ITO 2(2)(4), MUMBAI V. PHOTOGRAVURS (I) . P. LTD, MUMBAI

ITA 5527/MUM/2011

• Counselvise Citation: 552719914 RSA 2011
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 27-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: JITENDRA SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.5527/MUM/2011 ASSESSMENT YEAR 2008-09 INCOME TAX OFFICER 2(2)(4), 542, AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI 400 020. VS. PHOTOGRAVURS (I) P. LTD., SHETH CHAMBERS, 1 ST FLOOR, 21, DR. V.B. GANDHI MARG, FORT, MUMBAI-400 023. PAN: AAACP 4088L (APPELLANT ) (RESPONDENT) REVENUE BY : SHRI D.S. SUNDER SINGH, DR ASSESSEE BY : SHRI JITENDRA SINGH DATE OF HEARING : 14-06-2012 DATE OF PRONOUNCEMENT : 20-06-2012 ORDER PER RAJENDRA, A.M. THIS APPEAL WAS FILED AGAINST THE ORDER DT. 27-05- 2011 OF THE CIT(A)-5, MUMBAI ON THE FOLLOWING GROUNDS: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING ASSESSEES APP EAL WITHOUT ADJUDICATING THE DETAILED EVIDENCES GATHERED BY THE A.O. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING THE ASSESSEE S APPEAL ON THE BASIS OF HONBLE ITATS DECISION IN ITS OWN CASE VI DE NO. 1813/MUM/2011 WHEREIN ORDER WAS PASSED IGNORING THE OBSERVATIONS OF LD. CIT(A) AND THE SAME IS BEING C HALLENGED BEFORE THE HONBLE BOMBAY HIGH COURT. ITA NO.5527/MUM/2011 PHOTOGRAVURS (I) P. LTD., 2 III. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASID E AND THAT OF THE AO RESTORED. FACTS OF THE CASE- 2. ASSESSEE COMPANY IS DERIVING INCOME FROM DOING HARD CHROMIUM PLATING ON TEXTILES, EMBOSSING ROLLERS, MI RROR ROLLERS, MACHINERY PARTS ETC. AND RENT FROM ITS BUILDING PRE MISES AT WORLI. RETURN OF INCOME WAS FILED ON 26.09.2008 DECLARING NET LOSS OF 1.85 LAKHS. ASSESSMENT ORDER PASSED ON 22-12-2010 BY TH E ASSESSING OFFICER (AO) U/S. 143 (3) OF THE I.T.ACT 1961(ACT) DETERMINING THE TOTAL INCOME AT RS.1.55 CRORES. PASSING THE ASSESSMENT OR DER AO HELD THAT THE FACTS AND THE CIRCUMSTANCES OF THE CASE UNDER C ONSIDERATION AND FOR THE A.Y.2007-08 WERE IDENTICAL-INCLUDING THE LE T OUT AREA AND THE TENANTS OF THE PROPERTY IN QUESTION. FOLLOWING THE ASSESSMENT ORDER FOR THE A.Y.2007-08 HE INVOKED THE PROVISIONS OF SE C.23(1)(A) OF THE ACT TO DETERMINE THE TAXABLE RENT OF THE ASSESSEE. ACCO RDINGLY, HE ASSESSED TAXABLE PROPERTY INCOME AT RS. 1,57,64,800/- AS AGA INST RS.30,130/- DISCLOSED BY THE APPELLANT. 3. ASSESSEE PREFERRED AN APPEAL AGAINST THE SAID ORDER . FIRST APPELLATE AUTHORITY (FAA) FOLLOWING THE DECISION OF ITAT MUMBAI (ITA NO. 1813/MUM/2011DATED 27.04.2011-A.Y.2007-08) DECI DED THE ISSUE IN FAVOUR OF THE APPELLANT. HE HELD THAT IN VIEW OF THE FACT THAT THE ADDITION MADE DURING THE YEAR WAS FULLY BASED O N THE FINDINGS OF THE AO IN ORDER FOR A.Y.2007-08 ON THE SAME SET OF FACTS AND CIRCUMSTANCES, THAT THE SAME HAD BEEN KNOCKED OFF C OMPLETELY BY THE ABOVE ORDER OF THE TRIBUNAL, THAT THE VERY FOUNDATI ON OF THE ADDITION WAS NOT MORE IN EXISTENCE. FOLLOWING THE SAID ORDE R OF THE TRIBUNAL, HE DIRECTED THE AO TO REPLACE THE RENTAL INCOME EST IMATED BY HIM BY INCOME DISCLOSED BY THE ASSESSEE. 4. BEFORE US, DR FAIRLY CONCEDED THAT THE ISSUE WAS CO VERED IN FAVOUR OF THE APPELLANT BY THE ORDER OF THE TRIB UNAL PASSED FOR THE EARLIER A.Y.(A.Y.2007-08). AR SUBMITTING THE COPY OF THE SAID ORDER OF THE TRIBUNAL STATED THAT ORDER OF THE FAA WAS AS PE R LAW. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSAL OF THE ABOVE MENT IONED ORDER OF THE TRIBUNAL WE HOLD THAT APPEAL FILED BY THE AO DESERV ES TO BE DISMISSED. 5. WHILE DECIDING THE APPEAL FILED BY THE ASSESSEE FOR LAST ASSESSMENT YEAR B BENCH OF THE TRIBUNAL HAD RE FERRED TO THE MATTER ITA NO.5527/MUM/2011 PHOTOGRAVURS (I) P. LTD., 3 OF RECLAMATION REALITY INDIA PVT. LTD. (ITA 14114/M /07 DTD. 26.11.2010-AY.2004-05).AFTER REFERRING THE PRO VISIONS OF THE ACT AND THE MAHARASHTRA RENT CONTROL ACT, BENCH HELD AS UNDER : WE ARE IN CONSIDERED AGREEMENT WITH THE VIEW SO TA KEN BY THE COORDINATE BENCH OF THIS TRIBUNAL. WE HAVE ALSO NOT ED THAT MUNICIPAL VALUATION A COPY OF WHICH IS PLACED AT PA GE 30 OF THE PAPER BOOK, IS LESS THAN RENT RECEIVED BY THE ASSEE SEE. ACCORDINGLY WE FIND THAT THE VERY FOUNDATION OF TH E IMPUGNED ADDITION MADE TO THE PROPERTY INCOME RETURNED BY TH E ASSESSEE ARE DEVOID OF LEGALLY SUSTAINABLE MERITS. AS THE FACTS AND CIRCUMSTANCE OF THE CASE UNDER CON SIDERATION ARE SAME AS LAST ASSESSMENT YEAR, SO WE ARE ALSO INCLIN ED TO FOLLOW THE ORDERS OF THE TRIBUNAL FOR THE PREVIOUS ASSESSMENT YEAR. AS A RESULT APPEAL FILED BY THE AO STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE, 2012. SD/- SD/- (D.K. AGARWAL) (RAJENDRA ) JUDICIAL MEMBER AC COUNTANT MEMBER MUMBAI, DATE 20 TH JUNE, 2012 TNMM COPY TO: 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI