ACIT OSD -I CR 7, MUMBAI V. VIDHI DARSH RUIA, MUMBAI

ITA 5/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88011 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Department
• Bench Allotted: F
• Next Hearing Date: 07-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2013
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Assessee Lawyers: PRAMOD D RASSAN

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO. 5/M/2013 (AY 2009 - 2010) ACIT,OSD - 1, CR.7, R.NO.413, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 20. / VS. VIDHI DARSH RUIA, 6A SAMUDRA GAURAV APARTMENTS, ABDUL GARARKHAN ROAD, WORLI, MUMBAI 400 025. ./ PAN : AAUPR 4091 A ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JEETENDRA KUMAR / RESPONDENT BY : SHRI PRAMOD D. RASSAN / DATE OF HEARING : 30.12.2014 / DATE OF PRONOUNCEMENT : 14. 01.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 1.1.2013 IS AGAINST THE ORDER OF THE CIT (A) - 40, MUMBAI DATED 15.10.2012 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1.A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 27,14,976/ - MADE IN RESPECT OF THE CONCESSION RECEIVED BY THE ASSESSEE (DIRECTOR) BEING 50% OF THE ANNUAL RENT OF THE PROPERTY LET OUT B Y M/S. RAMGOPAL GANPATRAI AND SONS PVT LTD. B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN NOT APPRECIATING THE FACT THAT THE SAID CONCESSION IS SQUARELY COVERED BY SECTION 2(24)(IV) OF THE IT ACT, 1961. 3. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PARA 3.1 TO 3.3 OF THE IMPUGNED OR DER AND MENTIONED THE CIT (A) HE LD THAT THE FACTS RELEVANT TO THE AY UNDER CONSIDERATION ARE IDENTICAL TO THAT OF THE ONES ALREADY DECIDED FOR THE AYS 200 5 - 2006 AND 2008 - 2009. HE ALSO MENTIONED THAT WITH THE SAME ISSUE THE REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL FOR THE SAID AYS 2005 - 06 AND 2008 - 09 AND THE DECISION OF THE TRIBUNAL IS IN FAVOUR OF THE ASSESSEE. HE FURTHER MENTIONED 2 THAT THE ISSUE IS NOW APPEALED BEFORE THE TRIBUNAL ONLY ON THE GROUND THAT THE MATTER IS PENDING BEFORE THE HONBLE HIGH COURT. 4. ON THE OTHER HAND, LD DR RELIED ON THE ORDER OF THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AU THORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE SAID PARAGRAPHS 3.1 TO 3.3 OF THE CIT (A)S ORDER REFERRED BY THE LD COUNSEL WE FIND THE SAME ARE RELEVANT IN THIS REGARD. FOR THE SAKE OF COMP LETENESS OF THIS ORDER, THE SAID PARAS 3.1 TO 3.3 OF THE CIT (A)S ORDER ARE EXTRACTED WHICH READ AS UNDER: 3.1. THE FACTS OF THE CASE ARE THAT THE APPELLANT HAS HIRED FLAT SITUATED AT A, SAMUDRA GAURAV APARTMENT, ABDUL GAFARKHAN ROAD, WORLI, MUMBAI 400 0 25 FOR AN AMOUNT OF RS. 30,000/ - . THE APPELLANT IS DIRECTOR OF M/S. RAMGOPAL GANPATRAI & SONS PVT LTD (RGS). IN THE CASE OF COMPANY IT WAS HELD THAT IT HAS LET OUT THE PROPERTY AT THE CONCESSIONAL RATE AND THE ANNUAL RENTAL INCOME OF THE APPELLANT COMPAN Y WAS DETERMINED AT RS.49,36,320/ - . ON THIS BASIS 50% SHARE OF THE SAME IE RS. 24,68,160/ - WAS TREATED AS PERQUISITE IN THE HANDS OF THE APPELLANT. ON THE OTHER HAND, THE LD AR OF THE APPELLANT STATED THAT THE INHERITED THE TENANCY IN THE FLAT AS PER THE WILL OF HER LATE FATHER - IN - LAW SHRI B.R. RUIA. THE APPELLANT IS NOT A WHOLE TIME DIRECTOR OR AN EMPLOYEE OF THE COMPANY AND HAS NOT RECEIVED ANY SALARY OR REMUNERATION. THEREFORE, NO ADDITION CAN BE MADE BY WAY OF PERQUISITE. THE ASSESSING OFFICER FURTH ER NOTED THAT ALV WAS DETERMINED IN AY 2005 - 06 TO WHICH HE ADDED 10% AND TAXED THE SAME IN THE HANDS OF APPELLANT. ASSESSING OFFICER ALSO STATED ALTHOUGH ITAT IN APPELLANTS OWN CAS HAD DECIDED THE ISSUE IN ITS FAVOUR, BUT SINCE APPEAL BEFORE HIGH COURT I S PENDING AGAINST THE SAID DECISION AND HENCE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF ITAT. ACCORDINGLY, HE MADE THE ADDITION OF RS. 27,14,976/ - . 3.2. APPELLANT BEFORE ME REITERATED THE SUBMISSIONS BEFORE ASSESSING OFFICER AND STATED THAT THE ISSUE IS COVED BY THE DECISIONS OF CIT (A) AND ITAT IN EARLIER YEARS. COPY OF ORDERS OF HONBLE ITAT FOR AY 2005 - 2006 AND 2008 - 2009 HAVE BEEN FILED. 3.3. I HAVE GONE THROUGH THE ASSESSMENT ORDER, PERUSED THE SUBMISSION AND ALSO DISCUSSED WITH THE AR OF THE APPELL ANT. RESPECTFULLY FOLLOWING THE ITATS ORDER FOR EARLIER YEARS, THE FACTS REMAINING THE SAME, THE APPELLANTS APPEAL ON THIS GROUND IS ALLOWED. 6. THUS, FROM THE ABOVE IT IS EVIDENT THAT THE PROPERTY WHICH IS THE SUBJECT MATTER OF THE ISSUE UNDER CONSID ERATION IS ONE AND SAME AND THE TRIBUNAL HAS ALREADY HELD THAT THE PROVISIONS OF SECTION 2(24)(IV) OF THE ACT ARE NOT TO BE INVOKED IN THIS CASE. CONSIDERING THE JUDICIAL DISCIPLINE FOLLOWED BY THE CIT (A), WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE FIRST APPELLATE AUTHORITY. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 3 ORDER PRONOUNC ED IN THE O PEN COURT ON 1 4 T H JANUARY, 2015. S D / - S D / - (SANJAY GARG) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 4 .1.2015 . . ./ OKK , 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI