Appeal details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 4231 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 4 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
10-02-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Next Hearing Date
30-07-2015
Assessment Year
2009-2010
Appeal Filed On
01-10-2012
Judgement Text
, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , , , BEFORE, SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.5961/MUM/2012 ASSESSMENT YEAR: 2009-10 MR. ASHOK MOTILAL SARAOGI A/103, 104, VEENA NAGAR, S.V. ROAD, MALAD (W), MUMBAI-400064 / VS. ACIT-11(2), AAYAKAR BHAVAN, MUMBAI-400020 ( !'#$ /ASSESSEE) ( % / REVENUE) PAN. NO. AAIPS3794D !'#$ / ASSESSEE BY SHRI NISHIT GANDHI % / REVENUE BY SHRI AARSI PRASAD & %'($) / DATE OF HEARING : 10/02/2016 ($) / DATE OF ORDER: 24/02/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER D ATED 25/07/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE FIRST GROUND RAISED IN THIS APPEAL PERTAINS TO TAKING THE ITA NO.5961/MUM/2012 MR. ASHOK MOTILAL SARAOGI 2 ANNUAL VALUE AT RS.1,80,000/- FOR THE VALLABH TOWER PROPERTY, BEING THE PREMISES USED BY FAMILY MEMBERS BUT NOT LET OUT DURING THE YEAR. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI NISHIT GANDHI, CONTENDED THAT TH E ASSESSEE FILED AN RTI APPLICATION FOR FLAT NO. A-11 02 FROM THE BRIHAN MUMBAI MAHANAGARPALIKA, WHO VIDE COMMUNICATI ON DATED 05/02/2016, REPLIED THAT THE RATEABLE VALUE O F FLAT NO. A-1102 IN DHRUV PARK CHS LTD. IS RS.24,280/-. THE L D. COUNSEL FURNISHED THE COPY OF THE AFORESAID LETTER DULY SIGNED BY ASSISTANT ASSESSOR AND COLLECTOR (PN) WARD. THE LD. DR, SHRI AARSI PRASAD, CONTENDED THAT TO SAFEGUARD THE INTEREST OF THE REVENUE, THIS LETTER/COMMUNICATION HAS TO BE EX AMINED BY THE ASSESSING OFFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE WAS HAVING TWO HOUSE PROPERTI ES. THE LD. ASSESSING OFFICER ASKED THE ASSESSEE AS TO WHY THE HOUSE PROPERTY INCOME FROM VALLABH TOWER PROPERTY SHOULD NOT BE ADDED TO THE TOTAL INCOME AS AT NOTIONAL BASIS AS T HE RELATIVES OF THE ASSESSEE ARE STAYING IN THAT HOUSE. THE ASSE SSEE VIDE LETTER DATED 10/10/2011 CLAIMED THAT THE PROPERTIES ARE USED AS A RESIDENCE AND THE VEENA NAGAR FLAT WAS PURCHAS ED ON 26/06/1982 FOR RS.62,100/- (USED AS A RESIDENCE) AN D THE SECOND FLAT AS CO-OWNER ON 09/04/2005 FROM DHRUV CONSTRUCTION IS KNOWN AS VALLABH TOWER, WHEREIN, TH E SON OF ITA NO.5961/MUM/2012 MR. ASHOK MOTILAL SARAOGI 3 THE ASSESSEE AND OTHER FAMILY MEMBERS ARE USING THE SAID FLAT FOR RESIDENTIAL PURPOSES AND THE SAME HAS NOT BEEN LET OUT, BY FURTHER EXPLAINING THAT THE RATEABLE VALUE SHOULD BE ON THE BASIS OF MUNICIPAL VALUE. BROADLY, WE ARE IN AGREEMENT WITH THE EXPLANATION OF THE ASSESSEE THAT FOR SELF OCCUPIED PROPERTIES, THE REATEABLE VALUE HAS TO BE ADOPTED O N THE BASIS OF MUNICIPAL VALUATION. OUR VIEW FIND SUPPORTS FROM THE LATEST DECISION OF THE TRIBUNAL IN LAXMI S. JAIN ( ITA NO.4831 & 4726/MUM/2014) ORDER DATED 04/02/2016, WHEREIN, I T WAS HELD THAT THE AMOUNT TO BE TAXED U/S 23(1)(A) O F THE ACT WOULD BE ON THE BASIS OF RATEABLE MUNICIPAL VALUE, WHERE THE PROPERTY IS SELF OCCUPIED. HOWEVER, IN VIEW OF THE COMMUNICATION DATED 05/02/2016, OBTAINED THROUGH RT I, THE LD. ASSESSING OFFICER IS DIRECTED TO LOOK INTO THE SAME AND AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE, DECIDE IN ACCORDANCE WITH LAW. THIS GROUN D OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. THE NEXT GROUND, RAISED BY THE ASSESSEE PERTAIN S TO CONFIRMING THE ADDITION, BEING THE PAYMENT OF PROFE SSIONAL FEE, FROM BOMBAY RESIDENCY CLUB LTD. AMOUNTING TO R S.1 LAKH REFLECTED IN THE BOOKS OF ACCOUNTS AS ADVANCED FEE (TOTAL ADVANCE FEE DURING THE YEAR WAS RS. 8 LAKH). THE CR UX OF ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE IS AN ADVOCATE, RECEIVED CONSULTATION CHAR GES/LEGAL FEE, AS ADVANCED AND THE ASSESSEE IS FOLLOWING MERC ANTILE SYSTEM OF ACCOUNTING. IT WAS EXPLAINED THAT PROPER FACTS WERE ITA NO.5961/MUM/2012 MR. ASHOK MOTILAL SARAOGI 4 NOT APPRECIATED BY THE LD. COMMISSIONER OF INCOME T AX (APPEALS) FOR WHICH OUR ATTENTION WAS INVITED TO PA GE 6, PARA 4.2.3 OF THE IMPUGNED ORDER. THE LD. DR DEFENDED TH E CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE CO MING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT PORTION, ON THE ISSUE, FROM THE IMPUGNED ORDER.:- AS REGARDS THE AMOUNT OF RS.1 LAKH SHOWN AS ADVANC E FEES, IT IS SEEN THAT THE BOMBAY PRESIDENCY RADIO CLUB LTD. HAD DULY DEDUCTED TDS THEREON. HOWEVER, THE SAME HAS BEEN CLAIMED BY THE ASSESSEE AS SHOWN IN THE ADVANCE FEES. HOWEVER, IN SUPPORT OF HIS CLAIM , NO EVIDENCE AND RELIABLE DOCUMENT IS FILED. FURTHER, W HEN AS AMOUNT IS SHOWN ON THE BASIS OF MERCANTILE SYSTE M, THE APPELLANT SHOULD HAVE BEEN SHOWN THE SAME AS INCOME FOR A.Y. 2009-10. ACCORDINGLY, THE ASSESSING OFFICER WAS CORRECT IN MAKING ADDITION OF RS.1 LAKH ON THIS ACCOUNT, THEREFORE, THIS ADDITION IS CONFIRMED . THIS GROUND OF APPEAL IS, THEREFORE, PARTLY ALLOWED. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE ALSO CO NTENDED THAT TAX AT SOURCE WAS DULY DEDUCTED BY THE CLUB AN D THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE HIS CLAIM . IN VIEW OF THE DISCUSSION, MADE IN PARA 4.2.3. AND THE EXPLANA TION OF ITA NO.5961/MUM/2012 MR. ASHOK MOTILAL SARAOGI 5 THE ASSESSEE, WE ARE OF THE VIEW, THAT THE ISSUE RE QUIRES FRESH ADJUDICATION AT THE HANDS OF THE LD. ASSESSING OFFI CER, THEREFORE, WE REMAND THIS ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND TH EN DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPOR TUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENC E, IF ANY, IN SUPPORT OF HIS CLAIM, THUS, THIS GROUND OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. GROUND NO.3 & 4 PERTAINS TO ADDITION OF RS.7,99,620/-. THE CRUX OF ARGUMENT ADVANCED ON BEH ALF OF THE ASSESSEE IS THAT NO TDS WAS REQUIRED TO BE DEDU CTED ON THE IMPUGNED AMOUNT AS THE AMOUNTS WERE BELOW RS.20,000/- AND THE BREAKUP OF THE SAME WAS NEVER CONFRONTED TO THE ASSESSEE. IT WAS CLAIMED THAT TH E ASSESSEE IS IN A POSITION TO SUBSTANTIATE HIS CLAIM. ON THE OTHER HAND, THE LD. DR, CONTENDED THAT THE BREAKUP FILED BEFORE THIS TRIBUNAL WAS NOT FILED BEFORE THE ASSESSING OFFICER/COMMISSIONER OF INCOME TAX (APPEALS), THERE FORE, IT REQUIRES FRESH LOOK BY THE ASSESSING OFFICER. 4.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERI NG THE ABOVE FACTS, SINCE THE BREAKUP OF THE IMPUGNED AMOU NTS WAS NOT CONFRONTED TO THE ASSESSEE AND MERELY ADDITION WAS MADE, THEREFORE, WE ARE OF THE VIEW, THAT ONLY LAWF UL TAX HAS TO BE LEVIED/COLLECTED AND SINCE THE ASSESSEE IS IN A POSITION TO EXPLAIN THE FACTS, THEREFORE, BOTH THESE GROUNDS ARE SENT TO ITA NO.5961/MUM/2012 MR. ASHOK MOTILAL SARAOGI 6 THE FILE OF LD. ASSESSING OFFICER TO EXAMINE THE CL AIM OF THE ASSESSEE AND THEN DECIDE IN ACCORDANCE WITH LAW. NE EDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHER LIBERTY TO FU RNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM. THUS, TH IS GROUND IS ALSO ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/02/2016. SD/- SD/- ( G.S. PANNU ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & ' MUMBAI; + DATED : 24/02/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. , -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 11 & 2$ ( , ) / THE CIT, MUMBAI. 4. 11 & 2$ / CIT(A)- , MUMBAI 5. 4%5/$! , 1, ),!6 , & ' / DR, ITAT, MUMBAI 6. 7'8' / GUARD FILE. / BY ORDER, 04$/$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI ITA NO.5961/MUM/2012 MR. ASHOK MOTILAL SARAOGI 7
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