SHAILAJA S. HEMDEV, MUMBAI V. JCIT RG 19(3), MUMBAI

ITA 531/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0578 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH OJHADR

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -EBENCH MUMBAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND RAM LAL NEGI,JUDICIAL MEMBER ./I.T.A./531/MUM/2015, /ASSESSMENT YEAR: 2011-12 MS. SHAILAJA S. HEMDEV 12/13 TH FLOOR, BELAIR APARTMENT, UNION PARK, BANDRA (W),MUMBAI-400 050. PAN:ABBPH 2668 D VS. JT. CIT,RANGE-19 (3) ROOM NO.3102, 3 RD FLOOR, B-WING, MITTAL COURT NARIMAN POINT,MUMBAI-400 021. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI RAJESH OJHA-DR ASSESSEE BY: SHRI YOGESH THAR / DATE OF HEARING: 30.05.2017 / DATE OF PRONOUNCEMENT: 02.06.2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER,DATED 16.12.2014,OF THE CIT(A )-34 MUMBAI THE ASSESSEE HAS FILED THE PRESENT APPEAL .ASSESSEE,AN INDIVIDUAL,IS A PARTNER IN M/S. ACCESS INTERNATIONAL. HE FILED HIS RETURN OF INCOME ON 30.09.2011,DECLARING TOTAL INCO ME AT RS.1.45 CRORES. THE ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT ON 21/02/2014 , U/S.143(3) OF THE ACT,DETERMINING ITS INCOME AT RS.1.57 CRORES.THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE IS THE CLAIM FOR DEDUCTION OF MAINTENANCE CHARGES (RS.1.78 LAKHS + R S.5.64 LAKHS +RS.70.717/-) IN RESPECT OF LET OUT PROPERTIES WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IT WAS BROUGHT TO OUR NOTICE THAT IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ORDER DT.24/6/15(ITA/55/MUM/2014 ). WE AR E REPRODUCING THE FACTS OF THE CASE AND THE OPERATIVE PART OF THE ORDER AND IT READS AS UND ER:- 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PE RUSED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND A PARTNER IN ACCESS INTERNATIONAL. D URING THE COURSE OF SCRUTINY ASSESSMENT, THE AO FOU ND THAT ASSESSEE HAS NOT TAKEN ALV OF FLAT SITUATED IN PEACE HEAVEN HOUSING COOPERATIVE SOCIETY LTD. ACCORDINGLY, HE COMPUTED THE ALV, WHEREIN HE HAS TA KEN HIGHEST RANGE RENT OBTAINED FROM THE SOCIETY. I N APPEAL, THE ADDITIONAL MADE BY THE AO WAS CONFIRMED BY THE CIT(A), AGAINST WHICH ASSESSEE IS IN FURTHE R APPEAL BEFORE US. 3. IT WAS CONTENDED BY LD. AR THAT ON THE PRINCIPLE OF PROVISIONS OF SECTION 23(2), THE AO SHOULD NOT HAVE TAKEN THE ALV OF ONE HOUSE OUT OF VARIOUS HOUSES OW NED BY THE ASSESSEE. AS AN ALTERNATE HE SUBMITTED THAT THE MUNICIPAL RATABLE VALUE OF THE SAID FLAT S HOULD BE TAKEN AS ALV INSTEAD OF RENT OF OTHER FLAT S ADOPTED BY THE AO. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT ASSESSEE HAS OFFERED INCOME FROM HOUSE PROPERTY IN RESPECT OF FOUR FLATS. HOWEVER, NO ALV WAS OFFERED IN RESPECT OF HOUSE SITUATED IN PEACE HEAVE HOUSING COOPERATIVE SOCIETY LTD.. AS PER PROV ISIONS OF SECTION 23(2), A HOUSE OR PART OF THE HOU SE 531/M/15(11-12) SHAILAJA SUNIL HEMDEV 2 WHICH IS IN THE OCCUPATION OF THE OWNER FOR THE PUR POSE OF HIS OWN RESIDENCE, SHOULD BE TAKEN AT NIL O R A HOUSE WHICH CANNOT ACTUALLY BE OCCUPIED BY THE OWNE R BY THE REASON OF THE FACT THAT OWING TO HIS EMPLOYMENT, BUSINESS OR PROFESSION CARRIED ON AT AN Y OTHER PLACE, HE HAS TO RESIDE AT OTHER PLACE IN A BUILDING NOT BELONGING TO HIM. AS PER LD. AR, THE A O SHOULD NOT HAVE TAKEN ALV OF THIS HOUSE WHILE COMPUTING THE INCOME FROM HOUSE PROPERTY. EVEN THOU GH BEFORE THE CIT(A) THE ASSESSEE ITA NOS.55&410/14 3 HAS MADE THE CONTENTION THAT ANNUAL VALUE OF THIS FLAT NEEDS TO BE CONSIDERED AS NIL UNDER SECTION 23(2) OF THE ACT. HOWEVER, THERE IS N O SPECIFIC MENTION THAT THIS FLAT WAS EITHER USED B Y THE ASSESSEE FOR HIS RESIDENCE OR COULD NOT BE USED DUE TO HIS OCCUPATION AT ANY OTHER PLACE. IN THE INTER EST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF AO AN D DIRECT THE AO NOT TO TAKE ANNUAL VALUE AT NIL IF HE FINDS THAT OUT OF THE VARIOUS FLAT OWNED BY IT, HE HAS TA KEN ALV OF ALL THE FLATS EXCEPT ONE FLAT, VALUE OF WHICH WILL BE TAKEN U/S.23(2) OF THE I.T.ACT. WE DIRECT A CCORDINGLY. 5. THE NEXT GRIEVANCE OF THE ASSESSEE RELATES TO NO N-DEDUCTION OF MAINTENANCE CHARGES WHILE COMPUTING ALV. THE ISSUE IS COVERED BY THE FOLLOWING DECISION S OF HONBLE DELHI HIGH COURT AS WELL AS COORDINATE BENCH : I) ALOO BEJAN DAVER VS. ITO, ITA NO.2381/M/ 10 II) CIT VS. R.J.WOOD P.LTD. (20 TAXMANN.COM 599)(DEL HC) III) SHARMILA TAGORE VS. JCIT(150 TAXM AN 4); IV) REALTY FINANCE & LEASING PVT. LTD. (5 SOT 3448); V) ITO VS. GOPICHAND GODHWANI (1 SOT 374 ) VI) VARMA FAMILY TRUST (7 ITD 392); AND VII) BOMBAY OIL INDUSTRIES VS. DCIT (82 ITD 626) WHEREIN IT HAS BEEN HELD THAT MAINTENANCE CHARGES IS DEDUCTIBLE WHILE COMPUTING ANNUAL VALUE UNDER THE H EAD INCOME FROM HOUSE PROPERTY. RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE DIRECT THE AO TO ALLOW MAINTENANCE CHARGES WHILE COMPUTING ANNUAL LETTING VALUE. RESPECTFULLY FOLLOWING THE SAME WE DECIDE THE SOLIT ARY GROUND IN FAVOUR OF THE ASSESSEE,AS THE FACTS OF THE CASE UNDER APPEAL ARE IDENTICAL TO THE FACTS OF ASSESSMENT YEAR 2009-10. AS A RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED . . ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND JUNE, 2017. 02 , 2017 SD/- SD/- ( / RAM LAL NEGI ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 02.06 .2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR E BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.