Mohd. Nasir Khan , Lucknow V. Dy . Commissioner of Income Tax, Lucknow

ITA 565/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78482 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 21-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.565/LKW/2012 ASSESSMENT YEAR:2007 - 08 MOHD. NASIR KHAN, MATIYARI, NEAR ANAND MOTORS, CHINHAT, LUCKNOW. PAN:AITPK2333F VS. DY.C.I.T., RANGE - 1, LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI AJAY KUMAR, D.R. DATE OF HEARING 27/02/2014 DATE OF PRONOUNCEMENT 1 1 /04/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 04/01/2012 FOR ASSESSMENT YEAR 2007 - 08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE RENT RECEIVED FROM PROPERTY AS INCOME FROM OTHER SOURCES AS AGAINST INCOME FROM HOUSE PROPERTY AS SHOWN BY THE ASSESSEE ESPECIALLY ON THE FACTS THAT THE PROPERTY CONSISTS OF LAND AND TEMPORARY CONSTRUCTIONS OF WOODEN RAMPS. 2. THE L D. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT ALLOWING ANY ACTUAL EXPENDITURE INCURRED BY THE APPELLANT IN EARNING AND COLLECTING THE RENTAL INCOME E SPECIALLY ON FACTS THAT AT THE TIME OF ASSESSMENT PROCEEDINGS TH E APPELLANT HAS SUBMITTED BEFORE THE LD . ASSESSING OFFICER AN I NCOME & EXPENDITURE ACCOUNT IN WHICH THE APPELLANT HAS GIVEN DETAILS OF ALL EXPENSES ACTUALLY INCURRED IN 2 EARNING & COLLECTING THE RENT. THE LD. ASSESSING HAS VERIFIED THESE EXPENSES BUT HAS NEITHER DISALLOWED ANY EXPENSES NOR MENTI ONED ANY ADVERSE REMARKS IN HIS ASSESSMENT ORDER IN RESPECT OF THESE EXPENSES. THE SAME LD. ASSESSING OFFICER IN THE ASSESSMENT OF THE SUBSEQUENT ASSTT. YEAR 2009 - 2010 HAS ALLOWED THE ACTUAL EXPENSES INCURRED IN EARNING THE COLLECTING THE RENTAL INCOME BUT THIS FACT HAS BEEN OVERLOOKED BY THE LD. CIT (APPEALS). 3. THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN PROPERTY E SPECIALLY ON THE FACTS THAT THE APPELLANT HAS PRODUCED BEFORE THE LD. ASSESSING OFFICER AND ALSO BEFORE THE LD. CIT( APPEALS) THE BANK STATEMENT FROM WHERE HE HAS MADE SUFFICIENT CAS H WITHDRAWALS TO PURCHASE THE PROPERTY. 3. THIS APPEAL WAS FIXED FOR HEARING AND THE NOTICE WAS SENT TO THE ASSESSEE BY REGISTERED POST, WHICH HAS COME BACK UNSERVED WITH THE REMARKS ADDRESS INCOMPLETE. WE WOULD LIKE TO MENTION THAT THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON THE SAME ADDRESS WHICH IS PROVIDED BY THE ASSESSEE IN FORM - 36. NO CHANGE IN ADDRESS HAS BEEN BROUGHT ON RECORD AND WHEN THE ASSESSEE IS NOT AVAILABLE ON THE ADDRESS PROVIDED BY HIM IN THE APPEAL MEMO , THE TRIBUNAL CANNOT SERVE THE NOTICE OF HEARING TO THE ASSESSEE . THEREFORE, WE HAVE NO OTHER OPTION BUT TO DECIDE THE APPEAL EX - PARTE QUA THE ASSESSEE. WE DO SO. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ONLY ISSUE IS AS TO WHETHER THE INCOME FROM RENT SHOULD BE ASSESSED AS INCOME FROM BUSINESS OR INCOME FROM HOUSE PROPERTY. WE ARE OF THE CONSIDERED OPINION THAT AS PER THE JUDGMENT OF VARIOUS HIGH COURTS AND ALSO OF HONBLE APEX COURT IN TH E 3 CASE OF SAMBHU INVESTMENT , RENTAL INCOME HAS TO BE ASSESSED ONLY AS INCOME FROM HOUSE PROPERTY AND, THEREFORE, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /04/2014. *C.L.SINGH COPY OF TH E ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR