MANJU R. YAGNIK, MUMBAI V. CIT 20, MUMBAI

ITA 5431/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3535 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-08-2014
• Court: TRIBUNAL
• Department Lawyers: N P SINGH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH , JM ./ ITA NO S . 5425 , 5430&5431 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 09 - 10 , 2011 - 12 & 2010 - 11 ) MANJU R YAGNIK, B - 1, MAHALAXMI CHAMBERS , 22 BHULABHAI DESAI ROAD, MUMBAI - 400026 VS. DCIT(OSD) - 1, CC - 7, MUMBAI - 400020 ./ ./ PAN/GIR NO. : A A MPY 6852 G ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO. 542 6 / MUM/20 14 ( / ASSESSMENT YEAR : 2010 - 11 ) RAJESH A YAGNIK, 601 , SIDDHARTH APARTMENTS, RG THADANI MARG, WORLI, MUMBAI - 400018 VS. DCIT(OSD) - 1, CC - 7, MUMBAI - 400020 ./ ./ PAN/GIR NO. : A A Q PY 1369 Q ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SH RI VIMAL PUNMIYA /REVENUE BY : SHRI N.P.SINGH / DATE OF HEARING : 21 /0 3 /2016 / DATE OF PRONOUNCEMENT 25/05 /201 6 / O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEAL S FILED BY THE DIFFERENT ASSESSEE S AGAINST THE ORDER OF CIT(A) - MUMBAI, FOR THE ASSESSMENT YEAR S 20 09 - 10 TO 20 1 1 - 1 2. 2. COMMON GRIEVANCE OF THE ASSESSEE RELATES TO CONFIRMING THE ADDIT ION OF RS.1,40,000/ - MADE BY THE AO BY ALLOWING ONLY PART OF THE ITA NO. 5425 ,5426 & 5430&5431/ 1 4 2 HOUSE AS SELF OCCUPIED HOUSE PROPERTY WITHOUT ANY PROPER AND JUSTIFIABLE REASONS. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. BRIEFL Y STATED. THE FACTS OF THE CASE ARE T H AT THE ASSESSEE IS A VICE CHAIRPERSON OF NAHAR GROUP. SHE IS A DIRECTOR IN THREE COMPANIES. VIZ. M/S. NAHAR BUILDERS & DEVELOPERS LTD .. M/S. HINDUSTAN TYRES PVT. LTD. AND M/S.VED FINANCE PVT. LTD. BESIDES. THE ASSESSEE IS A SHAREHOLDER IN TWO COMPANIES. VIZ. M/S . HIPEAK IMPEX PVT. LTD. AND M/S. NAHAR CONSTRUCTION PVT. LTD AND IS ALSO A PARTNER IN THE FIRM M/S. VIJAYA TEXTILES. THE ASSESSEE FILED HER RETURN OF INCOME FOR THE YE AR UNDER CONSIDERATION U/S.139(1) OF THE ACT ON 30/11/2009. DECLARING TOTAL INCOME OF RS .1,07,40,591/ - . SUBSEQUENTLY A SEARCH ACTION U/S.132( 1) OF THE ACT AND SURVEY ACTIONS U/S.133A, OF THE ACT WERE CONDUCTED ON 'NAHAR GROUP' OF CASES ON 2/2/2012. AND ASSESSEE 'S PREMISES AT 601, SIDDHARTH APARTMENTS. OPP. VENUS SOCIETY. MUMBA I WAS ALSO COVER ED U/S.132 OF THE ACT. IN PURSUANCE OF THE SEARCH ASSESSEES CASE WAS ASSIGNED TO THE AA. WHO ISSUED A NOTICE U/S.153A OF THE ACT ON 13/9/2012. IN RESPONSE TO THE SAID NOTICE. THE ASSESSEE FILED A RETURN OF INCOME ON 10/10/2012. DECLARING TOTAL UNDISCLOSED INCOME AT RS.2.23.81,302/ - . THEREAFTER. ASSESSMENT PROCEEDINGS WERE TAKEN UP AND THE AO NOTICED THAT AS PER ASSESSEES BALANCE SHEET , SHE OWNED FLAT NOS.1301, 1302 , 1303 , 1304 , 1401 , 1402 , 1403 & 1404 AT VIOLA. ALBA. NAHAR AMRIT SHAKTI. CHANDIVALI. ANDHER I(EAST), MUMBA I JOINTLY WITH HER HUSBAND SHRI RAJESH YAGNIK. WHILE FLAT NOS.1401 TO 1404 HAD BEEN LET OUT AND INCOME FROM THESE PROPERTIES ITA NO. 5425 ,5426 & 5430&5431/ 1 4 3 HAD BEEN OFFERED TO TAX. THE APPELLANT HAD CLAIMED THE JOINTLY OWNED FLAT NOS.130 1 TO 1304. WHICH CONSTITUTED FOUR HO USE PROPERTIES AS SELF - OCCUPIED. THE AO OBSERVED THAT THE ASSESSEE WAS RESIDING AT ANOTHER FLAT NO.601. SIDDHARTH APARTMENTS , WORLI SEAFACE , MUMBA I WHICH WAS C OVERED UNDER THE SEARCH AND SHE HAD NOT BROUGHT ANY MATERIAL ON RECORD IN SUPPORT OF HER CLAIM TH E FLAT NOS.130 1 TO 1304 W ERE SELF - OCCUPIED. BEFORE THE AO . THE ASSESSEE CONTENDED THAT THE FOUR FLATS CONSTITUTED ONE HOUSE PRO PERTY AND THEREFORE, SHE WAS ENTITLED TO CLAIM THE SAID FLATS AS SOP. HOWEVER, THE AO REJECTED THE CONTENTION OF THE ASSESSEE A ND TREATED ONLY FLAT NO.130 1 AS SOP AND THEN ESTIMATED THE ANNUAL VALUE IN RESPECT OF FLAT NOS.1302 TO 1304 AT RS.2 , 00 , 000/ - IN THE HANDS OF THE APPELLANT (50%) CONSIDERING THE RENT FETCHED IN RESPECT OF FLAT NOS. 140 1 TO 1404 IN THE SAME BUILDING, WHICH W ERE ALSO JOINTLY OWNED BY THE ASSESSEE WITH HER HUSBAND AND WERE LET OUT. ACCORDINGLY, THE AO COMPUTED ASSESSEES INCOME FROM THESE PROPERTIES AT RS.1,40,000/ - , AFTER ALLOWING STATUTORY DEDUCTION U/S.24 OF THE ACT @ 30% AT RS.60,000/ - , AND THE SAID AMOUNT WAS ADDED TO ASSESSEES TOTAL INCOME. 4. FROM THE RECORD WE FOUND THAT FOUR SMALL UNITS WERE PURCHASED BY ASSESSEE AND AFTER REMOVING THE INTERNAL WALL, WHICH WAS CONVERTED INTO ONE COMMERCIAL TO RESIDENTIAL FOR PERSONAL PURPOSE OF ASSESSEE, HOWEVER, THE AO D ID NOT ACCEPT ASSESSEES CONTENTION AND HELD THAT FOUR UNITS WERE PURCHASED BY ASSESSEE, THEREFORE, HAS TO BE CONSIDERED AS A SEPARATE UNITS AND DECLINED PART OF THE ASSESSES CLAIM ON ACCOUNT OF SELF - OCCUPIED PROPERTY. ITA NO. 5425 ,5426 & 5430&5431/ 1 4 4 5. LD. AR PLACED ON RECORD ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 - 2010 I.E. RAJESH YAGNIK, ITA NO.1340/MUM/2015, ORDER DATED 12 - 1 - 2016. 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 AVAIL A BLE ON RECORD. WITHOUT GOING INTO MUCH DELIBERATION AND CONSIDERING THE FACTS AND THE ARGUMENTS ASSERTED FROM BOTH SIDES, THE FACTUAL MATRIX IS NOT COMING OUT WHETHER IT IS ONE RESIDEN TIAL UNIT (AS HAS BEEN CLAIMED BY THE ASSESSEE) OR FOUR SEPARATE RESIDENTIAL UNITS (AS HAS BEEN CLAIMED BY THE ID. DR), THEREFORE, THE ID. ASSESSING OFFICER IS DIRECTED TO EXAMINE FACTUAL MATRIX AND THEN DECIDE IN ACCORDANCE WITH LAW. IT IS OBSERVED THAT I F 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 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 ID. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE FACTS AND THEN DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEIN G 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 PURPOSE S. 7. AS THE FACTS AND CIRCUMSTANCES BEFORE US ARE SIMILAR, 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. 8 . IN THE RESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . O RDER PRONOUNCED IN THE OPEN CO URT ON THIS 25/05 / 201 6 . SD/ - ( PAWAN SINGH ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 25/05 /201 6 . . /PKM , . / PS ITA NO. 5425 ,5426 & 5430&5431/ 1 4 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//