VIBHA T MANE, MUMBAI V. ITO WD 26(1), MUMBAI

ITA 369/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8355 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMEER G DALAL
• Keywords: Salary income
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA NO. : 369/MUM/2011 ASSESSMENT YEAR : 2003-04 SMT. VIBHA T. MANE 1401, PLATINUM TOWER, SECTOR-8, CHARKOP, KANDIVALI (W), MUMBAI-400 067 PAN NO: ACZPM 4221 C VS. ITO, WARD 26 ( 1 ) - 3 , CHARNI ROAD, MUMBAI-400 002 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAMEER G. DALAL RESPONDENT BY : SHRI MANOJ KUMAR DATE OF HEARING : 3 1 .10.2012 DATE OF PRONOUNCEMENT : 3 1 .10.2012 ORDER PER RAJENDRA SINGH, A.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 12.11.2010 OF CIT(A)-28, MUMBAI FOR THE A.Y. 2003-0 4. THE DISPUTES RAISED IN THIS APPEAL RELATE TO THE REOPENING OF TH E ASSESSMENT U/S. 147 AND THE ASSESSMENT OF HOUSE PROPERTY INCOME. 2. THE FACTS IN BRIEF ARE THAT THE A.O. RECEIVED IN FORMATION DURING THE YEAR THAT M/S. HINDUSTAN PETROLEUM CORPORATION LTD. (HPCL) HAD INTRODUCED A SCHEME OF SELF LEASING AS PER WHICH IT S EMPLOYEES WERE EXTENDED LOAN FROM THE COMPANY ITSELF OR THEY COULD TAKE LOAN FROM ANY BANK TO ACQUIRE A HOUSE PROPERTY. THE PROPERTY SO ACQUIRED WAS LEASED TO HPCL ITSELF AND IN TURN HPCL PROVIDED THE SAME PROP ERTY TO THE EMPLOYEES AS RENT FREE ACCOMMODATION. THE A.O. ALS O RECEIVED INFORMATION THAT THE EMPLOYEES HAD NOT DISCLOSED TH E LEASE RENT AND ITA NO : 369/MUM/2011 SMT. VIBHA T. MANE 2 MAINTENANCE CHARGES RECEIVED IN RESPECT OF THE PROP ERTY FROM HPCL IN THEIR RETURNS OF INCOME IN WHICH ONLY SALARY INCOME HAD BEEN DECLARED. AS PER THE A.O., THE INFORMATION CALLED FOR FROM HP CL WAS EXAMINED AND IT WAS FOUND THAT THE ASSESSEE HAD NOT DECLARED THE LEASE RENT OF `. 64,176/- AND MAINTENANCE CHARGES IN RESPECT OF THE PROPERTY. THE A.O., THEREFORE, REOPENED THE ASSESSMENT U/S.147 OF THE I .T. ACT AND ASSESSED THE LEASE RENT AS HOUSE PROPERTY INCOME. THE REI MBURSEMENT OF REPAIRS AND MAINTENANCE CHARGES OF `. 12,900/- WAS ASSESSED AS INCOME FROM OTHER SOURCES. THE ASSESSEE CHALLENGED THE ORDER OF THE A.O. BOTH ON THE ISSUE OF REOPENING THE ASSESSMENT AS WELL AS ON MERIT OF THE ADDITION. THE CIT(A) HOWEVER, UPHELD THE REOPENING OF THE ASS ESSMENT AS WELL AS THE ADDITION MADE BY THE A.O. AGGRIEVED BY WHICH TH E ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. BEFORE ME, THE LEARNED AR FOR THE ASSESSEE SUBMI TTED THAT THE PROPERTY UNDER CONSIDERATION WAS OWNED BY THE HUSBA ND OF THE ASSESSEE AND IT IS THE HUSBAND WHO HAD LEASED THE PROPERTY A ND RECEIVED THE LEASE RENT AND REIMBURSEMENT OF MAINTENANCE CHARGES. HE REFERRED TO THE COPY OF THE LEASE AGREEMENT DATED 11.04.2001 PLACED AT P AGE NO. 6 OF THE PAPER BOOK IN WHICH IT WAS CLEARLY MENTIONED THAT SHRI TA NAJI NANASAHEB MANE WAS THE OWNER OF THE PROPERTY WHO HAD LEASED THE SA ME TO HPCL. THE LEARNED AR ALSO REFERRED TO THE LETTER DATED 29.01. 2009 OF THE SOCIETY PLACED AT PAGE 9 OF THE PAPER BOOK IN WHICH THE SOC IETY CONFIRMED THAT DR. TANAJI N. MANE HAD BEEN ALLOTTED THE RESIDENTIAL HO USE AND HE WAS THE OWNER WHO WAS REGULARLY PAYING THE MAINTENANCE CHAR GES. IT WAS FURTHER SUBMITTED BY THE LEARNED AR THAT THE CIT(A) IN THE A.Y. 2005-06 IN ASSESSEES OWN CASE IN THE ORDER DATED 28.02.2012 H AS CLEARLY HELD THAT THE PROPERTY WAS OWNED BY THE HUSBAND OF THE ASSESS EE AND, THEREFORE, THE CIT(A) DIRECTED TO DELETE THE ADDITION. IT WAS ACCORDINGLY URGED THAT THE ADDITION MAY BE DELETED. THE LEARNED DR, ON TH E OTHER HAND, ITA NO : 369/MUM/2011 SMT. VIBHA T. MANE 3 SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND P LACED RELIANCE ON THE FINDINGS GIVEN IN THE RESPECTIVE ORDERS. IT WAS PO INTED OUT THAT BOTH THE A.O. AND THE CIT(A) HAD GIVEN A FINDING THAT THE AS SESSEE HAD RECEIVED THE LEASE RENT AND MAINTENANCE CHARGES WHICH HAD NOT BE EN DISCLOSED. 4. I HAVE PERUSED THE RECORDS AND CONSIDERED THE RI VAL CONTENTIONS CAREFULLY. THE DISPUTE IS REGARDING THE ASSESSMENT OF INCOME IN RESPECT OF THE PROPERTY AT 337/20, SWAPNA SAFALAYA CHS, CHARKO P, SECTOR-3, KANDIWALI (W), MUMBAI. THE A.O. HAD REOPENED THE A SSESSMENT U/S.147 ON THE GROUND THAT THE LEASE RENT OF `. 64,176/- AND THE REIMBURSEMENT OF REPAIR AND MAINTENANCE CHARGES OF `. 12,900/- RECEIVED FROM HPCL IN RESPECT OF THE SAID PROPERTY HAD NOT BEEN DISCLOSED IN THE INCOME TAX RETURN OF THE ASSESSEE. ACCORDINGLY, THE RENTAL IN COME HAS BEEN ASSESSED AS HOUSE PROPERTY INCOME AND REIMBURSEMENT OF REP AIR AND MAINTENANCE AS INCOME FROM OTHER SOURCES. THE CI T(A) HAS CONFIRMED THE ORDER OF THE A.O. THE ASSESSEE HOWEVER, HAS FI LED THE COPY OF THE AGREEMENT DATED 11.04.2001 IN RESPECT OF THE SAID P ROPERTY WITH HPCL IN WHICH THE OWNER OF THE PROPERTY HAS BEEN MENTIONED AS SHRI TANAJI NANASAHEB MANE WHO IS THE HUSBAND OF THE ASSESSEE. A LETTER DATED 29.01.2009 FORM THE SOCIETY HAS ALSO BEEN PLACED ON RECORD IN WHICH IT HAS BEEN CONFIRMED THAT SHRI TANAJI NANASAHEB MANE WAS THE OWNER OF THE PROPERTY. THE COPY OF THE AGREEMENT AND THE AB OVE MENTIONED LETTER HAD BEEN SUBMITTED BEFORE THE CIT(A) AS PER THE CER TIFICATE GIVEN BY THE ASSESSEE WHICH APPARENTLY HAS NOT BEEN EXAMINED BY THE CIT(A). I ALSO NOTE THAT THE CIT(A) IN ASSESSEES OWN CASE IN THE A.Y. 2005-06 IN THE ORDER DATED 28.02.2012 HAS GIVEN A FINDING THAT IT WAS THE HUSBAND OF THE ASSESSEE WHO WAS THE OWNER OF THE PROPERTY AND ACCO RDINGLY, HE HAD DELETED THE ADDITION MADE. IN VIEW OF THIS FACTUAL POSITION, THE MATTER IN MY VIEW REQUIRES FRESH EXAMINATION AT THE LEVEL OF THE CIT(A). BOTH THE PARTIES HAD NO OBJECTION IF BOTH THE ISSUES I.E. RE OPENING OF THE ITA NO : 369/MUM/2011 SMT. VIBHA T. MANE 4 ASSESSMENT AND MERIT OF ADDITION IS REFERRED TO THE CIT(A) FOR FRESH DECISION. I, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO HIM FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION OF ALL RELEVANT MATERIAL AND AFTER ALLOWING OPPORTU NITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2012. SD/ - ( RAJENDRA SINGH ) ACCOUNTANT MEMBER MUMBAI, DT: 31.10.2012 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI