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

ITA 5308/MUM/2008

• Counselvise Citation: 530819914 RSA 2008
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 21-06-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 21-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: PRAKASH PANDIT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.5308/MUM/2008 (A.Y. 1994-1995) ITA NO.5309/MUM/2008(A.Y. 1998-1999) M/S JAYANT TIPNIS CONSULTANTS PVT. LTD., SADGURU DARSHAN, 1050, NEW PRABHADEVI ROAD, MUMBAI-400 023. PAN: AAACJ 2093H VS. INCOME TAX OFFIER, WD 6(1)-(1), AYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 023. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAKASH PANDIT, A.R. RESPONDENT BY : SHRI S.K. SINGH, D.R. O R D E R PER PRAMOD KUMAR: THESE TWO APPEALS PERTAIN TO THE SAME ASSESSEE, IN VOLVE A COMMON ISSUE ARISING OUT OF SAME SET OF FACTS AND WERE HEA RD TOGETHER. AS A MATTER OF CONVENIENCE, BOTH OF THESE APPEALS ARE BE ING DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. COMMON GRIEVANCE IN BOTH THESE APPEALS, AS PRESS ED BEFORE US, IS AS FOLLOWS:- ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED CIT (A) ERRED IN NOT GRANTING RELI EF U/S. 24(X) OF THE INCOME TAX ACT, 1961, ON ACCOUNT OF ITA NO. 5308 /M/2008(A.Y.1994-95) ITA NO. 5309/M/2008 (A.Y.1998-99) 2 UNREALIZED RENT AS THE LEGAL PROCEEDINGS AGAINST M/ S PRABODHAN PRAKASHAN, PHULORA PRINTERS & RAJ PROCESS WOULD HAVE BEEN USELESS AS PER RULE 4(D) OF THE I.T . RULES, 1962, IN VIEW OF THE PECULIAR CIRCUMSTANCES OF THE CASE NAM ELY THAT THE SAID THREE CONCERNS SINCE 1988 WHERE OCCUPYING THE PROPERTY WITHOUT PAYING ANY RENT AND WERE PAYING REGULARLY THE MUNICIPAL TAXES DIRECTLY TO TH E M.C.G.M. AS IF THREE OF THEM WERE COLLECTIVELY OWNE RS OF THE PROPERTY OCCUPIED BY EACH OF THEM. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT T HE 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 POINT, IN RESPECT OF UNREALISED RENT. THIS CLAIM WAS DECLINED BECAUSE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH FACTUAL CONTENTIONS EMBEDDED IN HIS CLAIM , I.E., RENT ACTUALLY NOT HAVING BEEN REALIZED. HE, HOWEVER, SUBMITS THA T IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR LATER ASSESSMENT YEARS, ALL THE RELATED NECESSARY FACTS HAVE BEEN TAKEN ON RECORD. IT IS, THEREFORE, PRAYED THAT THESE ASSESSMENTS MAY ALSO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIGHT OF EVID ENCES REGARDING RENTS NOT BEING REALIZED, AS HAVE BEEN EXAMINED BY THE ASSESS ING OFFICER IN LATER YEARS AND AS ASSESSEE MAY NOW PRODUCE. LEARNED DEP ARTMENTAL REPRESENTATIVE DOES NOT OPPOSE THIS SUGGESTION AND ACCEPTS THAT THIS ASPECT OF THE MATTER NEEDS TO BE EXAMINED AT THE LE VEL 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 GIV ING YET ANOTHER ITA NO. 5308 /M/2008(A.Y.1994-95) ITA NO. 5309/M/2008 (A.Y.1998-99) 3 OPPORTUNITY OF HEARING TO THE ASSESSEE IN ACCORDANC E WITH THE LAW AND BY WAY OF A SPEAKING ORDER. WHILE SO DECIDING THE MATT ER, THE ASSESSING OFFICER SHALL TAKE INTO ACCOUNT THE FACTS AND EVIDE NCES, REGARDING RENT NOT BEING REALIZED, AS MY HAVE COME TO THE LIGHT IN FIN ALIZING ASSESSMENTS FOR OTHER YEARS. THE MATTER STANDS RELEASED TO THE FIL E OF THE ASSESSING OFFICER AS SUCH. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 30 TH DAY OF JUNE, 2011. SD/- SD/- VIJAY PAL RAO PRAMOD KUMAR JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 30 TH JUNE, 2011. OKK* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- VI, MUMBA I 4. COMMISSIONER OF INCOME TAX, CONCERNED 5. DEPARTMENTAL REPRESENTATIVE, BENCH J, MUMBAI TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI