VIRENDRA JAIKUMAR JAIN, MUMBAI V. DCIT CEN CIR 39, MUMBAI

ITA 3964/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3183 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 30-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S SENT H IL KUMARAN
• Section: 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER IT A NO. 3964 /MUM/201 4 : (A.Y : 20 10 - 1 1 ) VIRENDRA JAIKUMAR JAIN 82, MAKER CHAMBERS III, NARIMAN POINT, MUMBAI 400021. PAN : AA BPJ1882E ( APPELLANT ) VS. DCIT, CENTRAL CIRCLE - 39, MUMBAI (RESPONDENT) IT A NO. 3833 /MUM/201 4 : (A.Y : 20 10 - 1 1 ) ACIT, CENTRAL CIRCLE - 39, MUMBAI ( APPELLANT ) VS. VIRENDRA JAIKUMAR JAIN 82, MAKER CHAMBERS III, NARIMAN POINT, MUMBAI 400 021. PAN : AA BPJ1882E ( RESPONDENT ) ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SHRI S. SENTHIL KUMARAN DATE OF HEARING : 07 /0 6 /2016 DATE OF PRONOUNCEMENT : 15 /0 6 /2016 O R D E R PER G.S. PANNU , AM : THESE ARE CROSS - APPEALS FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDER OF CIT(A) - 4 1 , MUMBAI DATED 28 .0 2 .201 4 , PERTAINING TO THE ASSESSMENT YEAR 20 1 0 - 11 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 03 .12.20 12 UNDER SECTION 1 43(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2 VIRENDRA JAIKUMAR JAIN ITA NO. 3964 & 3833/MUM/2014 2. IN THE CAPTIONED APPEALS , THE SOLITARY COMMON ISSUE RELATES TO THE DETERMINATION OF ANNUAL LETTING VALUE (ALV) OF THE PROPERTY OWNED BY THE ASSESSEE AT CENTRAL GARDEN COMPLEX, CHUNABHATTI. 3. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE WHILE EXPLAINING THE BACKGROUND OF THE DISPUTE POINTED OUT THAT THE ASSESSEE WAS OWNING A FLAT AT CENTRAL GARDEN COMPLEX, CHUNABHATTI WHICH WAS VACANT DURING THE YEAR AND ACCORDINGLY, THE ALV WAS OFFERED ON THE BASI S OF THE MUNICIPAL RATABLE VALUE OF RS. 3,86,376/ - . THE ASSESSING OFFICER, HOWEVER, DETERMINED THE ALV AT RS.68,36,502/ - WHICH WAS PURPORTED TO BE BASED ON THE MARKET VALUE. IN THE APPELLAT E PROCEEDINGS BEFORE THE CIT(A), ASSESSEE SUCCEEDED IN ITS PLEA TH AT THE ALV IS TO BE BASED ON THE MUNICIPAL RATABLE VALUE. SO HOWEVER, THE CIT(A) CONSIDERED THE MUNICIPAL RATABLE VALUE OF RS.3,86,376/ - AS THE BASE AND THEREAFTER ENHANCED IT TO RS.4,63,651/ - ON THE GROUND THAT THE MUNICIPAL AUTHORITIES HAD NOT REVISED S UCH RATABLE VALUE SINCE 2006 - 07. ACCORDINGLY, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO ADOPT THE ALV OF THE SAID FLAT AT RS.4,63,651/ - AS AGAINST RS.68,36,502/ - CONSIDERED IN THE ASSESSMENT ORDER. 4. IN THIS BACKGROUND, THE ASSESSEE IS IN APPEAL CHAL LENGING THE ENHANCEMENT OF THE MUNICIPAL RATABLE VALUE TO RS.4,63,651/ - AS AGAINST RS. 3,86,376/ - FOR THE PURPOSE OF DETERMINING THE ALV WHEREAS THE REVENUE IS IN APPEAL CON TENDING THAT THE ALV BE DETERMINED ON THE BASIS OF THE MARKET VALUE AS DETERMINED B Y THE ASSESSING OFFICER AT RS.68,36,502/ - . 3 VIRENDRA JAIKUMAR JAIN ITA NO. 3964 & 3833/MUM/2014 5. IN THE ABOVE BACKGROUND, THE LEARNED REPRESENTATIVE POINTED OUT THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR OF 2009 - 10 SIMILAR ISSUE WAS INVOLVED IN THE ASSESSEES OWN CASE AND VIDE ORDER IN ITA NO. 2116 /MUM/2012 DATED 12.8.2015, THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR DE NOVO ADJUDICATION. THE LEARNED REPRESENTATIVE, HOWEVER, MADE A DETAILED SUBMISSION POINTING OUT THAT THE TRIBUNAL IN ITS ORDER DATED 12.8.2015 (SUPRA) HAS UNJUSTLY DEPARTED FROM VARIOUS DECISIONS OF THE TRIBUNAL IN THE CASE OF OTHER FAMILY MEMBERS OF THE ASSESSEE WHEREIN THE STAND OF THE ASSESSEE THAT ALV IS TO BE DETERMINED ON THE BASIS OF THE MUNICIPAL RATABLE VALUE HAS BEEN UPHELD . THE LEARNED REPRESENTA TIVE HAS ENUMERATED THE FOLLOWING DECISIONS , WHICH ARE IN THE CASE OF THE OTHER FAMILY MEMBERS OF THE ASSESSEE (OUT OF WHICH SOME OF THEM WERE BEFORE THE BENCH) , AND IT IS ALSO POINTED OUT THAT SOME OF THE DECISIONS RELATE TO THE FLATS OWNED AT SIMILAR PREMISES, I.E., CENTRAL GARDEN COMPLEX, CHUNABHATTI. THE LIST OF SUCH DECISIONS IS AS UNDER : - SR. NO. NAME OF ASSESSEE RELATION WITH ASSESSEE A.Y ITA NO. DATE OF ORDER 1 HARSH JAIN NEPHEW 2009 - 10 2710/M/2013 17.07.2015 2 ANAND JAIN BROTHER 2009 - 10 2709/M/13 17.04.2015 3 LAXMI JAIN SISTER - IN - LAW 2009 - 10 2118/M/12 26.11.2014 4 LAXMI JAIN SISTER - IN - LAW 2010 - 11 4831/M/14(A) & 4726/M/14 (D) 04.02.2016 5 SATYAPAL JAIN BROTHER 2009 - 10 2120/M/12 21.01.2016 6 SATYAPAL JAIN BROTHER 2008 - 09 2119/M/12 20.01.2016 7 SATYAPAL JAIN BROTHER 2006 - 07 2719/M/13 26.11.2015 8 SATYAPAL JAIN BROTHER 2007 - 08 2718/M/13 26.11.2015 9 RAMETIDEVI JAIN MOTHER 2005 - 06 2006 - 07 3268/M/2011 3269/M/2011 25.04.2012 4 VIRENDRA JAIKUMAR JAIN ITA NO. 3964 & 3833/MUM/2014 6. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT SOME OF THE SAID DECISIONS WERE RELIED UPON BEFORE THE COORDINATE BENCH FOR THE ASSESSMENT YEAR 2009 - 10 BUT THE SAME HAVE BEEN DISTINGUISHED AND ONE OF THE POINTS OF DISTINCTION NOTED BY THE BENC H IS THAT IN THE CASE OF THE ASSESSEE THE ASSESSING OFFICER WAS GUIDED BY THE REPORT OF THE INSPECTOR WHEREAS IN THE CASE OF OTHER FAMILY MEMBERS, THERE WAS NO SUCH REPORT OF THE INSPECTOR. IN THIS CONTEXT, THE LEARNED REPRESENTATIVE HAS TAKEN US THROUGH THE DECISION IN THE CASE OF SOME OF THE FAMILY MEMBERS, VIZ. SMT. LAXMI JAIN (ITA NO. 2 118 /M/201 2 DATED 26 . 11 .201 4 (SUPRA) TO POINT OUT THAT IN THE SAID CASE ALSO THE ASSESSING OFFICER HAD RELIED UPON A SIMILAR REPORT OF THE INSPECTOR , WHICH WAS RELIED UPO N IN THE CASE OF ASSESSEE . INSPITE OF THAT, THE TRIBUNAL IN THE CASE OF SMT. LAXMI JAIN (SUPRA) HELD THAT THE ALV IS TO BE DETERMINED ON THE BASIS OF THE MUNICIPAL RATABLE VALUE. IN THIS MANNER, THE LEARNED REPRESENTATIVE POINTED OUT THAT THE TRIBUNAL VI DE ITS ORDER DATED 12.8.2015 (SUPRA) FOR ASSESSMENT YEAR 2009 - 10 HAS WRONGLY REMANDED THE MATTER BACK TO THE FILE OF ASSESSING OFFICER INSTEAD OF DECIDING THE ISSUE BASED ON MUNICIPAL RATABLE VALUE BY NOTICING A POINT OF DISTINCTION WHICH WAS, IN FACT, NOT PREVALENT. 7. THE LD. DR , ON THE OTHER HAND, VEHEMENTLY POINTED OUT THAT THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE OUGHT TO PREVAIL. 8. HAVING CONSIDERED THE RIVAL STANDS, IN OUR CONSIDERED OPINION, IT WOULD BE IN THE FITNESS OF THINGS THAT TH E MATTER BE REMANDED BACK TO THE FILE OF ASSESSING OFFICER FOR A DE NOVO ADJUDICATION ON THE ISSUE OF DETERMINATION OF ALV PRIMARILY FOR THE REASON THAT FOR THE IMMEDIATELY 5 VIRENDRA JAIKUMAR JAIN ITA NO. 3964 & 3833/MUM/2014 PRECEDING ASSESSMENT YEAR OF 2009 - 10, SIMILAR ISSUE HAS BEEN RESTORED BACK TO THE F ILE OF ASSESSING OFFICER AND IS STILL PENDING FOR FINAL ADJUDICATION. SO, HOWEVER, WE HAVE ALSO PERUSED THE DECISION OF THE TRIBUNAL DATED 12.8.2015 (SUPRA) IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009 - 10 IN THE LIGHT OF THE ARGUMENTS SET - UP BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE. WE MAY CLARIFY HERE THAT IT WOULD BE OPEN FOR ASSESSEE TO DEMONSTRATE BEFORE THE ASSESSING OFFICER THAT THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER IN THE PRESENT CASE, NAMELY, REPORT OF THE INSPECTOR, WAS A LSO CONSIDERED IN THE CASE OF OTHER FAMILY MEMBERS WHICH HAVE SINCE BEEN ADJUDICATED BY THE TRIBUNAL. THE ASSESSING OFFICER SHALL CONSIDER SUCH PLEA OF THE ASSESSEE AS WELL AS OTHER PLEAS IN SUPPORT OF THE RETURNED INCOME ON THIS POINT AND THE SAME SHALL BE ADJUDICATED BY HIM AFRESH IN ACCORDANCE WITH LAW. 9. IN THE RESULT, ORDER OF THE CIT(A) IS SET - ASIDE AND MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER TO DECIDE AFRESH AS PER LAW. 10. RESULTANTLY, APPEAL S OF THE ASSESSEE AS WELL AS THAT OF THE REVENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 T H JUNE, 2016. SD/ - SD/ - ( SANJAY GARG ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 5 T H JUNE , 2016 *SSL* 6 VIRENDRA JAIKUMAR JAIN ITA NO. 3964 & 3833/MUM/2014 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, F BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI