RAJESH A YAGNIK, MUMBAI V. DCIT CEN CIR OSD -1, MUMBAI

ITA 5302/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3094 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 09-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Opportunity of being heard
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH , MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR , AM ITA NO . 53 02 /MUM/201 5 (A.Y:2010 - 11 ) RAJESH A. YAGNIK, 601, SIDDHARTH APARTMENTS, R. G. THADANI MARG, WORLI, MUMBAI 400 018 PAN: AAOPY 1369Q VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - OSD - 1, ROOM NO.409, 4 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 APPELLANT .. RESPONDENT APPELLANT BY .. SHRI VIMAL PUNMIYA, AR RESPONDENT BY .. SHRI B. S. BIST, SR. DR DATE OF HEARING .. 22 - 09 - 2016 DATE OF PRONOUNCEMENT .. 22 - 09 - 2016 O R D E R PER MAHAVIR SINGH , JM : THIS APPEAL OF THE ASSESSEE IS ARISING OUT OF THE ORDER OF THE CIT (APPEALS) - 52 , MUMBAI IN APPEAL NO. CIT (A) - 52 / D C / AC - CC - 44)/6/2014 - 15 DATED 31 - 08 - 2015 . ASSESSMEN T WAS F RAMED BY THE D C IT , CENTRAL CIRCLE , OSD - 1 , MUMBAI FOR ASSESSMENT YEAR 20 10 - 11 U/S 14 3(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) VIDE HIS ORDER DATED 25 - 03 - 2014 . 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF THE CIT (A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN TAKING ALV OF SELF - OCCUPIED HOUSE PROPERTY. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.1: - 1) THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.1,75,000/ - MADE BY THE A O BY ALLOWING ONLY PART OF THE HOUSE AS SELF OCCUPIED HOUSE PROPERTY WITHOUT ANY PROPER AND JUSTIFIABLE BASIS. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE FILED A COPY OF THE TRIBUNALS ORDER IN ASSESSEES OWN CASE FOR ASSESSME NT YEAR 2009 - 10 IN ITA NO.1340/MUM/2015 DATED 12 - 01 - 2016, WHEREIN THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE A O IN EARLIER YEAR VIDE PARA 6 AS UNDER: - 6. WE HAD CAREFULLY GONE THROUGH THE ORDER OF TRIBUNAL, WHEREIN ON SIMILAR FACTS THE TRIBUNAL OBSERVED AS UNDER: - 2.1 I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MUCH ITA NO. 53 02 /MUM/20 1 5 2 DELIBERATION AND CONSIDERING THE FACTS AND THE ARGUMENTS ASSERTED FROM BOTH SIDES, THE FACTUAL MATRIX IS NOT COMING OUT WHETHER IT IS ONE RESIDENTIAL UNIT (AS HAS BEEN CLAIMED BY THE ASSESSEE) OF FOUR SEPARATE RESIDENTIAL UNITS (AS HAS BEEN CLAIMED BY THE LD. DR), THEREFORE, THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE FACTUAL MATRIX AND THEN DECIDE IN ACCOR DANCE WITH LAW. IT IS OBSERVED THAT IF THE INTERNAL WALL OF DIFFERENT UNITS HAS BEEN REMOVED AND THE FLATS HAVE BEEN CONVERTED INTO ONE RESIDENTIAL UNIT THEN CERTAINLY NO ADDITION IS WARRANTED. IF IT IS FOUND THAT THESE ARE SEPARATE UNITS AND INTERNAL WALL S HAS NOT BEEN REMOVED AND IN FACT IT IS FOUND THAT THESE ARE FOUR INDEPENDENT UNITS, THEN THE ADDITION SO MADE BY T HE REVENUE IS JUSTIFIED. THEREFORE, THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE FACTS AND THEN DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD AND ALSO TO EXPLAIN THE TRUE FACTS. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL AND TAKING A CONSISTENT VIEW, WE ALSO RESTORE BACK THE ISSUE TO THE FILE OF THE A O EXACTLY ON SAME LINE. THE A O WILL REFRAME THE ASSESSMENT IN TERMS OF THE TRIBUNALS DIRECTION. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22 - 09 - 2016 . SD/ - (RAJESH KUMAR ) ACCONTANT MEMBER MUMBAI, DATED: 22 - 09 - 2016 LAKSHMIKANTA DEKA/SR.PS SD/ - ( MAHAVIR SINGH ) JUDICIAL MEMBER ITA NO. 53 02 /MUM/20 1 5 3 BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI SR.NO. PARTICULARS DATE INITIALS MEMBER CONCERNED 1 DICTATION GIVEN ON 22 /09/16 LK DEKA JM 2 DRAFT PLACED BEFO RE AUTHOR 22 /09/16 3 DRAFT PROPOSED/PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR.PS 6 KEPT FOR PRONOUNCEMENT ON 7 FILE SENT TO THE BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FI LE. //TRUE COPY//