JAYANT TIPNIS CONSULTANTS P. LTD, MUMBAI V. ITO 6(1)(1), MUMBAI

ITA 4626/MUM/2010

• Counselvise Citation: 462619914 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 18-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: PRAKASH PANDIT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, A ND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 4626/MUM./2010 (ASSESSMENT YEAR : 2006-07 ) M/S. JAYANT TIPNIS CONSULTANTS PVT. LTD., 1050, SADGURU DARSHAN NEW PRABHADEVI ROAD MUMBAI 400 025 PAN AAACJ2093H .. APPELLANT V/S INCOME TAX OFFICER WARD 6(1)(1), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBAI 400 020 .... RESPONDENT ASSESSEE BY : MR. PRAKASH PANDIT REVENUE BY : MR. S.K. SINGH DATE OF HEARING 18.11.2011 DATE OF ORDER 30.11.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL PREFERRED BY THE ASSESSEE, IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 26 TH FEBRUARY 2010, PASSED BY THE COMMISSIONER (APPEALS)-XIV, MUMBAI, FOR ASSESSMENT YEAR 2006-07. 2. BEFORE US, LEARNED COUNSEL, MR. PRAKASH PANDIT, ON BEHALF OF THE ASSESSEE, SUBMITTED THAT HE DID NOT WISH TO PRESS G ROUNDS NO.(II) TO (VI). ITA NO. 4626/MUM./2010 M/S. JAYANT TIPNIS CONSULTANTS 2 CONSEQUENTLY, THESE GROUNDS ARE DISMISSED AS NOT PRESSED . THIS LEAVES US WITH ONLY GROUND NO.(I), WHICH READS AS FOLLOWS:- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ON RELYING ON THE ORDER OF THE I TAT FOR ASSESSMENT YEARS 1994-95 AND 1998-99 ERRED IN REDUCING THE EST IMATE OF INCOME FROM HOUSE PROPERTY AND SADGURU DARSHAN FROM ` 24 LACS TO ` 12 LACS BY REJECTING THE APPELLANTS CONTENTION THAT INCOME FROM HOUSE PROPERTY SHOULD BE DETERMINED UNDER SECTION 23 OF T HE ACT. 3. AFTER HEARING BOTH THE PARTIES, WE FIND THAT MUMBAI J BENCH OF THIS TRIBUNAL IN ITA NO.5308 AND 5309/MUM./2008, FOR ASS ESSMENT YEARS 1994- 958 AND 1998-99, VIDE ORDER DATED 30 TH JUNE 2011, HELD AS FOLLOWS:- 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT TH E SHORT GRIEVANCE OF THE ASSESSEE IS THAT THE ASSESSEE IS ENTITLED TO CLAIM OF DEDUCTION U/S 24(X), AS IT WAS IN FORCE AT THE RELEVANT, POIN T, IN RESPECT 01 UNREALISED RENT. THIS CLAIM WAS DECLINED BECAUSE AS SESSEE HAS NOT BEEN ABLE TO ESTABLISH FACTUAL CONTENTIONS EMBEDDED IN HIS CLAIM, I.E., RENT ACTUALLY NOT HAVING BEEN REALIZED. HE, HOWEVER , SUBMITS THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR LATER ASSE SSMENT YEARS, ALL THE RELATED NECESSARY FACTS HAVE BEEN TAKEN ON RECO RD. IT IS, THEREFORE, PRAYED THAT THESE ASSESSMENTS MAY ALSO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIG HT OF EVIDENCES REGARDING RENTS NOT BEING REALIZED, AS HAVE BEEN EX AMINED BY THE ASSESSING OFFICER IN LATER YEARS AND AS ASSESSEE MA Y NOW PRODUCE. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT OPPOSE THIS SUGGESTION AND ACCEPTS THAT THIS ASPECT OF THE MATTER NEEDS TO BE EXAMINED AT THE LEVEL OF THE ASSESSING OFFICER. 4. IN VIEW OF THE ABOVE DISCUSSIONS AND BEARING IN MIND ENTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REMIT THE MA TTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE IN ACCORDAN CE WITH THE LAW AND BY WAY OF A SPEAKING ORDER. WHILE SO DECIDING THE M ATTER, THE ASSESSING OFFICER SHALL TAKE INTO ACCOUNT THE FACTS AND EVIDENCES, REGARDING RENT NOT BEING REALIZED, AS MY HAVE COME TO THE LIGHT IN FINALIZING ASSESSMENTS FOR OTHER YEARS. THE MATTER STANDS REALISED TO THE FILE OF ASSESSING OFFICER AS SUCH. 4. KEEPING IN VIEW THE AFORESAID FINDINGS OF THE CO-OR DINATE BENCH OF THIS TRIBUNAL, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR DENOVO ADJUDICATION. WHILE DOING SO, THE ASSESSING OFFICER SHALL CONSIDER THE ITA NO. 4626/MUM./2010 M/S. JAYANT TIPNIS CONSULTANTS 3 LEGAL ISSUE AS TO WHETHER THE ASSESSING OFFICER IS JUSTIFIED IN ESTIMATING THE ANNUAL LETTING VALUE OF THE PROPERTY AND BRINGING T HE SAME TO TAX IN CASES WHERE THE PROPERTY OF THE ASSESSEE HAS BEEN USURPED AND WHERE THE PROPERTY HAS NOT BEEN ACTUALLY LET OUT. WITH THESE OBSERVATIONS, THE GROUND RAISED BY THE ASSESSEE IS, ACCORDINGLY, DISPOSED OF F. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER 2011 SD/- VIJAY PAL RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH NOVEMBER 2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, I BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI