Gopal Chowdhury, Kolkata V. ITO, Ward 52(2), Kolkata

ITA 391/KOL/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2487 (ITAT-KOLKATA)
• Duration Of Justice: 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-10-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 04-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: K M ROY
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A (SMC) BENCH, KOLKATA (BEFORE SRI SANJAY GARG, JUDICIAL MEMBER) I.T.A. NOS. 391 & 392/KOL/2021 ASSESSMENT YEARS: 2013-14 & 2014-15 GOPAL CHOWDHURY................................................................................................................APPELLANT [PAN: AABPC 2004 R] VS. ITO, WARD-52(2), KOLKATA............................................................................................RESPONDENT APPEARANCES BY: SH. K.M. ROY, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SH. JAYANTA KHANRA, JCIT, SR. D/R, APPEARED ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 28 TH , 2021 DATE OF PRONOUNCING THE ORDER : OCTOBER 28 TH , 2021 ORDER PER SANJAY GARG, JUDICIAL MEMBER : THE CAPTIONED APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS DATED 12.08.2020 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-16, KOLKATA [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THOUGH THE REGISTRY HAS POINTED OUT THAT THE APPEAL IS TIME BARRED, HOWEVER, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT DATED 23.09.2021 IN THE CASE OF MISCELLANEOUS APPLICATION NO. 665 OF 2021 IN SMW(C) NO. 3 OF 2020 , THE PERIOD OF FILING APPEAL DURING THE COVID-19 PANDEMIC IS TO BE EXCLUDED FOR THE PURPOSE OF COUNTING THE LIMITATION PERIOD. IN VIEW OF THIS, APPEALS ARE TREATED AS FILED WITHIN THE LIMITATION PERIOD. 3. THE SOLE ISSUE INVOLVED IN BOTH THESE APPEALS IS RELATING TO THE ESTIMATION OF ANNUAL RENTAL VALUE OF THE TWO PROPERTIES OF THE ASSESSEE. FIRST PROPERTY IS AT BUNGALOW NO. 40BC, SURABHI COMPLEX, RAICHAK AND THE OTHER PROPERTY IS AT P-70, LAKE ROAD, KOLKATA. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN THE IMPUGNED APPELLATE ORDER DATED 12.08.2020 FOR THE ASSESSMENT YEAR (HEREINAFTER THE AY) 2013-14, THE LD. CIT(A) HAS ASSESSED THE ANNUAL RENTAL VALUE AT 60,000/- OF RAICHAK PROPERTY WHICH HAS BEEN ACCEPTED BY THE ASSESSEE. HOWEVER, FOR THE AY 2014- 2 I.T.A. NOS. 391 & 392/KOL/2021 ASSESSMENT YEARS: 2013-14 & 2014-15 GOPAL CHOWDHURY. 15, THE LD. CIT(A) DID NOT CONSIDER THE ABOVE ORDER FOR AY 2013-14 AND SIMPLY UPHELD THE ORDER OF THE AO ESTIMATING THE RENTAL VALUE OF RAICHAK PROPERTY AT 2,40,000/-. THAT NO DISCUSSIONS HAVE BEEN MADE BY THE LD. CIT(A) IN HIS ORDER FOR AY 2014-15 IN RESPECT OF THE EARLIER ESTIMATION OF NOTIONAL VALUE OF 60,000/- IN RESPECT OF RAICHAK PROPERTY FOR THE AY 2013-14. 4. THE LD. D/R HAS NOT CONTROVERTED ONE FACT REGARDING THE ESTIMATION OF ANNUAL RENTAL VALUE OF 60,000/- OF RAICHAK PROPERTY BY THE LD. CIT(A) FOR THE AY 2013-14. 5. IN VIEW OF THIS, AS PER THE FINDING ARRIVED AT BY THE LD. CIT(A) FOR THE AY 2013-14, THE ANNUAL RENTAL VALUE OF THE RAICHAK PROPERTY IS TAKEN AS 60,000/- PER ANNUM. 5.1. SO FAR AS THE ANOTHER PROPERTY AT LAKE ROAD, KOLKATA IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE HAS PRODUCED ON RECORD THE ASSESSMENT ORDER FOR THE AY 2013-14 IN THE CASE OF SHRI AMIT CHOWDHARY, THE SON OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN RESPECT OF THE LAKE ROAD PROPERTY, THE ENTIRE ANNUAL RENTAL VALUE HAS BEEN ASSESSED IN THE HANDS OF THE SON OF THE ASSESSEE. HE HAS FURTHER BROUGHT MY ATTENTION TO THE ORDER OF THE LD. CIT(A) FOR THE AY 2014-15 WHEREIN THE LD. CIT(A) HAS TAKEN NOTE OF THE FACT THAT THE ANNUAL RENTAL VALUE OF THE LAKE ROAD PROPERTY HAS BEEN ASSESSED IN THE HANDS OF THE ASSESSEE. THE LD. CIT(A) HAS GIVEN THE FOLLOWING DIRECTION TO THE AO: IN GROUND NO. 5, IT HAS BEEN CONTENDED THAT THE NOTIONAL RENT HAS ALREADY BEEN ASSESSED IN THE HANDS OF AMIT CHOWDHARY. THE AO IS DIRECTED TO VERIFY THE SAME, GIVE THE CREDIT TO THE ASSESSEE, IF IT IS A JOINT PROPERTY AND PART HAS BEEN ALREADY ASSESSED AS NOTIONAL INCOME IN THE HANDS OF SON. HENCE, THIS GROUND IS PARTLY ALLOWED. 5.2. THE LD. COUNSEL FOR THE ASSESSEE IN THIS RESPECT HAS SUBMITTED THAT THE ENTIRE ANNUAL RENTAL VALUE OF THE LAKE ROAD PROPERTY HAS BEEN ASSESSED IN THE NAME OF SHRI AMIT CHOWDHARY, THE SON OF THE ASSESSEE, AS HE IS PRESENTLY ENJOYING THE PROPERTY AND THE SAME IS IN HIS POSSESSION AND HE IS RECEIVING THE RENT FROM THE PROPERTY. I FIND THAT IN THE ASSESSMENT ORDER FOR THE AY 2013-14 IN THE CASE OF SHRI AMIT CHOWDHARY, THE ENTIRE ANNUAL RENTAL VALUE OF THE LAKE ROAD PROPERTY HAS BEEN TAKEN INTO CONSIDERATION FOR ASSESSING THE INCOME OF SHRI AMIT CHOWDHARY, SON OF THE ASSESSEE. IN VIEW OF THIS, NO ADDITION IS WARRANTED IN THE CASE OF THE ASSESSEE FOR THE SAME PROPERTY AS IT WOULD AMOUNT TO DOUBLE TAXATION OF THE ANNUAL RENAL VALUE. IN VIEW OF THE ABOVE OBSERVATIONS, IT IS DIRECTED THAT THE ANNUAL RENTAL VALUE OF THE RAICHAK PROPERTY BE TAKEN FOR BOTH THE 3 I.T.A. NOS. 391 & 392/KOL/2021 ASSESSMENT YEARS: 2013-14 & 2014-15 GOPAL CHOWDHURY. ASSESSMENT YEARS AT 60,000/- PER ANNUM AND NO ADDITION IS WARRANTED IN RESPECT OF THE LAKE ROAD PROPERTY IN THE HANDS OF THE ASSESSEE AS THE ANNUAL RENTAL VALUE OF THIS PROPERTY HAS ALREADY BEEN CONSIDERED IN THE HANDS OF THE SON OF THE ASSESSEE. WITH THE ABOVE OBSERVATIONS, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE STAND ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.10.2021. SD/- [SANJAY GARG] JUDICIAL MEMBER DATED: 28.10.2021 BIDHAN (P.S.) COPY OF THE ORDER FORWARDED TO: 1. GOPAL CHOWDHURY, 44A, JATIN DAS ROAD, DESHAPRIYA PARK, KOLKATA-700 029. 2. ITO, WARD-52(2), KOLKATA. 3. CIT(A)-16, KOLKATA. (SENT THROUGH MAIL) 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. (SENT THROUGH MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR/DDO ITAT, KOLKATA BENCHES