DCIT CEN CIR 23, MUMBAI V. RAJENDRA BAROT, MUMBAI

ITA 2961/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101280 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2015
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 02-02-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-04-2011
• Court: TRIBUNAL
• Department Lawyers: MRS RUPENDER BRAR
• Keywords: Rule of consistency; Fair market value; Valuation report; Deemed dividend; Notional interest
• Section: 143(3); 153A; 14A; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI LALIT KUMAR, JUDICIAL MEMBER I.T.A. NO. 2961/M/2011 (AY:2002 - 2003 ) I.T.A. NO. 2962/M/2011 (AY:2003 - 2004 ) I.T.A. NO. 2963/M/2011 (AY:2004 - 2005 ) I.T.A. NO. 2964/M/2011 (AY:2005 - 2006 ) I.T.A. NO. 2966/M/2011 (AY:2007 - 2008 ) I.T.A. NO. 2967/M/2011 (AY:2008 - 2009 ) DCIT, CENTRAL CIRCLE 23, R.NO. 409, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 20. / VS. SHRI RAJENDRA BAROT, OPP. HOTEL LEELA, AND HERI KURLA ROAD, ANDHERI (E), MUMBAI 400 059. ./ PAN : AENPB9154P ( / APPELLANT) .. ( / RESPONDENT ) I.T.A. NO. 2884/M/2011 (AY:2005 - 2006 ) SHRI RAJENDRA BAROT, OPP. HOTEL LEELA, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI 400 059. / VS. DCIT, CENTRAL CIRCLE 23, R.NO. 409, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 20. ./ PAN : AENPB9154P ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI VIJAY MEHTA & ANUJ KISHNADWALA / REVENUE BY : MRS RUPENDER BRAR, CIT - DR / DATE OF HEARING : 27 .08.2015 / DATE OF PRONOUNCEMENT : 12.10 .2015 / O R D E R PER BENCH : THERE ARE 7 APPEALS UNDER CONSIDERATION INVOLVING THE AYS 2002 - 03 TO 2005 - 06, 2007 - 08 AND 2008 - 09. OUT OF 7 APPEALS 6 APPEALS ARE FILED BY THE REVENUE AND ONE APPEAL ITA NO.2884/M/2011 IS FILED BY THE ASSESSEE . SINCE, THE 2 ISSUES RAISED IN ALL THESE APPEA LS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED - OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE FILED A GROUND UNDER RULE 27 OF THE APPELLATE TRIBUNAL RULES, 1963, QUESTIONING THE VALIDITY OF THE ADDITIONS MADE U/S 143(3) R.W.S 153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THE SAID LEGAL GRO UND RAISED BY THE ASSESSEE READ AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN AFFIRMING THE ACTION OF THE ASSESSING OFFICER IN CONFIRMING THE ADDITIONS MADE U/S 143(3) R.W.S 153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH QUA THE ADDITIONS, AND HENCE THE ADDITIONS MADE BY THE ASSESSING OFFICER ARE BAD IN LAW. 3. THIS BEING THE LEGAL GROUND, IT NEEDS TO BE ADJUDICATED FIRST SO AS TO DECIDING THE APPEALS ON MERITS. FOR THE PURPOSE OF ADJUDICATION OF THE ABOVE LEGAL GROUND, WE SHALL TAKE THE REVENUES APPEAL ITA NO.2961/M/2011 AS A LEAD APPEAL AND THE ADJUDICATION IS GIVEN IN THE SUCCEEDING PARAS. ITA NO.2961/M/2011 (AY 2002 - 2003) (BY REVENUE) 4. THIS APPEAL FILED BY THE REVENUE ON 15.4.2011 IS AGAINST THE ORDER OF THE CIT (A) - 40, MUMBAI DATED 25.1.2011 FOR THE AY 2002 - 2003. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1.(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) FAILED TO APPRECIATE THAT THE ANNUAL VALUE HAS OFFERED BY THE ASSESSEE WAS GROSSLY UNDERST ATED AND THE ASSESSING OFFICER AS JUSTIFIED IN DETERMINING FAIR MARKET V ALUE IN TERMS OF SECTION 23(1)(A ) BY ADDING NOTIONAL INTEREST @ 7% ON INTEREST - FREE DEPOSIT OF RS. 1,20,50,000/ - . (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION MADE AT RS. 8,43,500/ - BEING NOTIONAL INTEREST WHICH COULD FORM A PART OF ANNUAL LETTING VALUE OF T HE PROPERTY IN TERMS OF SECTION 23(1)(A) OF THE ACT. 5. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND THE MAIN SOURCE OF INCOME OF THE ASSESSEE IS INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. A SEARCH AN D SEIZURE ACTION WAS CONDUCTED U/S 132 OF THE ACT ON 19.7.2007 AT THE PREMISES OF BAROT GROUP OF CASES UNDER WHICH THE ASSESSEE WAS ALSO COVERED. A NOTICE U/S 153A OF THE ACT WAS ISSUED ON THE ASSESSEE 3 ON 27.2.2008, ASSESSEE FILED THE RETURN OF INCOME FOR THE AYS 2002 - 03 TO AY 2007 - 08 DECLARING THE TOTAL INCOME OF RS. 11,36,360/ (AY 2002 - 03); RS. 20,20,360/ - (AY 2003 - 04); RS. 14,67,902/ - (AY 2004 - 05); RS. 19,84,443/ - (AY 2005 - 06); RS. 17,41,160/ - (AY 2006 - 07) AND RS. 24,57,033/ - (AY 2007 - 08). AO COMPLETED THE ASSESSMENT U/S 153A R.W.S 143(3) OF THE ACT AND DETERMINED THE ASSESSED INCOME OF RS. 17,22,450/ - ; RS. 26,17,360/ - ; RS. 20,65,350/ - ; RS. 1,75,81,890/ - ; RS. 2,16,43,950/ - ; RS. 30,54,480/ - FOR THE AYS 2002 - 03 TO 2007 - 08 RESPECTIVELY AND RS. 58,23,000/ - AGAINST THE RETURNED INCOME OF RS. 22,85,547/ - FOR THE AY 2008 - 2009. DURING THE ASSESSMENT PROCEEDINGS, AO NOTICED THAT THE ASSESSEE HAD GIVEN PROPERTY ON RENT AND CHARGED INTEREST FREE REFUNDABLE DEPOSIT OF RS. 1,20,50,000/ - . IN THIS REGARD, AO IS OF T HE OPINION THAT THE SAID AMOUNT WAS RECEIVED IN LIEU OF LETTING OUT OF THE PROPERTY AND THE SAME HAS ADVERSE IMPACT ON THE RECEIPT OF RENT. IN THAT VIEW OF THE MATTER, AO OPINED THAT CERTAIN PERCENTAGE OF INTEREST FREE DEPOSIT HAS TO BE CONSIDERED WHILE C OMPUTING ALV OF THE PROPERTY GIVEN ON RENT. ACCORDINGLY, ALV OF THE LET OUT PROPERTY WAS INCREASED BY RS. 8,43,500/ - IE 7% OF THE INTEREST FREE DEPOSIT OF RS. 1,20,50,000/ - . AGGRIEVED ASSESSEE FILED THE APPEALS BEFORE THE FIRST APPELLATE AUTHORITY QUESTI ONING THE ABOVE DECISION OF THE AO. FURTHER, ASSESSEE ALSO RAISED A LEGAL GROUND BEFORE THE CIT (A) CONTENDING THAT THE ADDITIONS MADE BY THE AO WITHOUT ANY INCRIMINATING MATERIAL ARE NOT SUSTAINABLE IN LAW. 6. DURING THE PROCEEDINGS BEFORE THE FIRST APPE LLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) GRANTED RELIEF TO THE ASSESSEE ON MERITS BY PASSING A CONSOLIDATED ORDER FOR THE AYS 2002 - 03 TO 2008 - 09, DATED 28.1.2010. IN THE SAID ORDER, CIT (A) DISMISSED THE SAID LEGAL GROUN D BY HOLDING THAT AO HAS A RIGHT TO LOOK INTO OTHER MATERIALS ON RECORD AND MAKE ADDITIONS EVEN IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WHILE DECIDING THE APPEALS ON MERITS, CIT (A) BY HOLDING THAT THE AS PER THE RE QUIREMENT OF SECTION 23(1)(A) OF THE ACT, AO HAS NOT MADE ANY ATTEMPT TO DETERMINE THE FAIR MARKET VALUE FOR COMPARING THE SAME WITH THAT OF THE ACTUAL RENT. HE FURTHER HELD THAT AO CANNOT ENHANCE THE ACTUAL RENT RECEIVED BY MAKING ADDITION ON ACCOUNT OF NOTIONAL INTEREST. CIT (A) ALSO HELD THAT THE RENT CAN EXCEED THE MUNICIPAL RATEABLE VALUE IF THE AO 4 BRING ON RECORD THE COMPARABLE INSTANCES OF EXCESSIVE RENT BEING RECEIVED BY OTHER TENANTS IN THE SAME LOCALITY. CIT (A) IS OF THE OPINION THAT THE RENT RECEIVED OR RECEIVABLE CANNOT BE SUBSTITUTED WITH A SUM WHICH HAS A BEARING WITH THE INTEREST FREE DEPOSIT RECEIVED BY THE ASSESSEE. WHILE COMING TO THE ABOVE CONCLUSION, CIT (A) RELIED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF BAKER TECHNICAL SERVIC ES (P) LTD 126 TTJ 455 (MUM) (TM); THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. J.K. INVESTORS (248 ITR 723) AND OTHERS. AGGRIEVED WITH THE SAID DECISION OF THE CIT (A), REVENUE IS IN APPEAL FOR THE AYS 2002 - 03 TO 2008 - 09. 7. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE NARRATED THE BRIEF FACTS OF THE CASE. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT ALL APPEALS UNDER CONSIDERATION HAVE A LEGAL ISSUE AND THE SAME IS SUMMARIZED AS AND WHEN THE ASSESSMENTS INVOLVED ARE NON - ABATED ASSESSMENT (EITHER REGULAR ASSESSMENTS ARE COMPLETED U/S 143(3) AND THE QUANTUM PROCEEDINGS ARE NOT PENDING OR THE DUE DATE FOR ISSUE OF NOTICE US 143(2) HAS EXPIRED, THE ADDITIONS, IF ANY, IN THE SEARCH ASSESSMENT CAN B E MADE BASING ON ANY INCRIMINATING MATERIAL SEIZED U/S 132 OF THE ACT AND FORWARDED TO THE CONCERNED AO AS PER THE PROCEDURE LAID DOWN IN THE ACT. DRAWING OUR ATTENTION TO EACH OF THE ASSESSMENT ORDER AND EACH OF THE ADDIT IONS MADE BY THE AO IN ALL THE AY S UNDER CONSIDERATION , LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THERE IS NO REFERENCE TO THE SEIZED MATERIAL IN ANY OF THE ADDIT IONS MADE BY THE AO IN ALL THE 7 AYS. FURTHER, HE MENTIONED THAT THE ADDITIONS MADE WERE ACTUALLY IN THE NATURE OF ROUTINE ADDITIONS WHICH ARE MADE UNDER REGULAR ASSESSMENT. LD COUNSEL FOR THE ASSESSEE ALSO ARGUED THAT SUCH ADDITIONS ARE UNSUSTAINABLE IN LAW. IN SUPPORT OF HIS CONTENTION , LD COUNSEL FOR THE ASSESSEE FILED WRITTEN SUBMISSIONS AND THE RELEVANT PORTIONS FROM THE SAID WRITTEN SUBMISSIONS ARE EXTRACTED AS UNDER: IT IS SUBMITTED THAT, AS STATED ABOVE, THE ASSESSEE HAD RAISED A LEGAL GROUND BEFORE THE CIT(A) BUT THE SAME WAS DECIDED AGAINST THE ASSESSEE. HOWEVER, THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE DELETED ON MERITS BY THE LEARNED CIT(A) EXCEPT FOR A.Y. 2005 - 06 WHEREIN THE ADDITION OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT WAS CONFIRMED BY THE CIT(A) AGAINST WHICH ASSESSEE HAS FILED AN APPEAL BEFORE THE HON'BLE TRIBUNAL . IT IS SUBMITTED THAT THE ASS ESSEE HAS NOT FILED ANY APPEAL BEFORE THE HON'BLE TRIBUNAL SINCE THE ADDITIONS WERE DELETED ON MERITS EXCEPT FOR A.Y. 2005 - 06. IT IS HUMBLY SUBMITTED THAT SINCE THE ADDITIONS HAVE BEEN DELETED, THE ASSESSEE HAS A RIGHT TO SUPPORT THE ORDER OF CIT(A) ON AN Y GROUND WHICH HAS BEEN DECIDED AGAINST HIM UNDER RULE 27 OF THE INCOME - TAX APPELLATE RULES, 1963. AN APPLICATION UNDER RULE 27 FOR A.Y.'S 2002 - 03 TO 2004 - 05 HAS BEEN FILED BEFORE YOUR 5 HONOURS DURING THE COURSE OF HEARING IN WHICH THE ASSESSEE HAS RAISED L EGAL GROUND AS A RESPONDENT UNDER RULE 27 CHALLENGING THE ADDITIONS MADE U/ S 143(3) R . W.S 153A OF THE ACT SINCE THE SAME WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. SIMILARLY FOR A.Y. 2005 - 06 AN ADDITIONAL GROUND HAS BEEN FILED BEFORE YOUR HONOURS CHALLENGING THE ADDITIONS MADE U/S 143(3) R.W.S 153A OF TH E ACT SINCE THE SAME WERE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IT IS SUBMITTED THAT SEARCH TOOK PLACE ON THE ASSESSEE ON 19.07 . 2007. THE ASSESSMENT YEARS UNDER CONSIDERATION BEFORE YOUR HONOURS ARE A.Y.'S 2002 - 03 TO 2005 - 06 . IT IS SUBMITTED THAT FOR ALL THE ASSESSMENT YEARS THE ADDITION MADE BY THE ASSESSING OFFICER IS ON ACCOUNT OF ADDING NOTIONAL INTEREST ON INTEREST FREE DEPOSIT TO AL V AS SHOWN BY THE ASSESSEE. IN A.Y. 2005 - 06, THE ASSESSING OFFICER HAS MADE ADDIT ION ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT WHICH WAS CONFIRMED BY THE LEARNED CIT(A) AGAINST WHICH ALSO THE ASSESSEE HAS FILED AN APPEAL BEFORE THE HON'BLE TRIBUNAL. IT IS SUBMITTED THAT AS PER THE DECISION OF THE HON'BLE BOMBAY HIGH COUR T IN THE CASE OF CIT V. ALL CARGO GLOBAL LOGISTIC (374 ITR 645) ONLY THE ASSESSMENTS PENDING ON THE DATE OF SEARCH ABATE . IN OTHER WORDS, THE ASSESSMENTS NOT PENDING ON THE DATE OF INITIATION SHALL NOT ABATE AND THE ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT SHALL STAND. IT IS SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 153A OF THE ACT, THE ASSESSING OFFICER IS DUTY BOUND TO ISSUE NOTICE U/ S 153A AND ACCORDINGLY PASS AN ASSESSMENT ORDER AS PER THE PROVISIONS OF S. 153A OF THE ACT . HOWEVER, IN CASE OF ASSESSMENT YEARS WHICH ARE NOT ABATED I.E . ASSESSMENT YEARS FOR WHICH ASSESSMENT ORDER HAS BEEN PREVIOUSLY PASS ED OR TIME LIMIT FOR ISSUING NOTICE U/S 143(2) OF THE ACT HAS EXPIRED, ADDITION, IF AN Y , CAN BE MADE ONLY ON ACCOUNT OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH . THE RELEVANT POSITION OF NON - ABATED ASSESSMENT YEARS IS DEMONSTRATED VIDE CHA RT BELOW: TRIBUNAL IN THE CASE OF SHRI GOVIND AGARWAL V. ACIT BEING ITA NO: 3389/MUM/2011 DATED 10.01.2014 (COPY ALREADY ON RECORD) WHEREIN THE HON'BLE TRIBUNAL HELD THAT IN CASE OF NON - ABATED YEARS, ADDITION CAN ONLY BE MADE WITH RESPECT TO SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH . WHILE ARRIVING AT THIS CONCLUSION, THE HON'BLE TRIBUNAL HAS RELIED UPON THE ORDER OF THE 6 HON'BLE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGISTICS V . ADDL . CIT 137 ITD 287(MUM)(SB) WHICH HAS SINCE BEEN UPHELD BY THE HON'BLE BOMBAY HIGH COURT REFERRED ABOVE. HENCE, AS PER THE DECISION OF THE HON'BLE BOMBAY HIGH COURT AND THE ORDER OF THE HON'BLE TRIBUNAL, NO ADDITION CAN BE MADE ON ACCOUNT OF NOTIONAL INTEREST AND DEEMED DIVIDEND SINCE NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE COURSE OF SEARCH. IN VIEW OF THE ABOVE, IT IS HUMBLY SUBMITTED THAT ON THE BASIS OF THIS LEGAL PROPOSITIONS, THE ADDITIONS MADE BY THE ASSESSING OFFICER ARE BAD IN LAW AND HENCE ARE TO BE DELETED. IT IS SUBMITTED THAT THE DEPARTMENT HAS FILED AN APPEAL BEFORE THE HON ' BLE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) DELETING THE ADDITION ON ACCOUNT OF NOTIONAL INTEREST ON INTEREST FREE DEPOSIT FROM A.Y . S 2002 - 03 TO 2008 - 09. HOWEVER, IN VIEW OF THE LEGAL POSITION, AS DISCUSSED AB OVE, THE SAID GROUND RAISED BY THE DEPARTMENT IN RESPECT OF A.Y . 2002 - 03 TO 2005 - 06 WOULD BECOME ACADEMIC . 8 . ON THE OTHER HAND, LD DR RELIED ON THE ORDER OF THE AO AND THE CIT (A). FURTHER, ON THE LEGAL PROPOSITIONS, LD DR HAS NOTHING TO CONTROVERT E XCEPT RELYING ON THE DECISIONS OF THE REVENUE AUTHORITIES. 9 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE TRIBUNAL IN THE CASE OF SHRI GOVIND AGARWAL V. ACIT BEING ITA NO: 3389/ M UM / 2011 DATED 10.01.2014 (SUPRA) ; ALL CARGO GLOBAL LOGISTICS V . ADDL . CIT (SUPRA ); SKS ISPAT AND POWER LIMITED VS. DCIT CC 45 (ITA 8746/M/12 AND ITA 8747/M/12) (SUPRA) AS WELL AS THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASES OF CIT V. ALL CARGO GLOBAL LOGISTIC (374 ITR 645) (SUPRA), COPIES OF WHICH ARE PLACED ON RECORD. ON PERUSAL OF THE SAID DECISIONS, WE FIND THEY ARE RELEVANT FOR THE PROPOSITION THAT W HEN NO ASSESSMENT HAS ABATED, THE QUESTION OF MAKING ANY ADDITION OR MAKING DISALLOWANCE WHICH ARE NOT BASED ON ONLY MATERIAL FOUND DURING THE SEARCH IS BAD IN LAW . IN THIS REGARD, WE FIND IT RELEVANT TO EXTRACT THE RELEVANT PARAS FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI GOVIND AGARWAL (SUPRA) AND THE SAME IS AS FOLLOWS: 12. W E HAVE HEARD THE PARTIES AND THEIR DIVERGENT STANDS ON THE LEGAL ISSUE AND THE VALIDITY OF THE INSTANT ASSESSMENT/REASSESSMENT WITH THE ROUTINE ADDITIONS U/S 68 AND SECTION 14A OF THE ACT BASED ON THE ACCOUNTED TRANSACTIONS. THE INSTANT CASE FOR THE AY 200 2 - 03 DEALS WITH THE CASE OF DISTURBING THE COMPLETED ASSESSMENT. EARLIER THE ASSESSMENT WAS COMPLETED U/S 143(1) OF THE ACT. COMPLETENESS OF THE SUMMARY ASSESSMENT IS CONSIDERED AND HELD IN FAVOUR OF THE ASSESSEE VIDE MANY JUDGMENTS CITED ABOVE. IN THE ASSESSMENT U/S 153A, THE AO MADE (I) ADDITION U/S 68 ON ACCOUNT OF ARTIFICIALLY INFLATED INVESTMENT IN HOUSE DULY DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE RS.31,33,070/ - ; AND (II) DISALLOWANCE U/S 14A: RS. 23,31,469/ - . ADMITTEDLY, THERE IS NO INCRIM INATING MATERIAL BEFORE THE AO TO SUPPORT THE ABOVE ADDITIONS. THE VALUATION REPORT, WHICH IS GARNERED BY THE AUTHORITIES CONSTITUTES MERE ESTIMATES AND THE PROVISIONS OF SECTION 132 IS NOT REQUIRED TO OBTAIN SUCH REPORT FROM THE DVO. AS SUCH, FOR MAKING A FORESAID ADDITIONS OF RS 31,33,070/ - , AO HAS NOT USED EVEN THE SAID VALUATION REPORT AND THE AO DISALLOWED WHAT IS REPORTED IN THE BOOKS. SIMILAR IS THE CASE WITH THE ADDITIONS U/S 14A OF THE ACT. THEREFORE, UNDISPUTEDLY, THE 7 IMPUGNED QUANTUM ADDITIONS ARE MADE MERELY BASED ON THE ENTRIES IN THE ACCOUNTED BOOKS AND CERTAINLY NOT BASED ON EITHER THE UNACCOUNTED BOOKS OF ACCOUNTS OF THE ASSESSEE OR BOOKS NOT PRODUCED TO THE AO EARLIER OR THE INCRIMINATING MATERIAL GATHERED BY THE INVESTIGATION WING OF THE REV ENUE. CONSIDERING THE LEGAL PROPOSITIONS PLACE BEFORE US BY THE ASSESSEES COUNSEL, WE ARE OF THE OPINION, SUCH ASSESSMENTS OR ADDITIONS ARE UNSUSTAINABLE IN LAW. 13. FOR THE SAKE COMPLETENESS OF THE ASSESSEE, WE INSERT HERE SOME OF THE EXTRACTS FROM RELE VANT JUDGMENTS AND THEY ARE: A. [2013 36 TAXMANN.COM 523 (RAJASTHAN) IN THE CASE OF JAI STEEL (INDIA) VS. ACIT - FROM HELD PORTION: .THE REQUIREMENT OF ASSESSMENT OR REASSESSMENT UNDER THE SAID SECTION HAS TO BE READ IN THE CONTEXT OF SECTIONS 132 OR 132A, INASMUCH AS, IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENTS DOES NOT ARISE , WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF THE ABATED ASSESSMENT UNDER SECOND PROVISO WHICH IS REQUIRED TO BE ASSESSED. ....... ....... PARA 26 OF THE JUDGMENT: THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AN D NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY S UPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. B. [2012] 28 TAXMANN.COM 328 (MUMBAI TRIB.) IN THE CASE OF GURI NDER SINGH BAVA VS. DCIT . WHETHER SINCE ASSESSMENT UNDER SECTION 153A WAS PASSED BY ASSESSING OFFICER ON BASIS OF MATERIAL AVAILABLE IN RETURN OF INCOME AND THERE WAS NO REFERENCE TO ANY INCRIMINATING MATERIAL FOUND DURING SEARCH AND SINCE NO ASSESSMENT WAS ABATED, ASSESSMENT UNDE R SECTION 153A WAS TO BE QUASHED BEING MADE WITHOUT JURISDICTION AVAILABLE UNDER SECTION 153A - HELD, YES [PARA 6.2] [IN FAVOUR OF ASSESSEE] PARA 6.1 OF THE ORDER: THE SPECIAL BENCH IN THE CASE OF ALCARGO GLOBAL LOGISTICS LTD. ( SUPRA ), HAS HELD THAT PROVI SIONS OF SECTION 153A COME INTO OPERATION IF A SEARCH OR REQUISITION IS INITIATED AFTER 31.5.2003 AND ON SATISFACTION OF THIS CONDITION, THE AO IS UNDER OBLIGATION TO ISSUE NOTICE TO THE PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOME FOR SIX YEARS IM MEDIATELY PRECEDING THE YEAR OF SEARCH. THE SPECIAL BENCH FURTHER HELD THAT IN CASE ASSESSMENT HAS ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION UNDER SECTION 153A FOR WHICH ASSESSMENT SHALL BE MADE FOR EACH ASSESSMENT YEAR SEPAR ATELY. THUS IN CASE WHERE ASSESSMENT HAS ABATED THE AO CAN MAKE ADDITIONS IN THE ASSESSMENT, EVEN IF NO INCRIMINATING MATERIAL HAS BEEN FOUND. BUT IN OTHER CASES THE SPECIAL BENCH HELD THAT THE ASSESSMENT UNDER SECTION 153A CAN BE MADE ON THE BASIS OF INCR IMINATING MATERIAL WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS BOOKS OF ACCOUNT AND OTHER DOCUMENTS FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND UNDISCLOSED INCOME OR PROPERTY DISCLOSED DURING THE COURSE OF SEARCH. IN THE PRESENT CASE, THE ASSESSMENT HAD BEEN COMPLETED UNDER SUMMARY SCHEME UNDER SECTION 143(1) AND TIME LIMIT FOR ISSUE OF NOTICE UNDER SECTION 143(2) HAD EXPIRED ON THE DATE OF SEARCH. THEREFORE, THERE WAS NO ASSESSMENT PENDING IN THIS CASE AND IN SUCH A CASE THERE WAS NO QUESTION OF ABATEMENT. THEREFORE, ADDITION COULD BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. B. ALL CARGO GLOBAL LOGISTICS LTD. V. DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 44 [2012] 23 TAXMANN.COM 103 (MUM.) (SB) 8 PARA 58 OF SB DECISIONS: THUS, QUESTION NO.1 BEFORE US IS ANSWERED AS UNDER : ( A ) IN ASSESSMENTS THAT ARE ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY ; ( B ) IN OTHER CASES , IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL , WHICH IN THE CONTEXT OF RELEVANT PROV ISIONS MEANS - (I) BOOKS OF ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT, AND (II) UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. 14. THUS, IN CASE OF THE COMPLETED ASSES SMENTS EITHER U/S 143(1) OR 143(3), THE ABOVE EXTRACTS ARE UNIFORM IN ADVOCATING AGAINST MAKING ADDITIONS IN ROUTINE MANNER IN THE ASSESSMENTS MADE U/S 153A OF THE ACT WHEN THERE IS NO INCRIMINATING MATERIAL GATHERED IN THE SEARCH ACTION. STATUTORY NOTICE U/S 153A OF THE ACT CAN ALSO BE ISSUED TO REITERATE THE RETURNED INCOME OR FOR MAKING ADDITIONS BASED ON THE INCRIMINATING MATERIAL OR UNPRODUCED BOOKS OF ACCOUNT. OTHERWISE, ADDITIONS MADE IN ROUTINE MATTER AS IN THE PRESENT APPEAL ARE NOT SUSTAINABLE. FURTHER, FOR THE SAKE COMPLETENESS OF THE ORDER, WE HAVE PERUSED THE ORDERS/JUDGMENTS RELIED UPON BY LD DR FOR THE REVENUE AND FOUND THEY ARE D ISTINGUISHABLE ON FACTS FOR ONE REASON OR OTHER. TO START WITH, WE HAVE PERUSED THE JUDGMENT OF HONBLE HONBLE DE LHI HIGH COURT IN THE CASE OF MADUGULA VENU (SUPRA) AND FIND THAT, THOUGH EXPLAINED THE PROVISIONS IN PLAIN LANGUAGE, IT DOES NOT DEALT WITH THE RELEVANCE OR FACTUM OF INCRIMINATING MATERIAL. FURTHER, THE JUDGMENT OF ANDHRA PRADESH HIGH COURT IN THE CASE O F GOPAL LAL BHADRUKA (SUPRA) IS NOT ON THE NOTICES ISSUED U/S 153A OF THE ACT AND THE SAME IS PRONOUNCED IN THE CONTEXT OF THE NOTICE U/S 153C OF THE ACT. FURTHER, ALSO, THE COORDINATE BENCH DECISION IN THE CASE OF SCOPE (P) LTD (SUPRA) HAS GRANTED RELIEF TO THE ASSESSEE THOUGH THE NOTICE ISSUED U/S 153A OF THE ACT WAS UPHELD. HOWEVER, THIS ORDER HAS NOT CONSIDERED THE THEN EXISTING DECISION OF THE COORDINATE BENCH DECISION IN THE CASE OF PRATIBHA INDUSTRIES LTD (SUPRA) WHICH IS RELEVANT FOR THE PROPOSITI ON THAT THE COMPLETED ASSESSMENT MAY NOT BE DISTURBED IN THE ABSENCE OF ANY INCRIMINATING MATERIAL SPECIFIC TO THE ASSESSEE. IN FACT, ALL THESE JUDGMENTS TAKE SPIRIT FROM THE SPECIAL BENCH DECISION IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD (SUPRA), WH ICH IS RELEVANT FOR THE PROPOSITION THAT THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL SUCH AS BOOKS OF ACCOUNTS, OTHER DOCUMENTS FOUND IN THE SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF THE SEARCH. 15. ....... 16. IN THESE CIRCUMSTANCES, WE HAVE NO DOUBT ABOUT THE ABSENCE OF ANY SEIZED MATERIAL WHICH ARE INCRIMINATING IN NATURE TO BACK THE ADDITIONS U/S 68 OR 14A OF THE ACT MADE IN THE ASSESSMENT MADE U/S 153A OF THE ACT FOR THE AY UNDER CONSIDERATION. REGARDING THE DVOS REPORT GATHERED DURING THE SEARCH ACTION, WE FIND THAT THE REPORT SUFFERS FROM CERTAIN DEFICIENCIES QUA COST OF CONSTRUCTION OF RESIDENTIAL PROPERTY AND THE LAND OBTAINED THERETO . THE SAID REPORT CONSTITUTES AN OPINION OF THE THIRD PARTY WHICH CANNOT BE USED BY THE AO FOR MAKING ADDITIONS AND SUCH ADDITIONS, IF ANY, CANNOT BE SUSTAINED LEGALLY. AS SUCH, WE FIND THAT THE AO HAS NOT USED THE SAID REPORT OF THE DVO ALSO FOR MAKING ADDITIONS OF RS. 31,33,007/ - , THE DIFFERENCE BETWEEN ACCOUNTED AMOUNT OF RS. 46,13,007/ - , CLAIMED AS THE AMOUNT SPENT ON CONSTRUCTION OF HOUSE AND ACQUISITION OF LAND AS ON 31.3.2002 MINUS RS. RS. 14.8 LAKHS, THE INVESTMENT MADE ON THE LAND PLOTS. AO MADE ADDITION FOR ASSESSEES FAILURE TO PROVIDE EVIDENCES / BILLS IN SUPPORT OF THE CLAIM OF EXPENDITURE ON THE CONSTRUCTION. IT THE PRESUMPTION OF THE AO THAT THE PLOTS SINCE ACQUIRED ONLY BY JULY 2001, THE ASSESSEE WOULD NOT HAVE SPEND RS. 31,33,007/ - BY 31 .3.2002. THIS IS MERELY A PRESUMPTION RATHER CONCLUSION BASED ON ANY EVIDENCES. SUCH ADDITIONS ARE UNSUSTAINABLE IN LAW IN THE ASSESSMENTS MADE U/S 153A R.W.S 143(3) OF THE ACT. 17 . RAJASTHAN HIGH COURT JUDGMENT IN THE CASE OF JAI STEEL (INDIA) (SUPRA), VIDE PARA 18, IT IS CATEGORICALLY MENTIONED THAT THE REQUIREMENT OF ASSESSMENT OR REASSESSMENT UNDER THE SAID SECTION (153A) HAS TO BE READ IN THE CONTEXT OF SECTIONS 132 OR 132A OF T HE ACT, INASMUCH AS, IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENTS DOES NOT ARISE, WHICH WOULD MORE REITERATION.. THUS, THE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF JAI STEEL LTD, SUPRA AND ABOVE DECISIONS OF THE TRIBUNAL ARE CATEGORICAL IN CONCLUDING THAT, IN CASE OF THE 9 CONCLUDED ASSESSMENTS LIKE THE PRESENT ONE, THE ADDITIONS ARE MADE ONLY BASED ON THE INCRIMINATING MATERIAL DISCOVERED DURING THE SEARC H ACTION. THE FACTS OF THE JAI STEEL LTD (SUPRA) ARE IDENTICAL TO THE PRESENT ONE IE AO MADE ADDITIONS BY REASSESSING U/S 153A ON THE COMPLETED ASSESSMENT U/S 143(1) OF THE ACT. THUS, CONSIDERING THE JUDGMENT IN THE CASE OF THE JAI STEEL LTD (SUPRA), THE A RGUMENTS ON THE LEGAL ISSUE RAISED BEFORE US STANDS COVERED. THEREFORE, CONSIDERING THE RAJASTHAN HIGH COURTS JUDGMENT IN THE CASE OF JAI STEELS LTD, SUPRA, WE HAVE NO DIFFICULTY IN (I) UPHOLDING THE ISSUE OF NOTICE U/S 153A OF THE ACT AND (2) IN DISAPPRO VING THE MAKING OF THE IMPUGNED ADDITIONS U/S 68 AND 14A OF THE ACT, WHICH ARE NOT BACKED BY THE INCRIMINATING MATERIALS. IN THE ABSENCE OF INCRIMINATING MATERIAL, THE ROLE OF THE AO IS ONLY TO REITERATE THE RETURNED INCOME FILED IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT. ACCORDINGLY, IN SUBSTANCE, THE COMMON LEGAL ISSUE RAISED IN THE GROUNDS FOR BOTH THE APPEALS OF THE ASSESSEE (ITA NO 3389&3390/M/2011 ) IS ALLOWED . 10. FURTHER, IN THE RECENT PAST, SIMILAR ISSUE WAS ADJUDICATED BY THE HONBLE DELHI HIG H COURT IN THE CASE OF CIT VS. KABUL CHAWLA VIDE ITA NOS. 707/2014 AND OTHERS, DATED 28.8.2015, WHEREIN THE HONBLE DELHI HIGH COURT HAS REITERATED THE ABOVE SETTLED LEGAL PROPOSITION THAT SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. IN THIS REGARD, WE FIND IT RELEVANT TO EXTRACT THE SUMMARY OF THE LEGAL PROPOSITIONS AND THE CONCLUSION OF SAID JUDGMENT OF THE HONBLE DELHI HIGH COURT WHICH IS AS FOLLOWS: SUMMARY OF THE LEGAL POSITION: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLAC E UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE R ELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RE SPECT OF EACH OF THE SIX AYS IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST - SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO A BATED PROCEEDINGS (I.E. 10 THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING TH E ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. CONCLUSION 38. THE PRESENT APPEALS CONCERN AYS, 2002 - 03, 2005 - 06 AND 2006 - 07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHE D DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 39. THE QUESTION FRAMED BY THE COURT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 11 . FROM THE ABOVE SETTLED LEGAL POSITION OF THE ISSUE THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING SEARCH, ADDITIONS MADE ON THE ASSESSED INCOME ARE UNSUSTAINABLE IN LAW, WE ARE OF THE CONSIDERED OPINION THAT THE ADDITIONS MADE IN THE INSTANT CASE ARE NOT SU STAINABLE AND ACCORDINGLY, WE DELETE THE SAME . CONSIDERING OUR DECISION ON THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE, THE OTHER GROUNDS DEMAND NO S PECIFIC ADJUDICATION. THUS, ON THE LEGAL GROUND THE ASSESSEE SUCCEEDS AND REST OF THE GROUNDS ARE DISMISSED AS ACADEMIC. 12 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ITA NO.2962 /M/2011 (AY 2003 - 2004) (BY REVENUE) ITA NO.2963 /M/2011 (AY 2004 - 2005) (BY REVENUE) ITA NO.2964 /M/2011 (AY 2005 - 2006) (BY REVENUE) AND ITA NO.2884/M/2011 (AY 2005 - 2006) (BY ASSESSEE) 13. OUT OF THE ABOVE FOUR APPEALS, THREE APPEALS ARE FILED BY THE REVENUE AND ONE APPEAL ITA NO.2884/M/2011 IS FILED BY THE ASSESSEE. ALL THESE APPEALS ARE FILED AGAINST THE COMMON ORDER OF THE CIT (A) - 40, MUMBAI DATED 25.1.2011 AYS 2003 - 04 TO 2005 - 06 . IN ALL THESE APPEALS, REVENUE AS WE LL AS THE ASSESSEE, RAISED THE IDENTICAL ISSUES TO THAT OF THE ONES RAISED BY THE REVENUE FOR THE AY 2002 - 0 3 IN APPEAL ITA NO. 2961/M/2011, WHICH IS ADJUDICATED BY US IN THE ABOVE PARAGRAPHS OF 11 THIS ORDER AND THE ONLY DIFFERENCE IS IN FIGURES . IN FACT ALL THE AYS UNDER CONSIDERATION FALL UNDER THE CATEGORY OF NON - ABATED YEARS. THEREFORE, THE VALIDITY OF THE ADDITIONS IN THE ABSENCE OF ANY INCRIMINATING MATERIAL IS THE CORE ISSUE INVOLVED IN THE PRESENT APPEALS. WHILE ADJUDICATING THE SAID REVENUES APPEAL FOR THE AY 2002 - 03, WE HAVE DECIDED THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE AND CONSEQUENTLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. SINCE, THE GROUNDS RAISED BY THE REVENUE IN ALL THESE APPEALS ARE IDENTICAL TO THAT OF THE ONES ADJUDICATED BY THE VIDE APPEAL FOR THE AY 2002 - 03, THEREFORE, OUR DECISION GIVEN THEREIN SQUARELY APPLIES TO THE PRESENT APPEALS TOO. CONSIDERING THE SAME, ALL THE GROUNDS RAISED BY THE REVENUE IN THE INSTANT 3 APPEALS ARE DISMISSED. CONSEQUENTLY, THE GROUNDS RAISED B Y THE ASSESSEE IN ITS APPEAL FOR THE AY 2005 - 06 ARE ALLOWED. 14. IN THE RESULT, THREE APPEALS OF THE REVENUE S APPEALS ARE DISMISSED AND ONE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.2966 /M/2011 (AY 2007 - 2008) (BY REVENUE) ITA NO.2967 /M/2011 (AY 2008 - 2009) (BY REVENUE) 15. THESE TWO APPEALS ARE FILED BY THE REVENUE AGAINST THE SAID ORDER OF THE CIT (A) - 40, MUMBAI DATED 25.1.2011. IN THIS APPEAL, REVENUE RAISED THE IDENTICAL ISSUES IN BOTH THE APPEALS AND THEREFORE, FOR THE SAKE OF REFERENCE AND ADJUDICATION PURPOSE, THE GROUNDS RAISED BY THE REVENUE FOR THE AY 2007 - 2008 ARE EXTRACTED AS FOLLOWS: 1.(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) FAILED TO APPRECIATE THAT THE ANNUAL VALUE AS OFFERED BY THE ASS ESSEE WAS GROSSLY UNDERSTATED AND THE ASSESSING OFFICER WAS JUSTIFIED IN DETERMINING FAIR MARKET V ALUE IN TERMS OF SECTION 23(1)(A ) BY ADDING NOTIONAL INTEREST @ 7% ON INTEREST - FREE DEPOSIT OF RS. 1,20,50,000/ - . (B) ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION MADE AT RS. 8,43,500/ - BEING NOTIONAL INTEREST WHICH COULD FORM A PART OF ANNUAL LETTING VALUE OF THE PROPERTY IN TERMS OF SECTION 23(1)(A) OF THE ACT. 16. BRIEFLY STATED RELE VANT FACTS OF THE CASE ARE THAT IN THE YEAR UNDER CONSIDERATION, ASSESSEE RECEIVED RENT OF RS. 8,55,000/ - ON A RENTED OUT PROPERTY TO M/S. ATLANTA INFRASTRUCTURE LTD AND ALSO RECEIVED INTEREST FREE REFUNDABLE SECURITY DEPOSIT OF RS. 1,20,50,000/ - . ASSESSEE RECEIVED THE SAID DEPOSIT IN LIEU OF L ETTING 12 OUT OF THE SAID PROPERTY. DURING THE ASSESSMENT PROCEEDINGS, AO ASKED THE ASSESSEE WHY THE NOTIONAL INTEREST ON THE RENT DEPOSIT RECEIVED OF RS. 1,20,50,000/ - SHOULD NOT BE CONSIDERED AS RENT INCOME FOR THE PURPOSE OF COMPUTING THE INCOME FROM HOUSE PROPERTY. IN REPLY ASSESSEE MADE VARIOUS SUBMISSIONS AND THE SAME WERE NOT ACCEPTED BY THE AO AND OPINED THAT INTEREST FREE DEPOSIT SHOULD BE CONSIDERED WHILE CALCULATING THE ANNUAL LETTING VALUE (ALV) OF THE PROPERTY AND DUE WEIGHTAGE SHOULD BE GIVEN TO THE INTEREST FREE DEPOSIT RECEIVED FOR THE PURPOSE OF DETERMINING THE CORRECT ALV OF THE PROPERTY. AO CAME TO THE CONCLUSION THAT WHILE COMPUTING THE INCOME FROM HOUSE PROPERTY CERTAIN PERCENTAGE OF INTEREST FREE DEPO SIT HAS TO BE CONSIDERED AND ADDED TO THE ALV OF THE PROPERTY GIVEN TO RENT. ACCORDINGLY, AO ESTIMATED THAT 7% OF INTEREST FREE DEPOSIT OF RS. 1,20,50,000/ - IE RS. 8,43,500/ - AS RENT INCOME AND CALCULATED THE ALV OF THE PROPERTY AT RS. 24,18,500/ - [RS. 15 ,75,000 + RS. 8,43,500/ - ] AND CALCULATED THE INCOME FROM HOUSE PROPERTY AFTER ALLOWING THE DEDUCTION AT 30% U/S 24(A) OF THE ACT IN THE ASSESSMENT MADE U/S 153A R.W.S 143(3) OF THE ACT. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL TO THE FIRST APPELLA TE AUTHORITY. 17. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) DELETED THE ADDITION MADE BY THE AO AND DELETED THE ADDITION. AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 18 . DURING THE PROCEEDINGS BEFORE THE TRIBUNAL IT IS THE CASE OF THE REVENUE THAT THE BEING THE AYS 2007 - 08 AND 2008 - 09 ARE ABATED YEARS, THE LAW LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ALL CARGO GLOBAL LOGISTIC (374 ITR 645) WOULD NOT APPLY. IN THAT CASE, THE AO CAN MAKE ADDITION EVEN IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH. BEFORE US, LD DRS FOR THE REVENUE RELIED ON THE DECISIONS OF THE TRIBUNAL IN THE CASE OF ITO VS. BAKER TECHNICAL SERVICES (P) LTD (126 TTJ 455) (MUM); CIT VS. K. STREETLITE ELEC TRIC CORPORATION [336 ITR 348 (P&H)]. 19. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE RELIED ON VARIOUS DECISIONS OF THE TRIBUNAL AND MADE WRITTEN SUBMISSIONS IN SUPPORT OF HIS CONTENTION THAT THE AO HAS N OT CONDUCTED ANY ENQUIRY TO FIND THE FAIR MARKET RENT EXPECTED TO BE FETCHED BY THE PROPERTY AND COMPARE IT WITH THE ACTUAL RENT RECEIVED AND THEN HE CAN PROCEED TO MAKE ANY ADDITIONS, IF REQUIRED. HOWEVER, THE AO CANNOT MAKE ANY ADDITIONS ON 13 ESTIMATION B ASIS. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. TIP TOP TYPOGRAPHY (368 ITR 330). HE FURTHER SUBMITTED THAT THE AO CANNOT TAKEN INTO ACCOUNT NOTIONAL INTEREST ON SECURITY DE POSIT. FOR THIS PROPOSITION, LD COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF CIT VS. MRS. BHARATI ANIRUDH IN ITA NO.1417/MUM/2011, DATED 16.1.2015, WHEREIN THE TRIBUNAL ALSO FOLLOWED THE SAID JUDGMENT OF THE HONBLE HIGH COURT IN THE CASE OF TIP TOP TYPOGRAPHY (SUPRA) AND DELETED THE ADDITION MADE ON ACCOUNT OF NOTIONAL INTEREST. FURTHER, HE RELIED ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTION. 1. ASST. CIT VS. M/S. RECLAMATION REAL ESTATE CO. PVT LTD VIDE ITA NO. 7778/MUM/2010, DATED 26.4.2013. 2. M/S. GAGAN TRADING CO. LTD VS. ITO IN ITA NO.4088/MUM/2010 (AY 2006 - 07) DATED 12.10.2012. 3. M/S. GAGAN TRADING CO. LTD VS. ITO IN ITA NO.5288/MUM/2012 (AY 2009 - 2010), DATED 29.7.2015. 4. CIT VS. ASIAN HOTELS LTD [323 ITR 490 (DEL)] 20. LD COUNSEL FOR THE ASSESSEE ALSO DISTINGUISHED THE DECISIONS RELIED ON BY THE LD DR IN THE WRITTEN SUBMISSIONS MADE BY HIM. THE WRITTEN SUBMISSIONS MADE BY THE LD COUNSEL FOR THE ASSESSEE ARE AS FOLLOWS: IT IS REITERATED THAT THE ASSESSING OFFICER HAS MADE ADDITION ON ACCOUNT OF NOTIONAL INTEREST ON INTEREST FREE REFUNDABLE SECURITY DEPOSIT IN DETERMINING THE AL V OF THE PROPERTY . ACCORDING TO THE ASSESSING OFFICER , THE DEPOSIT TAKEN BY THE ASSESSEE HAS AFFECTED IN DETERMINING THE VALUE OF R ENT AND HENCE THE SAID ADDITION HAS BEEN MADE. IT IS SUBMITTED THAT THE ASSESSING OFFICER HAS NOT DETERMINED THE FAIR MARKET RENT OF THE PROPERT Y AS PER S. 23(1)(A) BUT HAS SIMPLY PROCEEDED TO MAKE THE ADDITION ON ACCOUNT OF NOTIONAL INTEREST TO THE ACTUAL RENT RECEIVED BY THE ASSESSEE. IT IS SUBMITTED THAT AS PER THE PROVISIONS OF S. 23(1)(A), THE ASSESSING OFFICER HAS TO FIRST DETERMINE THE SUM FOR WHICH PROPERTY MIGHT REASONABL Y BE EXPECTED TO FETCH THE RENT FROM OPEN MARKET AND THEN IF THE PROPERT Y IS L ET OUT, HE HAS TO COMPARE THE SAID RATE WITH THE ACTUAL RENT RECEIVED OR RECEIVABLE. IF THE REASONABLE EXPECTED RENT IS FOUND TO BE MORE THAN THE ACTUAL RENT THEN THE SAME HAS TO BE ADOPTED FOR DETERMINING THE AL V OF THE PROPERTY. IT IS SUBMITTED THAT IN ORDER TO DETERMINE REASONABLE RENT TO BE FETCHED BY PROPERTY THE ASSESSING OFFICER HAS TO CONDUCT PROPER ENQUIR Y AND TAKE NECESSARY STEPS TO FIND OUR PREVAILING MARKET RATE. IN THE PRESENT CASE, THERE IS NO FINDING BY THE ASSESSING OFFICER THAT THE ACTUAL RENT RECEIVED BY THE ASSESSEE IS LESS THAN THE FAIR MARKET RENTAL V ALUE OF THE PROPERTY. IT IS SUBMITTED THAT IF THE ASSESSING OFFICER WAS OF THE V IEW THAT INTEREST FREE DEPOSIT HAS AFFECTED THE RENT AGREED BETWEEN THE PARTIES THEN THE ASSESSING OFFICER SH OULD HAVE CARRIED OUT INVESTIGATION AND ENQUIR Y . IT IS FURTHER SUBMITTED THAT BEFORE ARRIVING AT ANY CONCLUSION, THE ASSESSING OFFICER SHOULD HAVE COGENT AND SATISFACTORY MATERIAL IN HIS POSSESSION TO INDICATE THAT THE INTEREST FREE REFUNDABLE DEPOSIT HAS AFFECTED THE RENT AGREED BETWEEN THE PARTIES. IN ORDER TO SUPPORT THE ABOVE CONTENTION RELIANCE IS PLACE ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT 14 V. TIP TOP TYPOGRAPHY (368 ITR 330) WHEREIN IT HAS BEEN HELD THAT THE ASSESSING OFF ICER MUST CONDUCT ENQUIRY TO FIND OUT THE FAIR MARKET RENT EXPECTED TO BE FETCHED BY THE PROPERTY AND COMPARE IT WITH THE ACTUAL RENT RECEIVED AND THEN MAKE THE REQUIRED ADDITION, IF ANY. HOWEVER, THE ASSESSING OFFICER CANNOT MAKE ANY ADDITION ON THE BASIS OF CONJECTURES AND SURMISES. IT IS FURTHER SUBMITTED THAT THE ASSESSING OFFICER, AT BEST, CAN ADD THE FAIR MARKET RENT THAT THE PROPERTY COULD HAVE FETCHED AFTER CONDUCTING ENQUIRY BUT THE ASSESSING OFFICER CANNOT TAKE INTO ACCOUNT NOTIONAL INTEREST ON S ECURITY DEPOSIT. RELIANCE IS ALSO PLACED ON THE ORDER OF THE HON'BLE TRIBUNAL IN THE CASE OF ASST. CIT V MRS. BHARATI ANIRUDH BEING ITA NO: 1417/MUM/2011 DATED 16 . 01 . 2015 (COPY ALREADY ON RECORD) WHEREIN THE HON'BLE TRIBUNAL FOLLOWING THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V TIP TOP TYPOGRAPHY (368 ITR 330) HAS DELETED THE ADDITION ON ACCOUNT OF NOTIONAL INTEREST MADE BY THE ASSESSING OFFICER. .......... 20.1. DECISIONS DISTINGUISHED BY THE LD COUNSEL FOR THE ASSESSEE ARE AS UNDER: ITO V. BAKER TECHNICAL SERVICES (P) LTD [126 455(MUM)] IN THE SAID DECISION, IT HAS BEEN HELD THAT THE AL V DETERMINED BY THE MUNICIPAL AUTHORITIES IS NOT BINDING ON THE ASSESSING OFFICER WHILE DETERMINING THE ALV U/ S 23(1)(A) IF THE ASSESSING OFFICER CAN SHOW THAT THE RATEABLE VALUE UNDER MUNICIPAL LAW DOES NOT REPRESENT THE CORRECT FAIR RENT . IN THE SAID DECISION, THE HON'BLE TRIBUNAL HELD THAT THE ASSESSING OFFICER HAS THE POWER TO ADOPT THE FAIR MARKET RENTAL VALUE IF THE ASSESSING OFFICER CAN DEMONSTRATE THAT THE ACTUAL RENT RECEIVED/ RECEIVABLE BY THE ASSESSEE IS LOWER THAN THE FAIR MARKET RENT . IN THE PRESENT CASE, THE ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON RECORD TO PROVE THAT THE RATEABLE VALUE BY MUNICIPAL LAWS ARE NOT CORRECT OR CANNOT BE APPLIED. THE CIT(A), IN THE PRESENT CASE, HAS CONSIDERED THIS DECISION AND HELD THAT IN THE PRESENT CASE THE ASSESSING OFFICER HAS MERELY PROCEEDED O N THE ASSUMPTION THAT THE RENT RECEIVED BY THE ASSESSEE IS LOWER WITHOUT ANY EVIDENCE ON RECORD AND HENCE, THE SAID DECISION WILL NOT APPLY TO THE FACTS OF THE PRESENT CASE. CIT V. K. STREETLITE ELECTRIC CORPORATION [336 ITR 348 (P &H)] IN THE SAID DECISION, THE HON'BLE HIGH COURT HAS HELD ON FACTS THAT THE SECURITY DEPOSIT RECEIVED BY THE ASSESSEE WAS A SHAM DEVICE TO AVOID TAX SINCE THE SECURITY DEPOSIT TAKEN BY THE ASSESSEE WAS MORE THAN THE ACTUAL VALUE OF THE PROPERTY LET OUT . THE HON'BLE HIGH COURT FURTHER HELD THAT ORDINARILY NOTIONAL INTEREST WOULD NOT FORM PART OF INCOME FROM HOUSE PROPERTY BUT WHERE IT WAS ESTABLISHED THAT SECURITY DEPOSIT WAS TO CIRCUMVENT LIABILITY TO TAX ON REAL RENT, IT WOULD FALL WITHIN THE AMBIT OF INCOME FROM HOUSE P ROPERTY . IN THE PRESENT CASE THE ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THE SECURITY DEPOSIT TAKEN HAS AFFECTED THE RENT CHAR GED BY THE ASSESSEE AND HENCE, THE FACTS OF THE PRESENT CASE ARE DISTINGUISHABLE FROM THE PRINCIPLES EMA NATING FROM THE SAID JUDGMENT. MOREOVER, IN THE ORDER OF THE HON'BLE TRIBUNAL IN THE CASE OF ASST. CIT V MRS. BHARATI ANIRUDH BEING ITA NO: 1417/MUM/2011 DATED 16.01.2015 AT PAGE 3 OF THE ORDER , THIS DECISION HAS BEEN CONSIDERED AND THE ISSUE HAS BEEN DECI DED IN FAVOUR OF ASSESSEE BY RELYING ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN CASE OF CIT V TIP TOP TYPOGRAPHY (368 ITR 330) . IT WOULD BE WORTHWHILE TO NOTE THE OBSERVATIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT ON THE ISSUE OF NOTIONAL INTER EST CHARGED ON SECURITY DEPOSIT, WHEREIN IT WAS HELD AS UNDER: '51. WE QUITE SEE THE FORCE IN TH E ARGUMENTS OF MS. VISSANJEE THAT ORDINA R ILY THE LICENSE FEE AGREED BETWEEN THE WILLING LICENSOR OR A WILLING LICENSEE UNINFLUENCED BY ANY EXTRANEOUS CIRCUMSTA NCES WOULD AFFORD RELIABLE 15 EVID E NC E OF WHAT THE ITA NO . 1417/MUM/2011 ASSESSMENT YEAR:2005 - 2006 LANDLORD MIGHT REASONABLY BE EXPECT TO GET FROM A HYPOTHETICAL TENANT. SHE HAS IN MAKING THIS SUBMISSION , ANSWERED THE ISSUE AND SUMMED UP THE CONCLUSION AS WELL. THEN, IT IS BUT NATURAL AND LOGICAL THAT IN THE EVENT, THE TRANSACTION IS INFLUENCED BY ANY EXTRANEOUS CIRCUMSTANCES OR VI T IATED BY FR AUD, OR THE LIKE THAT THE ASSESSING OFFICER CAN ADOPT A 'FAIR RENT' BASED ON THE OPINION OBTAINED FROM RELIABLE SOUR CES. THERE AS WELL, WE DO NOT SEE AS TO HOW WE CAN UPHOLD THE SUBMISSIONS OF MR. CHHOTARAY THAT THE NOTIONAL RENT ON THE SECURITY DEPOSIT CAN BE TAKEN INTO ACCOUNT AND CONSIDERATION FOR THE DETERMINATION. IF THE TRANSACTION ITSELF DOES NOT REFLECT ANY OF T HE AFORE STATED ASPECTS, THEN, MERELY BECAUSE A SECURITY DEPOSIT WHICH IS REFUNDABLE AND INTEREST FREE HAS BEEN OBTAINED, THE ASSESSING OFFICER SHOULD NOT PRESUME THAT THIS SUM OR THE INTEREST DERIVED THEREFROM AT BANK RATE IS THE INCOME OF THE ASSESSEE TI LL THE DETERMINATION - OR CONCLUSION OF THE TRANSACTION . THE ASSESSING OFFICER OUGHT TO BE AWAR E OF SEVERAL ASPECTS AND MATTERS INVOLVED I N SUCH TRANSACTIONS. IT IS NOT NECESSARY THAT IF THE LICENSE IS FOR THREE YEARS THAT IT WILL OPERATIVE AND CONTINUING TILL TH E END. THERE ARE TERMS AND CONDITIONS ON WHICH THE LEAVE AND LICENSE AGR EE M E NT IS EXECUTED BY PARTIES. THESE TERMS AND CONDITIONS ARE WILLINGLY ACC E PT E D. TH E Y ENABLE THE LICENSE TO BE DETERMINED EVEN BEFORE THE STATED PERIOD EX PI RE S . EQUALLY, THE LI CENSEE CAN OPT OUT OF THE DEAL. A LEAVE AND LICENSE DOES NOT CREATE ANY INTEREST IN THE PROPERTY. THEREFORE , IT IS NOT AS IF THE SECURITY D E POSIT BEING MADE, IT WILL BE NECESSARILY REFUNDABLE AFTER TH E TH I RD YE AR AND NOT OTH E R W ISE. EVERYTHING DEPENDS UPON THE FACTS AND CIRCUMSTANCES IN EACH CASE AND THE NATURE OF THE DEAL OR TRANSACTION . THESE ARE NOT MATTERS WHICH ABIDE BY ANY FIXED FORMULA AND WHICH CAN BE U NIVERSALLY APPLIED . TODAY , IT MAY BE COMMERCIALLY UNVIABLE TO ENTER INTO A LEASE AND, THEREFORE, THIS MODE OF INDUCTING A THIRD PARTY IN THE PREMISES IS ADOPTED. THIS MAY NOT BE TH E TREND TOMORROW, TH EREFORE, WE DO NOT WISH TO CONCLUDE THE MATTER BY EV OLVING ANY RIGID TEST'. IN VIEW OF THE ABOVE FACTS AND AFTER C ONSIDERING THE JUDICIAL PRONOUNCEMENTS IT IS HUMBLY SUBMITTED THAT THE ORDER PASSED BY THE LEARNED CIT(A) MAY KINDLY BE UPHELD. 21. WE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISIONS RELIED ON BY TH E LD COUNSEL FOR THE ASSESSEE AND ALSO THE RELEVANT MATERIAL PLACED ON RECORD. THE ISSUE INVOLVED IN THE PRESENT APPEAL RELATES TO THE CORRECTNESS OF THE ALV OF THE PROPERTY, WHICH WAS RENTED OUT . AO CONSIDERED THE RENTAL ADVANCE AND THE NOTIONAL INTEREST THEREON FOR ARRIVING AT THE ALV. THIS IS THE MATTER OF DISPUTE BETWEEN THE BOTH THE PARTIES BEFORE THE FIRST APPELLATE AUTHORITY AS WELL AS THE TRIBUNAL. IDENTICAL ISSUE WAS DECIDED BY THE T RIBUNAL IN FAVOUR OF THE ASSESSEE BY ITS VARIOUS DECISIONS MENTIONED ABOVE. ON PERUSAL OF THE CITED DECISIONS OF THE TRIBUNAL (SUPRA), WE FIND THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. GAGAN TRADING CO. LTD VS. ITO IN ITA NO.5288 & 5468/M/2012 (AY 2009 - 2010), DATED 29.7.2015, WHEREIN ONE OF US (AM) IS A PARTY 16 TO THE SAID ORDER OF THE TRIBUNAL, IS RELEVANT HERE SINCE THE IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL. THEREFORE, FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE FIND IT RELEVANT TO EXTRACT THE RELEVANT PORTIONS OF THE SAID ORDER OF THE TRIBUNAL (SUPRA) DATED 29.7.2015 WHICH IS AS UNDER: 5. ................. WHEREIN THE SAID QUESTIONS WERE ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY RELYING ON THE BOMBAY HIGH COURT JUDGMEN T IN THE CASE OF CIT VS. TIP TOP TYPOGRAPHY [2014] 48 TAXMANN.COM 191 (BOMBAY). FURTHER, ............... AN IDENTICAL ISSUES WERE RAISED IN THE SAID APPEAL AND THE SAME WERE AGAIN DECIDED IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 29.1.2014 IN ITA NOS.610 4 AND 6578/M/2011 AND THE CONTENTS OF PARA 6 OF THE SAID TRIBUNALS ORDER ARE RELEVANT IN THIS REGARD, WHICH READ AS UNDER: 6. ......................... IN OUR OPINION, THE SIMILAR ISSUE AS INVOLVED IN THE PRESENT CASE THUS, HAS BEEN DECIDED BY THE COOR DINATE BENCH OF THIS TRIBUNAL IN FAVOUR OF THE ASSESSEE IN THE CASE OF RECLAMATION REALITY INDIA PVT LTD (SUPRA) AND SINCE THE SAID DECISION HAS BEEN RENDERED BY THE TRIBUNAL RELYING ON AND FOLLOWING THE JUDGMENTS OF HONBLE APEX COURT AND THE HONBLE JURI SDICTIONAL HIGH COURT, WE ARE OF THE VIEW THAT THE JUDICIAL PROPRIETY AND JUDICIAL DISCIPLINE REQUIRE US TO FOLLOW THE SAME. ACCORDINGLY, RESPECTFULLY FOLLOWING THE SAID JUDICIAL PRONOUNCEMENT, WE MODIFY THE IMPUGNED ORDER OF THE LD CIT (A) ON THIS ISSUE AND DIRECT THE AO TO ACCEPT THE INCOME FROM HOUSE PROPERTY DECLARED BY THE ASSESSEE ADOPTING THE MUNICIPAL RATABLE VALUE AS ANNUAL LETTING VALUE OF ITS PROPERTY. GROUND NO.1 OF THE ASSESSEES APPEAL IS ACCORDINGLY ALLOWED WHEREAS THE SOLITARY GROUND RAISED IN THE REVENUES APPEALS IS DISMISSED. RESPECTFULLY, FOLLOWING THE FINDINGS OF THE COORDINATE BENCH, REVENUES APPEAL IS DISMISSED AND ASSESSEES APPEAL IS ALLOWED. 6. THUS, IT IS A DECIDED ISSUE THAT AO IS PREVENTED IN THIS CASE AND PROPERTY FROM DISTURBING THE ALV QUA THE (I) CONSIDERING THE NOTIONAL IN TEREST ON DEPOSIT AND (II) NOT CONSIDERING THE MUNICIPAL RA TABLE VALUE - BASED - ALV OF THE PROPERTY. IN THIS YEAR, AO HAS NOT GARNERED ANY INCRIMINATING MATERIAL AGAINST THE ASSESSEES CLAIM RELATING TO ALV OF THE PROPERTY IN QUESTION. AFTER CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE ARGUMENTS OF THE LD DR FOR THE REVENUE, WHO ESSENTIALLY ARGUED FOR SETTING ASIDE THE APPEAL TO THE FILE OF THE AO, WE FIND THE NEED FOR DISMISSING THE ARGUMENTS OF THE LD DR. ............. 22. IN THE PRESENT CASE, AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO DEMO NSTRATE THAT THE ACTUAL RENT CHARGED BY THE ASSESSEE IS LESS THAN THE FAIR MARKET VALUE OR THE INTEREST FREE SECURITY DEPOSIT HAS AFFECTED THE RENT CHARGED BY THE ASSESSEE. WE CANNOT SUPPORT THE MODE OF ADDITIONS MADE BY THE AO ON ESTIMATE BASIS IN THE AB SENCE OF ANY EVIDENCE ON RECORD. CONSIDERING THE SAME, RESPECTFULLY FOLLOWING THE ABOVE CITED DECISIONS OF THE TRIBUNAL (SUPRA) AND ALSO FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THE DECISION TAKEN BY THE CIT (A) IN DELETING THE ADDITION MADE BY THE AO IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE IN BO TH THE APPEALS ARE DISMISSED. 17 23. IN THE RESULT, BOTH THE APPEAL S OF THE REVENUE ARE DISMISSED. 24. SUMMARILY, 6 APPEALS OF THE REVENUE ARE DISMISSED AND ONE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCE D IN THE OPEN COUR T O N 1 2 T H O C T O B E R , 2015. S D / - S D / - ( LALIT KUMAR ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 2 . 1 0 .2015 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI