ASHOK ARJUNDEO JAGTAP, MUMBAI V. DCIT 26(1), MUMBAI

ITA 5148/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71381 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 13-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: N R AGRAWAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , & ./I.T.A. NO.5148/MUM/2012 ( / ASSESSMENT YEAR:2009-10) MR.ASHOK ARJUNDEO JAGTAP, A/101, 1 ST FLOOR, GAGANGIRI PREMISES, UNION PARK ROAD, OFF CARTER ROAD, BANDRA , KHAR (W), MUMBAI-400052 / VS. DY . COMMISSIONER OF INCOME TAX, 26(1), K.G.MITTAL HOSPITAL BUILDING, CHARNI ROAD, MUMBAI-400002 ./ ./PAN/GIR NO. : ACIPJ0216F ( / APPELLANT) .. ( / RESPONDENT) / APPELLANT BY : SHRI N R AGRAWAL /RESPONDENT BY : SH RI SURENDRA KUMAR ' / DATE OF HEARING : 1.10.2013 ' /DATE OF PRONOUNCEMENT : 1.10.2013 / O R D E R PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2009-10 AGAINST ORDER OF LD. CIT(A) DATED 11.7.2012. 2. ONLY ISSUE INVOLVED IN THIS APPEAL IS AS TO WHE THER LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY AO OF RS.5,71,200/ - UNDER THE HEAD INCOME FROM HOUSE PROPERTY FOR VACANT PROPERTIES AFTER CONSID ERING THE ESTIMATED INCOME AT RS.8,16,000/- 3. RELEVANT FACTS GIVING RISE TO THIS APPEAL ARE TH AT AO OBSERVED THAT THE ASSESSEE WAS HAVING THE FOLLOWING VACANT PROPERTIES WHICH WE RE NOT LET OUT AND ACCORDINGLY DETERMINED ANNUAL LET-ABLE VALUE U/S 23 (1) (A) OF THE INCOME TAX ACT, 1961 (THE ACT) AS UNDER : I.T.A. NO.5148/MUM/2012 2 S.NO. PROPERT IES AMOUNT IN RS. 1 BUNGALOW AT LONAVALA 1,80,000 2 HOUSE AT MURUD 1,20,000 3 HOUSE AT CHIPLUN 1,20,000 4 LAND & BLDG AT SRIVARDHAN 96,000 5 SHOP AT LINKING ROAD 3 ,00,000 LESS : 30% REDUCTION U/S 24(1) INCOME FROM HOUSE PROPERTY 8,16,000 2,44,800 5,71,200 IT IS RELEVANT TO STATE THAT THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A) THAT PROPERTIES AT SRIVARDHAN I.E. SR.NO.4 HEREINABOVE IS FARM-HOU SE ON AGRICULTURAL LAND AND HENCE SHOULD NOT BE TAXED. AO STATED THAT SECTION 22 OF THE ACT DOES EXEMPT THE FARM-HOUSE AND REJECTED THE CONTENTION OF THE ASSESSEE NOT TO TAX SRIVARDHAN BUILDING. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE FIR ST APPELLATE AUTHORITY. 4. LD. CIT(A) CONFIRMED THE ACTION OF AO STATING T HAT SIMILAR ISSUE WAS THERE IN RESPECT OF ASSESSMENT YEAR 2007-08 AND HE CONFIRMED THE ACTION OF AO. HENCE, THIS APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, LD. AR SUBMITTED THAT P ROPERTIES MENTIONED AT SR.NO.1 AND 3 I.E. BUNGALOW AT LONAVALA AND HOUSE AT CHIPUL AN FOR WHICH LET-ABLE VALUE HAS BEEN CONSIDERED BY AO RESPECTIVELY AT RS.1,80,000 /- AND RS.1,20,000/- ARE NOT PRESSED FOR. HOWEVER, IN RESPECT OF PROPERTIES MEN TIONED AT SR.NO.2 AND 4 HEREINABOVE I.E. HOUSE AT MURUD AND LAND AND BUILDING AT SRIVA RDHAN, LD. AR REFERRED PAGE 2 OF THE PAPER BOOK WHICH IS A COPY OF THE SUBMISSIONS MADE BEFORE LD. CIT(A) ON 16.6.2012 (FILED BEFORE LD. CIT(A) ON 20.6.2012) STATING THAT THE SAID PROPERTIES ARE AGRICULTURAL LAND AND FARM HOUSE AND HE SUBMITTED THAT ASSESSEE FILED 7/12 EXTRACT , COPIES OF WHICH ARE PLACED AT PAGES 4 AND 5 OF THE PAPER BOOK . LD. CIT(A) DID NOT CONSIDER THE SAID CONTENTION OF THE ASSESSEE AND CONFIRMED THE A CTION OF AO. HE FURTHER SUBMITTED THAT SHOP AT LINKING ROAD, THE PROPERTY MENTIONED AT SR.NO.5 HEREINABOVE, WAS A SHOP UNDER CONSTRUCTION AND THE PURCHASE OF THE SAID SHO P WAS CANCELLED IN ASSESSMENT YEAR 2010-11 AND ASSESSEE RECEIVED REFUND FROM THE BUI LDER. TO SUBSTANTIATE HIS SUBMISSIONS, HE REFERRED PAGE 23 OF THE APPEAL PAPE R, WHICH IS A LETTER DATED 3.8.2012. HE SUBMITTED THAT THE SAID LETTER COULD NOT BE FIL ED BEFORE LD. CIT(A) AS THE BUILDER DID NOT GIVE THIS LETTER AT THAT TIME AND THE SAID LETT ER WAS FURNISHED LATER ON. HE SUBMITTED THAT LET-ABLE VALUE CONSIDERED FOR THE SAID SHOP A T RS.3,00,000/- IS NOT JUSTIFIED AS THE ASSESSEE WAS NOT IN POSSESSION OF SHOP IN THE RELEV ANT ASSESSMENT YEAR. WHEN THE I.T.A. NO.5148/MUM/2012 3 ATTENTION OF THE LD. AR WAS DRAWN TO THE FACT THAT THAT LD. CIT(A) HAS RELIED ON THE DECISION OF ASSESSMENT YEAR 2007-08, LD. AR SUBMI TTED THAT IN THE PRECEDING ASSESSMENT YEAR, THE ASSESSEE DID NOT DISPUTE THE S AID ORDER BECAUSE OF HIS PERSONAL REASONS. HE SUBMITTED THAT IF THE MATTER IS RESTO RED TO THE AO/LD.CIT(A), THE ASSESSEE WILL FURNISH REQUISITE DETAILS THAT THE PROVISIONS OF SECTION 23(1) DO NOT APPLY TO THE PROPERTIES MENTIONED IN SR.NO.2,4 AND 5. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF LD. CIT(A). HOWEVER, HE DID NOT DISPUTE THE CONTENTION OF LD. AR THAT THE ASSESSEE FILED EXTRACT OF 7/12 IN RESPECT OF PROPERTIES MENTIONED ABOVE AT SR.NO.2 AND 4 THAT TH E SAME WAS AGRICULTURAL LAND. LD. DR ALSO DID NOT DISPUTE THE FACT THAT THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A), THAT SHOP IN THE ASSESSMENT YEAR UNDER CONSIDERATION, WH ICH IS MENTIONED AT SR.NO.5, WAS UNDER CONSIDERATION AND THE LD. CIT(A) HAD NOT GIVE N ANY REASON TO REJECT THE ABOVE CONTENTION OF ASSESSEE. 7. CONSIDERING THE FACTS OF THE CASE AND KEEPING I N VIEW THE SUBMISSIONS OF LD. REPRESENTATIVES OF THE PARTIES, WE CONSIDER IT FAIR AND REASONABLE TO RESTORE THE MATTER TO LD.CIT(A) TO CONSIDER AS TO WHETHER ANY LET-AB LE VALUE OF THE PROPERTIES MENTIONED AT SR.NO.2, 4 AND 5 U/S 23(1) HAVE TO BE CONSIDERE D IN THE ASSESSMENT YEAR UNDER CONSIDERATION AND IF SO, HE WILL DECIDE THE ISSUE A FTER GIVING DUE OPPORTUNITY TO THE ASSESSEE BY A SPEAKING ORDER. HOWEVER, WE MAY STAT E THAT THE LET-ABLE VALUE ESTIMATED BY AO IN RESPECT OF THE PROPERTIES MENTIONED AT SR .NO.1 AND 3 I.E PROPERTIES SITUATED AT LONAVALA AND HOUSE AT CHIPLUN ARE CONFIRMED. IN VI EW OF ABOVE THE GROUNDS OF APPEAL TAKEN BY ASSESSEE ARE ALLOWED IN PART AS INDICATED ABOVE FOR STATISTICAL PURPOSES BY RESTORING THE MATTER TO THE LD. CIT(A). 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES.. ORDER PRONOUNCED IN THE OPEN COURT ON THE 1 ST OCTOBER , 2013 ( * + 1 ST OCTOBER, 2013 SD SD ( /SANJAY ARORA) ( . . 1 /B.R.MITTAL) / ACCOUNTANT MEMBER ( / JUDICIAL MEMBER MUMBAI; . . ./ SRL , SR. PS I.T.A. NO.5148/MUM/2012 4 * +, -, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 2 ( ) / THE CIT(A)- 4. 2 / CIT 5. 3 5 , ' 5 , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , / ITAT, MUMBAI