MUMBAI CRICKET ASSOCIATION, MUMBAI V. CIT (E), MUMBAI

ITA 3816/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0118 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Assessee Lawyers: ARVIND SONDE
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 143(3); 142(1); 263; 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI G S PANNU, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.3816/MUM/2016 ASSESSMENT YEAR : 2011-12 MUMBAI CRICKET ASSOCIATION, WANKHEDE STADIUM NORTH STAND, A & C BLOCK, MUMBAI 400 010 PAN AAAAM0223A VS. CIT (EXEMPTION ), MUMBAI (APPELLANT) RESPONDENT) APPELLANT BY : SHRI ARVIND SONDE RESPONDENT BY : SHRI N P SINGH DATE OF HEARING : 1 1 .0 4 .201 7 DATE OF PRONOUNCEMENT : 23 .06 . 201 7 O R D E R PER G S PANNU, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(EXEMPTION), MUMBAI (IN SHORT THE COMMISSIONER ), DATED 28.03.2016, U/S. 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) F OR A.Y. 2011-12, WHEREBY THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER, D ATED 29.03.2014 (WRONGLY MENTIONED AS 11.03.2013 BY THE CIT(E)), U/S. 143(3) HAS BEEN HELD TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE ON ACCOUNT OF EXCESS DEDUCTION OF EXPENSES AMOUNTING TO ` 2,23,92,358/-. 2. IN THIS CONTEXT, THE RELEVANT FACTS CAN BE SUMMA RIZED AS FOLLOWS. THE ASSESSEE IS A REGISTERED TRUST AND ENGAGED IN THE P ROMOTION OF CRICKET. FOR THE YEAR UNDER CONSIDERATION, IT FILED RETURN OF INCOME DECL ARING INCOME AT NIL AFTER CLAIMING ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 2 EXEMPTION U/S. 11 & 12 OF THE ACT. THE ASSESSING O FFICER MADE ASSESSMENT U/S. 143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT ` 7,05,47,380/- AFTER DENYING EXEMPTIONS U/S. 11 & 12 OF THE ACT. THE COMMISSION ER EXAMINED THE RECORD OF PROCEEDINGS AND SHOW CAUSED THE ASSESSEE AS TO WHY THE ASSESSMENT ORDER DATED 29.03.2014 (SUPRA), BE NOT TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER NOTED THAT WHILE COM PUTING THE TOTAL INCOME THE ASSESSING OFFICER WORKED OUT THE INCOME UNDER THE H EAD INCOME FROM HOUSE PROPERTY AT ` (-)11,19,070/- AFTER ALLOWING THE DEDUCTION FOR MU NICIPAL TAXES PAID, ETC. THE COMMISSIONER FURTHER NOTED THAT WHILE CO MPUTING INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES, THE ASSESSING OFFICER HAD ALLOWED DEDUCTIONS U/S. 57 OF THE ACT, WHICH, INTER-ALIA, INCLUDED A SUM OF ` .2,23,92,358/- REPRESENTING, EXPENDITURE ON PROPERTY OTHER THAN PROPERTY TAXES. IN THE SHOW CAUSE NOTICE, THE COMMISSIONER FURTHER OBSERVED THAT THE SAID EXPENDI TURE WAS IN THE NATURE OF GROUND, ELECTRICAL, GENERAL EXPENSES AND THAT, SUCH DETAILS WERE DISCLOSED IN SCHEDULE 15 OF THE ANNUAL ACCOUNTS OF THE ASSESSEE. ON THIS BASIS, THE COMMISSIONER INFERRED THAT THE EXPENSES OF ` .2,23,92,358/- WERE RELATABLE TO THE INCOME FROM HOUSE PROPERTY AND, THEREFORE, SUCH E XPENSES COULD NOT HAVE BEEN FURTHER ALLOWED AS DEDUCTION U/S. 57 OF THE ACT WHI LE COMPUTING THE INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. AS PER THE C OMMISSIONER, THE SAID ACTION OF THE ASSESSING OFFICER HAD RESULTED IN EXCESS DEDUCT ION OF ` .2,23,92,358/-, WHICH MADE THE ASSESSMENT ORDER ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF THE ACT. ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 3 3. THE ASSESSEE TRUST RESISTED THE ACTION OF THE CO MMISSIONER AND FILED DETAILED WRITTEN SUBMISSIONS, WHICH HAVE BEEN, INTER ALIA, R EPRODUCED BY THE COMMISSIONER IN HIS ORDER. A PERUSAL OF THE WRITTEN SUBMISSIONS REVEAL THAT THE ASSESSEE ASSAILED THE ASSERTIONS OF THE COMMISSIONER BOTH IN LAW AND ON FACTS. ONE OF THE PERTINENT POINTS RAISED BY THE ASSESSEE WAS THAT THE COMMISSI ONER WAS WRONG IN ASSUMING THAT THE EXPENSES OF ` .2,23,92,358/- RELATED TO THE PROPERTY WHICH HAD GE NERATED RENTAL INCOME. RATHER, IT WAS EXPLAINED BY THE ASS ESSEE THAT THE EXPENDITURE DOES NOT RELATE TO THE PROPERTY FROM WHICH RENTAL INCOME IS BEING DERIVED, BUT THE SAME WAS IN RELATION TO OTHER PROPERTIES VIZ. WANKHEDE S TADIUM, CRICKET GROUND, ETC. INCOMES FROM WHICH HAD BEEN BROUGHT TO TAX BY THE A SSESSING OFFICER UNDER THE HEAD INCOME FROM BUSINESS. THE ASSESSEE ALSO EXP LAINED THAT THOUGH SAID EXPENDITURE WAS ALLOWABLE WHILE DETERMINING THE IN COME FROM BUSINESS, WHEREAS THE SAME HAS BEEN ALLOWED BY THE ASSESSING OFFICER WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES, THAT IN ANY C ASE, THIS ERROR WOULD NOT IMPACT THE DETERMINATION OF TOTAL INCOME AND, THEREFORE, T HE ASSESSMENT ORDER COULD NOT BE CONSIDERED TO BE PREJUDICIAL TO THE INTERESTS OF TH E REVENUE WITHIN THE MEANING OF SECTION 263 OF THE ACT. HOWEVER, THE COMMISSIONER WAS NOT SATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE THOUGH IT IS NOTICEABLE THAT NONE OF THE FACTUAL ASSERTIONS MADE BY THE ASSESSEE HAVE BEEN C ONTROVERTED BY HIM. THE COMMISSIONER HAS CONSIDERED THE ASSESSMENT ORDER DA TED 29.03.2014 (SUPRA), AS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND DIRECTED THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE WITH RESPECT TO THE ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 4 EXPENDITURE OF ` .2,23,92,358/- AFRESH AFTER MAKING NECESSARY INQUIR IES. AGAINST SUCH A DECISION OF THE COMMISSIONER, THE ASSESSEE I S IN FURTHER APPEAL BEFORE US. 4. BEFORE US, THE LEARNED REPRESENTATIVE FOR THE AS SESSEE VEHEMENTLY POINTED OUT THAT THE COMMISSIONER ERRED ON FACTS AND IN LAW IN ASSUMING THE JURISDICTION U/S. 263 OF THE ACT, IN AS MUCH AS THE EXPENDITURE OF ` 2,23,92,358/-, WAS RELATING TO PROPERTIES OTHER THAN THOSE ASSESSED UNDER THE H EAD INCOME FROM HOUSE PROPERTY AND THOUGH IT WAS ALLOWED BY THE ASSESSI NG OFFICER U/S. 57 (WHICH WAS OTHERWISE ALLOWABLE U/S. 37(1)) AND, THEREFORE, IT WOULD HAVE HAD NO IMPACT ON DETERMINATION OF THE TOTAL INCOME. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO APPROPR IATE PAGES OF THE PAPER BOOK, WHEREIN ARE PLACED THE RELEVANT EXTRACTS FROM THE A NNUAL ACCOUNTS OF THE ASSESSEE AND ALSO CORRESPONDENCES WITH AND THE QUERIES BY TH E ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS TO POINT OUT THAT THE ASSESS MENT ORDER COULD NOT BE SAID TO HAVE BEEN PASSED WITHOUT DUE APPLICATION OF MIND. IT HAS ALSO BEEN SOUGHT TO BE DEMONSTRATED THAT THE ASSESSMENT ORDER COULD NOT BE LABELLED AS BASED ON INCORRECT ASSUMPTION OF FACTS OR INCORRECT APPLICATION OF LAW . IN SUM AND SUBSTANCE, THE PLEA OF THE ASSESSEE IS THAT THE COMMISSIONER HAS EXCEED ED HIS JURISDICTION BY INVOKING SECTION 263 OF THE ACT IN THE PRESENT CASE. 5. ON THE OTHER HAND, THE LEARNED CIT-DR APPEARING FOR THE REVENUE CONTENDED THAT THE COMMISSIONER WAS JUSTIFIED IN CONCLUDING T HAT THE ASSESSING OFFICER HAD ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT MAKING EN QUIRIES AND, SUCH ERROR STOOD MANIFESTED BY THE FACT THAT EXCESS DEDUCTION OF EXP ENDITURE STOOD ALLOWED. ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 5 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. SECTION 263 OF THE ACT EMPOWERS THE COMMISSIONER TO CALL FOR AND EXAMINE T HE RECORD OF ANY PROCEEDINGS UNDER THE ACT AND, IF HE CONSIDERS THAT ANY ORDER P ASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE MAY JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING AND DIRECTING A FRESH ASSESSMENT. IN THE PRESENT CASE, THE COMMISSIONER HAS INVOKED HIS REVISIONARY POWER CONTAINED IN SECTION 263 OF THE ACT WITH RESPECT TO AN ASSESSMENT ORDER DATE D 29.03.2014 (SUPRA), PASSED BY THE ASSESSING OFFICER QUA THE DEDUCTION OF EXPENSES OF ` 2,23,92,358/-; AND, FURTHER DIRECTED THE ASSESSING OFFICER TO PASS AN ASSESSMEN T ORDER AFRESH AFTER MAKING NECESSARY ENQUIRIES AND VERIFICATION OF THE AFORESA ID ASPECT. THE PHRASEOLOGY OF SECTION 263(1) OF THE ACT ITSELF SHOWS THAT THE POW ER OF THE COMMISSIONER IS CONTINGENT ON FULFILMENT OF TWO CONDITIONS PRESCRIB ED THEREIN, NAMELY, THAT THE ORDER IS ERRONEOUS AND THAT IT IS PREJUDICIAL TO THE INTE RESTS OF THE REVENUE. THE HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. [243 ITR 83] HELD THAT THE TWO CONDITIONS HAVE TO BE CUMULATIVELY SATISFIED. IN THIS CONTEXT, THE COMMISSIONER NOTES IN PARA 6 OF HIS ORDER THAT THE TWO CONDITION S HAVE BEEN SATISFIED IN AS MUCH AS THE ASSESSING OFFICER ALLOWED THE CLAIM OF DEDUC TION OF EXPENSES U/S. 57 OF THE ACT WHEREAS THESE EXPENSES WERE RELATED TO INCOME FROM HOUSE PROPERTY AND DEDUCTION OF 30% WAS ALREADY ALLOWED U/S. 24(A) OF THE ACT. FACTUALLY SPEAKING, THE ASSESSEE HAS JOINED ISSUES WITH THE COMMISSIONE R ON THIS ASPECT BY POINTING OUT THAT THE EXPENSES IN QUESTION DO NOT RELATE TO THE PROPERTY WHOSE INCOME HAS BEEN ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 6 ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY . IN ORDER TO APPRECIATE THE SAID PLEA OF THE ASSESSEE, WE MAY BRIEFLY TOUCH UPO N THE RELEVANT FACTS. NOTABLY, IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DET ERMINED THE TOTAL INCOME AT ` 7,05,47,380/- UNDER THREE HEADS OF INCOME, VIZ. I NCOME FROM HOUSE PROPERTY AT ` (-)11,19,070/-, INCOME FROM BUSINESS & PROFESSION AT ` 13,47,50,419/- AND INCOME FROM OTHER SOURCES AT ` (-)6,30,83,974/- THEREBY DETERMINING THE TOTAL TAXABLE INCOME AT ` 7,05,47,380/-. THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY REFLECTS THE RENTAL INCOME DERIVED BY THE ASSESSEE OF ` 2,82,35,927/- WHICH IS CORRESPONDING TO SCHEDULE 12 OF THE ANNUAL ACCOUNTS OF THE ASSESSEE, WHICH IS PLACED AT PAGE 27 OF THE PAPER BOOK. NOTA BLY, IN SCHEDULE 15 OF THE ANNUAL ACCOUNTS, COPY OF WHICH IS PLACED AT PAGE 29 OF THE PAPER BOOK, TOTAL EXPENDITURE ON VARIOUS COUNTS VIZ. GROUND, ELECTRIC AL, GENERAL, PROPERTY TAX, RATES AND TAXES, GROUND RENT TO STATE GOVERNMENT, PROPERT Y INSURANCE, STADIUM REDEVELOPMENT EXPENSES, WATER AND SEWERAGE CHARGES HAVE BEEN ENUMERATED AT ` 7,95,34,044/- UNDER THE HEAD EXPENDITURE IN RESPEC T OF PROPERTY. THE AMOUNT OF PROPERTY TAXES OF ` 5,71,41,686/- HAS BEEN CONSIDERED WHILE COMPUTING THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THE BALANCE OF ` 2,23,92,358/- HAS BEEN CONSIDERED WHILE COMPUTING INCOME UNDER TH E HEAD INCOME FROM OTHER SOURCES. PERTINENTLY, THE ASSESSING OFFICER HAS A LLOWED DEDUCTION ON ACCOUNT OF PROPERTY TAXES TO THE EXTENT OF ` 3,20,58,995/-OUT OF THE TOTAL EXPENDITURE OF ` 5,71,41,686/- ON PAYMENT BASIS. THE SECOND COMPON ENT OF INCOME WAS DETERMINED UNDER THE HEAD INCOME FROM BUSINESS AND PROFESSION, WHEREIN THE ASSESSING OFFICER HAS ASSESSED INCOME FROM SPORTS A CTIVITIES. THE THIRD COMPONENT ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 7 OF INCOME WAS DETERMINED UNDER THE HEAD INCOME FRO M OTHER SOURCES, WHICH COMPRISED OF INTEREST INCOME, INCOME FROM AC BOXES, COMPOSITE CHARGES FROM CATERERS, ETC. AGAINST SUCH INCOME, DEDUCTION OF E XPENSES HAS BEEN ALLOWED U/S. 57 OF THE ACT OF ` 10,29,25,946/- WHICH, INTER ALIA, INCLUDED THE EXP ENDITURE ON PROPERTY OTHER THAN THE PROPERTY TAXES OF ` 2,23,92,358/-. NOW, AS PER THE ASSESSEE, SUCH AMOUNT OF ` 2,23,92,358/- REFLECTING EXPENDITURES UNDER VARIOU S HEADS EXCEPT PROPERTY TAXES, WHICH WE HAVE ENUMERAT ED EARLIER, RELATE TO THE INCOME FROM SPORTS ACTIVITIES, WHICH HAS BEEN ASSES SED UNDER THE HEAD INCOME FROM BUSINESS. AT THE TIME OF HEARING, THE LEARNE D REPRESENTATIVE POINTED OUT THAT THE SAID EXPENSES ARE IN RELATION TO THE CRICKET GR OUND AND WANKHEDE STADIUM, INCOME WHEREFROM IS CONTAINED IN SCHEDULE 11 OF ANN UAL ACCOUNTS WHICH ARE REFLECTED AT PAGE 26 OF THE PAPER BOOK, AND THE SAM E HAS INDEED BEEN ASSESSED BY THE AO UNDER THE HEAD INCOME FROM BUSINESS; IT WA S POINTED OUT THAT SUCH AN INFIRMITY IN THE ASSESSMENT DID NOT AFFECT THE TOTA L INCOME AND, THEREFORE, THE ASSESSEE MADE NO GRIEVANCE ON THIS ASPECT. IT HAS ALSO BEEN STATED, THAT EVEN IN THE EARLIER ASSESSMENT YEARS 2009-10 AND 2010-11 IN THE ASSESSMENTS FINALIZED U/S. 143(3) OF THE ACT SUCH EXPENSES WERE ALLOWED U/S. 5 7 OF THE ACT. BE THAT AS IT MAY, IN OUR CONSIDERED OPINION, THE AFORESAID DOES NOT R EALLY TURN MUCH FOR OUR PURPOSE IN AS MUCH AS THE POINT TO BE ADDRESSED BY US IS WH ETHER THE EXPENSE OF ` 2,23,92,358/- RELATED TO THE PROPERTIES WHOSE INCOM E HAS BEEN ASSESSEE UNDER THE HEAD INCOME FROM HOUSE PROPERTY OR NOT. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE HAS ALSO REFERRED T O THE SCHEDULE OF FIXED ASSETS, WHICH BRINGS OUT THE VARIOUS PROPERTIES, INTER-ALIA , INCLUDING THE STADIUM BUILDING, ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 8 WANKHEDE STADIUM, CRICKET GROUND AND OTHER PROPERTI ES INCLUDING THE PROPERTIES FROM WHICH THE INCOME EARNED HAS BEEN ASSESSED UNDE R THE HEAD INCOME FROM HOUSE PROPERTY. CONSIDERING THE FACTUAL MATRIX WH ICH HAS BEEN BROUGHT OUT AND WHICH WAS VERY MUCH AVAILABLE BEFORE THE COMMISSION ER, IT DOES NOT JUSTIFY THE ASSERTION OF THE COMMISSIONER THAT THE EXPENDITURE OF ` 2,23,92,358/- RELATED TO THE INCOME ASSESSED BY THE ASSESSING OFFICER UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IN OUR CONSIDERED OPINION, THE COMMISSI ONER HAS BEEN INFLUENCED BY THE HEADING OF SCHEDULE 15 OF THE ANNUAL ACCOUNTS VIZ. EXPENDITURE IN RESPECT OF PROPERTY. IN ANY CASE, ONCE THE ASSESSEE HAD BROU GHT TO HIS NOTICE THE WRONG FACTUAL NOTION ENTERTAINED BY HIM AT THE TIME OF IS SUING THE SHOW CAUSE NOTICE, IT WAS IMPERATIVE FOR THE COMMISSIONER TO HAVE CONSIDE RED THE SAME IN AN APPROPRIATE MANNER. THOUGH THE COMMISSIONER IN PARA 4.1 OF HIS ORDER HAS SPECIFICALLY NOTED THIS SUBMISSION OF THE ASSESSEE BUT THERE IS NO NEG ATION OF THE SAME. THEREFORE, THE VERY FOUNDATION OF THE COMMISSIONER TO EMBARK O N THE EXERCISE OF INVOKING SECTION 263 BECOMES SUSCEPTIBLE TO ERROR. ADMITTED LY, THE COMMISSIONER HAS PROCEEDED TO SHOW CAUSE THE ASSESSEE ON THE GROUND THAT THE EXPENSES OF ` 2,23,92,358/- RELATE TO INCOME OF HOUSE PROPERTY AND, OSTENSIBLY, SUCH GROUND IS NOT COMPLIANT WITH THE FACT-SITUATION. 7. THERE IS ANOTHER ASPECT OF THE MATTER, WHICH NEE DS SOME ELABORATION. IN THE SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE, WHICH HAS BEEN REPRODUCED BY THE COMMISSIONER IN PARA 2 OF HIS ORDER, THE CHARGE POS ED AGAINST THE ASSESSEE WAS THAT THE EXPENDITURE OF ` 2,23,92,358/- RELATED TO INCOME FROM HOUSE PROPERT Y AND THUS, SHOULD NOT HAVE BEEN ALLOWED AS A DEDUCTION U /S 57 OF THE ACT AND, THUS, IT ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 9 WAS A CASE OF EXCESS DEDUCTION OF EXPENSES. PERTIN ENTLY, AFTER GOING THROUGH THE SUBMISSIONS FURNISHED BY THE ASSESSEE, THE COMMISSI ONER HAS CHANGED THE COURSE WHILE CONCLUDING THAT THE ASSESSMENT ORDER WAS ERRO NEOUS. IN HIS ORDER, COMMISSIONER CONCLUDES THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL FOR THE REASON THAT THE ASSESSING OFFICER HAD NOT GONE INTO THE WHOLE ASPECT OF THE CASE AND NOT ANALYSED THE THINGS PROPERLY AND, MORE OVER, NOT BROUGHT ON RECORD ALL THE RELEVANT FACTS AND DOCUMENTS TO ARRIVE AT A PRO PER CONCLUSION ON THE ISSUE OF ALLOWABILITY OF THE EXPENDITURE OF ` .2,23,92,358/-. THE COMMISSIONER FURTHER NOTES THAT THE ASSESSMENT ORDER WAS PASSED WITHOUT MAKING ENQUIRIES AND VERIFICATION, WHICH SHOULD HAVE BEEN MADE BEFORE ALLOWING DEDUCTI ON OF ` 2,23,92,358/-. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE ASSAILE D SUCH CONCLUSION OF THE COMMISSIONER BY REFERRING TO THE CONTENT OF THE ASS ESSMENT PROCEEDINGS. OUR ATTENTION WAS INVITED TO AN ANNEXURE TO NOTICE U/S. 142(1) OF THE ACT, COPY OF WHICH IS PLACED AT PAGE 3 OF THE PAPER BOOK, WHICH CONTAI NS QUERIES RAISED BY THE ASSESSING OFFICER, WHICH, INTER ALIA, INCLUDE CALLI NG FOR DETAILS ALONG WITH SUPPORTING EVIDENCES IN RESPECT OF EXPENDITURE INCURRED ON THE PROPERTY. REFERENCE WAS ALSO INVITED TO THE REPLY FURNISHED BY THE ASSESSEE, COP IES OF WHICH HAVE ALSO BEEN PLACED ON RECORD. A TABULATION HAS ALSO BEEN FILED SHOWING THAT SIMILAR CLAIM WAS ALLOWED IN ASSESSMENT YEARS 2009-10 AND 2010-11 ALS O, IN ASSESSMENTS MADE U/S. 143(3) OF THE ACT. IN OUR CONSIDERED OPINION, WHET HER OR NOT AN INQUIRY OR VERIFICATION OF AN ASPECT HAS BEEN CARRIED OUT IS M ATTER OF FACTUAL APPRECIATION AND IN THE PRESENT CASE, IT IS QUITE EVIDENT THAT THE ASSE SSING OFFICER HAS CALLED FOR THE RELEVANT MATERIAL. IN FACT, THE MANNER IN WHICH TH E ASSESSING OFFICER HAS DRAWN UP ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 10 THE TOTAL INCOME IN PARA 6 OF THE ASSESSMENT ORDER ALSO REFLECTS THAT HE HAS CONSIDERED THE MATTER APPROPRIATELY. IF ONE LOOKS AT THE COMPUTATION OF INCOME MADE UNDER THE HEAD INCOME FROM OTHER SOURCES, IT IS CLEAR THAT WHILE DETERMINING THE DEDUCTION U/S. 57 OF THE ACT , THE ASSESSING OF FICER TAKES UP THE FIGURE OF ` 7,95,34,044/-, WHICH WAS THE EXPENSES DEPICTED IN SCHEDULE 15 UNDER THE HEAD EXPENDITURE IN RESPECT OF PROPERTY AND HAS REDUCE D THEREFROM A SUM OF ` 5,71,41,686/- BEING PROPERTY TAX, AS THE SAME WAS CONSIDERED BY HIM SEPARATELY WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IN OUR CONSIDERED OPINION, THE QUERIES RAISED BY THE ASSES SING OFFICER AND THE MANNER IN WHICH HE HAS COMPUTED THE INCOME FINALLY IN PARA 6 OF THE ORDER CLEARLY POINTS OUT THAT HE WAS CONSCIOUS OF THE FACT THAT THE EXPENDIT URE IN QUESTION WAS NOT RELATED TO THE INCOME BEING ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY, AN ASPECT WHICH IS SUPPORTED BY THE FACT-SITUATION. T HEREFORE, THE CHARGE MADE BY THE COMMISSIONER IN THE ORDER THAT THE ASSESSMENT ORDER HAS BEEN MADE WITHOUT MAKING ENQUIRIES AND VERIFICATION IS FACTUALLY UNTE NABLE. 8. BEFORE PARTING, WE MAY ALSO REFER TO A SPECIFIC PLEA RAISED BY THE LEARNED CIT- DR THAT THE ASSESSMENT ORDER REFLECTED NON-APPLICAT ION OF MIND AS THE DETAILS OF ` .2,23,92,358/- WERE NOT VERIFIED BY THE ASSESSING O FFICER. IN OUR VIEW, THE AFORESAID ARGUMENT OF THE LEARNED CIT-DR IS DEVOID OF ANY FACTUAL SUPPORT SINCE WE HAVE ALREADY OBSERVED THAT DURING THE ASSESSMENT PR OCEEDINGS THE RELEVANT DETAILS WERE CALLED FOR BY THE ASSESSING OFFICER AND THE AP PRECIATION OF THE SAME BY HIM IS DULY REFLECTED IN THE MANNER IN WHICH HE COMPUTED T HE RESPECTIVE INCOMES UNDER ITA NO.3816/MUM/2016 M/S. MUMBAI CRICKET ASSOCIATION 11 THE HEAD INCOME FROM HOUSE PROPERTY AS WELL AS UN DER THE HEAD INCOME FROM OTHER SOURCES. 9. IN CONCLUSION, THEREFORE, WE ARE INCLINED TO HOL D THAT THE VERY BASIS ON WHICH THE COMMISSIONER HAS PROCEEDED TO INITIATE PROCEEDI NGS U/S. 263 OF THE ACT ON THE NOTION THAT THE EXPENSES OF ` 2,23,92,358/- RELATE TO THE INCOME ASSESSED UNDER T HE HEAD INCOME FROM HOUSE PROPERTY IS FACTUALLY UNF OUNDED AND, THEREFORE, THE IMPUGNED ORDER DATED 28.03.2016 IS UNTENABLE. WE H OLD SO. 10. AS A CONSEQUENCE, WE SET ASIDE THE ORDER OF THE COMMISSIONER AND RESTORE THE ASSESSMENT ORDER DATED 29.03.2014, IN SO FAR AS IT RELATES TO DEDUCTION OF EXPENSES OF ` 2,23,92,358/- 17. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 3 RD JUNE, 2017. SD/- SD/- (PAWAN SINGH) (G S PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 23 RD JUNE, 2017. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T , MUMBAI. 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI