DCIT 9(3)(2), MUMBAI V. SARITA GARWARE, MUMBAI

ITA 4410/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0868 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 22-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR A K NAYAK
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI C.N.PRASAD, JUDICIAL MEMBER ITA NO.4410/MUM/2015 (AY. 2012-13) THE DCIT 9(3)(2), 418, 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020 ...... APPELLANT VS. MRS. SARITA SHASHIKANT GARWARE (RAMSAY), O-1&2,EDEN HALL, DR.ANNIE BESANT ROAD, WORLI, MUMBAI 400 018 .... RESPONDENT APPELLANT BY : DR.A.K.NAYAK RESPONDENT BY : SHRI VIJAY MEHTA DATE OF HEARING : 05/04/2017 DATE OF PRONOUNCEMENT : 26/04/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTA INING TO ASSESSMENT YEAR 2012-13 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-16, MUMBAI DATED 29/04/2015, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 25/09/2014. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE REA D AS UNDER:- I) 'WHETHER ON THE FACTS, AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S 54 WHEN THE ASSESSE HAS ACTUALLY PURCHASED 4 DIFFERENT FLATS BEARING DISTINCTIVE NUM BERS 901, 902, 1001 AND 1002, AND NO EVIDENCE BROUGHT ON RECORD BY ASSE SSE THAT THERE IS A 2 ITA NO.4410/MUM/2015 (AY. 2012-13) COMMON PASSAGE, COMMON KITCHEN TO SHOW THAT ALL 4 F LATS MAKE ONE RESIDENTIAL UNIT.' II) 'THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY'. III) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT (A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE DCIT 9(3)(2) BE RESTORED. 3. AT THE OUTSET, IT WAS A COMMON SUBMISSION MADE B Y BOTH THE PARTIES THAT THE GROUND OF APPEAL HAS NOT BEEN APPROPRIATEL Y WORDED, INASMUCH AS, IT REFERS TO THE ISSUE OF DEDUCTION UNDER SECTION 5 4 OF THE ACT, WHEREAS IN ACTUALITY, THE ISSUE RELATES TO THE DETERMINATION O F ANNUAL VALUE UNDER SECTION 23(1)(A) OF THE ACT, WITH RESPECT TO THE PR OPERTY STATED IN THE GROUNDS OF APPEAL. 4. IN THIS BACKGROUND, WE MAY NOW REFER TO THE FACT S IN RELATION TO THE CONTROVERSY BEFORE US. THE ASSESSEE INDIVIDUAL WAS FOUND TO BE OWNER OF THE FOLLOWING PROPERTIES:- (I) 1 FLAT BEING NO. L-1, EDEN HALL, DR. ANNIE BE SANT ROAD, WORLI, MUMBAI 400 018. (II) 4 FLATS BEING NO.901, 902, 101 & 1002, RAHEJA EMPRESS, VEER SAVARKAR ROAD, PRABHADEVI, MUMBAI 400 028. IN SO FAR AS, THE PROPERTY AT ITEM NO.(I) IS CONCER NED, THE ANNUAL VALUE OF THE SAME WAS DECLARED BY THE ASSESSEE AS A DEEMED LET- OUT PROPERTY AT RS.2,42,866/-, WHICH WAS ACCEPTED BY THE ASSESSING OFFICER AND THERE IS NO DISPUTE ON THIS COUNT. WITH RESPECT TO THE PROPERT Y AT ITEM NO.(II) ABOVE, THE ASSESSEE TREATED THE FOUR FLATS AS A SINGLE RESIDEN TIAL HOUSE AND DECLARED IT AS HER SELF OCCUPIED PROPERTY. ON THIS ASPECT, THE AS SESSING OFFICER HAS DIFFERED WITH THE ASSESSEE AND, THIS IS THE SUBJECT-MATTER OF CONTROVERSY BEFORE US. 3 ITA NO.4410/MUM/2015 (AY. 2012-13) THE ASSESSING OFFICER NOTED THE STAND OF THE ASSES SING AUTHORITY IN THE PRECEDING ASSESSMENT YEAR 2011-12, WHEREIN ASSESSE E HAD RECEIVED SALE CONSIDERATION ON SALE OF A RESIDENTIAL PROPERTY, WH ICH WAS USED FOR PURCHASING THE AFORESAID FOUR FLATS AT PRABHADEVI, MUMBAI AND DEDUCTION UNDER SECTION 54 OF THE ACT WAS CLAIMED, TREATING T HE FOUR FLATS AS A SINGLE RESIDENTIAL HOUSE. ON THE SAME ANALOGY, IN THE INS TANT ASSESSMENT YEAR, THE ASSESSING OFFICER TREATED ONLY ONE OF THE FOUR FLAT S AT PRABHADEVI AS A SELF OCCUPIED PROPERTY AND THE ANNUAL VALUE OF THE BALAN CE THREE FLATS WAS DETERMINED CONSIDERING THEM AT DEEMED LET-OUT PREM ISES. IN THIS VIEW OF THE MATTER, AN ADDITION OF RS.1,17,73,203/- WAS MAD E UNDER THE HEAD INCOME FROM HOUSE PROPERTY ON ACCOUNT OF THE ANNU AL LETTING VALUE OF THE THREE FLATS IN PRABHADEVI. 5. THE CIT(A) HAS SINCE DELETED THE ADDITION AND HE LD THAT THE FOUR FLATS IN PRABHADEVI CONSTITUTE A SINGLE RESIDENTIAL HOUSE A ND UPHELD THE PLEA OF THE ASSESSEE OF TREATING IT AS SELF-OCCUPIED PROPERTY. NOTABLY, THE DECISION OF THE CIT(A) WAS IN CONSONANCE WITH THE ORDER OF THE CIT( A) FOR ASSESSMENT YEAR 2011-12, WHEREIN THE FOUR FLATS PURCHASED IN PRABHA DEVI WERE CONSTRUED AS A RESIDENTIAL HOUSE AND IT WAS HELD THAT INVESTMENT THEREOF WAS ELIGIBLE FOR THE DEDUCTION UNDER SECTION 54 OF THE ACT . IN THI S VIEW OF THE MATTER, REVENUE IS IN APPEAL BEFORE US. 6. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2011-12, WHICH HA S BEEN RELIED UPON BY THE FIRST APPELLATE AUTHORITY, HAS SINCE BEEN AFFIRMED BY THE TRIBUNAL VIDE ITA NO.2737/MUM/2015 DATED 18/01/2017, THEREFORE, THE I MPUGNED STAND OF THE CIT(A) DESERVES TO BE AFFIRMED. IT WAS ALSO A COMMON POINT BETWEEN THE PARTIES THAT THE ORDER OF THE TRIBUNAL DATED 18/01 /2017(SUPRA) CONTINUES TO 4 ITA NO.4410/MUM/2015 (AY. 2012-13) HOLD THE FIELD AND THE SAME HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. AT THE TIME OF HEARING, OUR ATTENTION WAS DRAWN TO THE DETAILED DISCUSSION MADE BY THE TRIBUNAL IN ITS ORDER DATED 18/01/2017(SUPR A). WE FIND THAT THE TRIBUNAL UPHELD THE STAND OF THE ASSESSEE THAT THE FOUR FLATS IN PRABHADEVI WERE TO BE REGARDED AS SINGLE RESIDENTIAL UNIT, CONSIDERING THE FACTS OF THE CASE. IN VIEW OF THE AFORESAID PRECEDENT, WE FIND NO ERROR ON THE PART OF THE CIT(A) FOR HAVING CONSIDERED THE FOUR FLATS AT PRAB HADEVI AS A SINGLE RESIDENTIAL HOUSE, FOR THE PURPOSES OF ASSESSMENT UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THUS, THE ORDER OF THE CIT(A ) IS HEREBY AFFIRMED AND REVENUE FAILS IN ITS APPEAL. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 26/04/20 17 SD/- SD/- (C.N.PRASAD ) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 26/04/2017 VM , 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. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI