BHUVNESH CHANDRA, MUMBAI V. ITO 7(3)(3),

ITA 5752/MUM/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9809 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE D.T. GARASIA, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.5752/M/2013 ASSESSMENT YEAR: 2009-10 SHRI BHUVNESH CHANDRA, 302, 3 RD FLOOR, MIDTOWN APARTMENT, CAMPA COLA COMPOUND, WORLI, MUMBAI 400 018 PAN: ACVPC 1570E VS. INCOME TAX OFFICER-7(3)(3), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI SUMAN KUMAR, D.R. DATE OF HEARING : 28.06.2017 DATE OF PRONOUNCEMENT : 24.07.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 30.08.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2009-10. 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSE E HAS CLAIMED THE LOSS ON HOUSE PROPERTY UNDER SECTION 23 OF THE INCOME TAX A CT 1961 OF RS.1,50,000/-. THE ASSESSEE HAS NOT SPECIFIED AS TO WHICH HOUSE PR OPERTY/FLAT IN RESPECT OF WHICH THE ASSESSEE HAS CLAIMED SAID LOSS OF RS.1,50 ,000/-. HOWEVER, FROM THE CERTIFICATE DATED 18.09.2008 ISSUED TO THE ASSESSEE BY UNION BANK OF INDIA IT APPEARS THAT THE ASSESSEE HAS TAKEN LOAN OF RS.77,0 6,377/- IN RESPECT OF PURCHASE OF FIAT NO.202 IN CHANDRA SAGAR, WORLI, MU MBAI- 400 018. IN HIS LETTER DATED 28.11.2011, THE ASSESSEE VIDE PARA 4 O F THE SAID LETTER EXPLAINED IN THE ENCLOSED STATEMENT THAT HE HAS PURCHASED THE FL ATS AT CHANDRA SAGAR FOR ITA NO.5752/M/2013 SHRI BHUVNESH CHANDRA 2 RS.70,00,000/- EACH AND PAYMENTS HAVE BEEN MADE FRO M CAPITAL GAIN ACCOUNT DEPOSIT IN BANK OF INDIA. EVEN THE STAMP DUTY AND R EGISTRATION CHARGES ARE ALSO PAID BY THE ASSESSEE FROM THE SAID CAPITAL GAINS SC HEME ACCOUNT. IT IS THEREFORE PROVED THAT THE ASSESSEE HAS NOT PURCHASED ANY FLAT BY USING THE AMOUNT OF LOAN OF RS.77,06,377/- BY UNION BANK OF INDIA. THE ASSES SEE HAS PAID FROM CAPITAL GAIN ACCOUNT SCHEME IN BANK OF INDIA FOR PURCHASE O F 2 FLATS DURING THE PERIOD 29.05.2008 TO 17.07.2008. HOWEVER, FROM THE CERTIFI CATE OF LOAN ISSUED BY UNION BANK OF INDIA, IT SEEMS THAT THE LOAN OF R.S. 77,06,377/- WAD DISBURSED TO THE ASSESSEE AFTER 18.09.2009. IT IS THEREFORE SURP RISING AS TO HOW THE ASSESSEE HAS CLAIMED INTEREST OF RS.1,50,000/- AGAINST NIL H OUSE PROPERTY INCOME UNDER SECTION 23. HENCE, THE ASSESSEE'S CLAIM OF INTEREST OF RS.1,50,000/- AGAINST THE HOUSE PROPERTY IS REJECTED AND THE INCOME UNDER THE HEAD S.O.P. IS RS. NIL. THE PENALTY UNDER SECTION 271(1)(C) INITIATED FOR I NACCURATE PARTICULARS OF INCOME. 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS DISMISSED THE APPEAL. HENCE, THE ASSESSEE IS IN APPEAL BEFORE US . 4. BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESS EE. HAVING HEARD THE LD. D.R., WE HAVE GONE THROUGH THE ORDER OF LD. CIT (A) WHICH READS AS UNDER: 5.1 I HAVE GONE THROUGH THE SAME. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AND ASSESSMENT FOLDER. AS THE AO HAS MENTIONE D THAT APPELLANT HAS NOT FURNISHED ANY PROOF TO SHOW THAT 2 FLATS ARE NOT 2 DIFFERENT FLATS BUT ARE ACTUALLY A SINGLE UNIT. IT IS NOTED THAT AO'S OBJECTION IS C ORRECT AS ASSESSEE HAS NOT FURNISHED ANY DOCUMENT TO SUPPORT THIS CLAIM NEITHER DURING T HE ASSESSMENT PROCEEDINGS NOR EVEN DURING THE APPELLANT PROCEEDIN GS TO PROVE THAT THESE 2 FLATS ARE ACTUALLY ONE SINGLE UNIT OF HABITABLE HOU SE. AO HAS ALSO BROUGHT ON RECORD ONE MORE FACTOR THAT IN FACT ASSESSEE HAS NO T UTILISED ANY FUND BORROWED FOR PURCHASE OF HOUSE AND IN FACT THE PRICE FOR THE HOUSE WAS PAID FROM FUNDS AVAILABLE IN HIS CAPITAL CAIN ACCOUNT SCHEME. IT IS ALSO BROUGHT ON RECORD THAT THE LOAN AMOUNT ON WHICH INTEREST PAID WAS CLAIMED AS E XPENSES WAS DISBURSED MUCH LATER AFTER PURCHASE OF HOUSE. IN VIEW OF THIS, I A M IN AN AGREEMENT WITH AO'S FINDING THAT ASSESSEE IS NOT ENTITLED FOR ANY DEDUC TION FOR INTEREST EXPENSES FROM THE 'HOUSE PROPERTY INCOME' FOR THE VERY REASON THA T SAME HAS BEEN NOT UTILIZED FOR THE PURCHASE OF THESE 2 FLATS BY THE ASSESSEE. ITA NO.5752/M/2013 SHRI BHUVNESH CHANDRA 3 5. BEFORE US, THE ASSESSEE DID NOT REMAIN PRESENT. THEREFORE, IN ABSENCE OF ANY EXPLANATION BEFORE US, WE HAVE NO ALTERNATIVE E XCEPT TO ENDORSE THE ACTION OF LD. CIT(A). 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.07.2017. SD/- SD/- (MANOJ KUMAR AGGARWAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 24.07.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.