MANJU R YAGNIK, MUMBAI V. DCIT CEN CIR OSD -1, MUMBAI

ITA 5303/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0426 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 09-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: BHARATH KUMAR LD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

ITA NO 5303/MUM/2015 MANJU R. YAGNIK ASSESSMENT YEAR-2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.5303/MUM/2015 ( / ASSESSMENT YEAR: 2012-13) MANJU R. YAGNIK B-1 MAHALAXMI CHAMBERS 22, BHULABHAI DESAI ROAD MUMBAI 400 026 / VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, OSD-1 ROOM NO.409 AAYKAR BHAVAN, M.K.ROAD MUMBAI -400 020 ! ./ ./PAN/GIR NO. AAMPY-6852-G ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : BHARATH KUMAR, LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 09/08/2017 / DATE OF PRONOUNCEMENT : 11/08/2017 ITA NO 5303/MUM/2015 MANJU R. YAGNIK ASSESSMENT YEAR-2012-13 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 ASSAILS THE ORDER OF LD. COMMISSIONER OF IN COME TAX (APPEALS)-52 [CIT(A)], MUMBAI DATED 28/08/2015 QUA CONFIRMATION OF CERTAIN ADDITION OF RS.1.75 LACS AGAINST HOUSE PROP ERTIES OWNED BY THE ASSESSEE. 2.1 BRIEFLY STATED, THE ASSESSEE, BEING RESIDENT IN DIVIDUAL HAS BEEN ASSESSED U/S 143(3) ON 25/03/2014 AT RS.1,00,74,980 /- AS AGAINST RETURNED INCOME OF RS.98,99,981/- FILED BY ASSESSEE ON 29/09/2012. THE ASSESSEE HAS SUFFERED SOLE ADDITION OF RS.1.75 LACS UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THE SAME IS THE SUBJECT MATTER OF THIS APPEAL. 2.2 DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THA T THE ASSESSEE OWNED FOUR PROPERTIES SITUATED AT VIOLA ALBA-FLAT NOS. 1301 TO 1304 JOINTLY WITH HER HUSBAND RAJESH YAGNIK AND CLAIMED THE SAME AS SELF- OCCUPIED HOUSE PROPERTY WHEREAS SHE WAS RESIDING AT FLAT NO. 601 SIDDHARTH APARTMENTS, OPP. VENUS SOCIETY, WORLI SEA FACE, MUMBAI. RESULTANTLY, THE LD. AO WHILE NOTING THAT THE SAID PROPERTIES AT VIOLA ALBA WERE IN JOINT OWNERSHIP WITH HER HUSBAND, TREATED O NE OF THE PROPERTY OUT OF FOUR AS SELF OCCUPIED PROPERTY AND TREATED THE OTHER THREE PROPERTIES AS DEEMED TO BE LET OUT AND ACCORDINGLY COMPUTED TH E FAIR RENTAL VALUE OF THE SAME AS RS.2.50 LACS AGAINST ASSESSEES ONE HAL F SHARE. THUS, THE ITA NO 5303/MUM/2015 MANJU R. YAGNIK ASSESSMENT YEAR-2012-13 3 NET ADDITION SUFFERED BY THE ASSESSEE AMOUNTED TO R S.1.75 LACS AFTER PROVIDING FOR STATUTORY DEDUCTION @30%. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 28/08/2 015. THE LD. CIT(A) JUSTIFIED THE ACTION OF LD. AO BY OBSERVING THAT THE PROPERTIES WERE FOUR DISTINCT FLATS AND THEREFORE, RIGHTLY BRO UGHT TO TAX. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR ASSESSEE [AR] DREW OUR ATTEN TION TO THE FACT THAT THE ISSUE STOOD COVERED BY THE ORDER OF THIS T RIBUNAL IN ASSESSEES OWN CASE FOR AY 2009-10, 2010-11 & 2011-12 VIDE ITA NO. 5425, 5430 & 5431/MUM/2014 DATED 25/05/2016 WHERE THE MATTER H AS BEEN RESTORED BACK TO THE FILE OF LD. AO TO ASCERTAIN CE RTAIN FACTS. A COPY OF THE SAME HAS BEEN PRODUCED BEFORE US. THE LD. DR FA IRLY CONCEDED THE SAME. 5. UPON PERUSAL OF THE CITED TRIBUNAL ORDER, WE CO NCUR WITH THE ASSERTION OF LD. AR SINCE THE MATTER HAS BEEN RESTO RED TO LD. AO BY THE TRIBUNAL IN THE FOLLOWING MANNER:- 4 FROM THE RECORD WE FOUND THAT FOUR SMALL UNITS WE RE PURCHASED BY ASSESSEE AND AFTER REMOVING THE INTERNAL WALL, WHICH WAS CON VERTED INTO ONE COMMERCIAL TO RESIDENTIAL FOR PERSONAL PURPOSE OF ASSESSEE, HOWEV ER, THE AO DID NOT ACCEPT ASSESSEE'S CONTENTION AND HELD THAT FOUR UNITS WERE PURCHASED BY ASSESSEE, THEREFORE, HAS TO BE CONSIDERED AS A SEPARATE UNITS AND DECLINED PART OF THE ASSESSEE'S CLAIM ON ACCOUNT OF SELF-OCCUPIED PROPER TY. 5. LD. AR PLACED ON RECORD ORDER OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2009-2010 I.E. RAJESH YAGNIK, ITA N O.1340/MUM/2015, ORDER DATED 12-1-2016. 6. WE HAD CAREFULLY GONE THROUGH THE ORDER OF TRIBU NAL, WHEREIN ON SIMILAR FACTS THE TRIBUNAL OBSERVED AS UNDER:- '2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MUCH DELIBE RATION AND CONSIDERING THE FACTS AND THE ARGUMENTS ASSERTED FROM BOTH SIDES, T HE FACTUAL MATRIX IS NOT COMING OUT WHETHER IT IS ONE RESIDENTIAL UNIT (AS H AS BEEN CLAIMED BY THE ASSESSEE) OR FOUR SEPARATE RESIDENTIAL UNITS (AS HA S BEEN CLAIMED BY THE LD. ITA NO 5303/MUM/2015 MANJU R. YAGNIK ASSESSMENT YEAR-2012-13 4 DR), THEREFORE, THE LD. ASSESSING OFFICER IS DIRECT ED TO EXAMINE FACTUAL MATRIX AND THEN DECIDE IN ACCORDANCE WITH LAW IT IS OBSERV ED THAT IF THE INTERNAL WALL OF DIFFERENT UNITS HAS BEEN REMOVED AND THE FIATS H AVE BEEN CONVERTED INTO ONE RESIDENTIAL UNIT THEN CERTAINLY NO ADDITION IS WARRANTED. IF IT IS FOUND THAT THESE ARE SEPARATE UNITS AND INTERNAL WALLS HAS NOT BEEN REMOVED AND IN FACT IT IS FOUND THAT THESE ARE FOUR INDEPENDENT UNITS, THEN THE ADDITION SO MADE BY THE REVENUE IS JUSTIFIED. THEREFORE, THE LD. ASSESS ING OFFICER IS DIRECTED TO EXAMINE THE FACTS AND THEN DECIDE IN ACCORDANCE WIT H LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD AND ALSO TO EXPLAI N THE TRUE FACTS. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES.' 7. AS THE FACTS AND CIRCUMSTANCES BEFORE US ARE SIM ILAR, RESPECTFULLY FOLLOWING THE ORDER OF TRIBUNAL, WE SET ASIDE THE MATTER BACK TO THE FILE OF AO FOR DECIDING AFRESH IN TERMS OF DIRECTION GIVEN BY THE TRIBUNAL. THERE BEING NO CHANGE IN FACTS OR CIRCUMSTANCES, RE SPECTFULLY FOLLOWING THE SAME, WE ALSO DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF LD. AO WITH SIMILAR DIRECTIONS. 6. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE ST ANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 11. 08.2017 SR.PS:- THIRUMALESH ITA NO 5303/MUM/2015 MANJU R. YAGNIK ASSESSMENT YEAR-2012-13 5 ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI