL OR THERE IS DIFFERENCE IN FACTS. AFTER PR OVIDING DUE OPPORTUNITY OF BEING HEARD, THE LD. ASSESSING OFFIC ER IS DIRECTED TO DECIDE AFRESH IN ACCORDANCE WITH LAW. T HUS, GROUND NO. 1 & 2 RAISED BY THE ASSESSEE ARE RESTORED TO TH E FILE OF THE ASSESSING OFFICER AND ALLOWED FOR STATISTICAL PURPO SES. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD , MAY, 2017. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 03/05/2017 F{X~{T? P.S/. .. , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 % 4# , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 % 4# / CIT(A)- , MUMBAI 5. 6$7 # , 3 ./( . , % & / DR, ITAT, MUMBAI 6. 8! 9& / GUARD FILE. ITA NO.288/MUM/2016 M/S PATEL INDIA PVT. LTD. 6 / BY ORDER, 26/# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI