MAHESH KUMAR GUPTA, Jaipur V. ITO, Jaipur

ITA 639/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2004 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 06-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Keywords: Earning of tax free income
• Section: 14A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 639/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 MAHESH KUMAR GUPTA, 211-212, SHALIMAR COMPLEX, CHURCH ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-2(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAXPG 7461 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIJAY GOYAL & SHRI GULSHAN AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/07/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 11/07/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF THE LD. CIT(A), ALIGARH AT JAIPUR (CAMP OFFICE) FOR THE A.Y. 2010-11 DATED 10/03/2016, WHEREIN THE ASSESSEE HAS RAISED FO LLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CAS E AND IN LAW THE ID. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,05,976/- MADE BY AO BY DISALLOWING THE INTEREST BY INVOKING THE P ROVISIONS OF SECTION 14A READ WITH RULE 8D OF I.T. RULES MORE SO WHEN ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 2 INVESTMENT IN SHARES WAS MADE OUT OF ASSESSEES OWN CAPITAL AND PROVISIONS OF SECTION 14A READ WITH RULE 8D OF I.T. RULES ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ID, CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 2,52,000/- ON ACCOUNT OF NOTIONAL RENT FROM HOUSE PROPERTY SITUAT ED AT FLAT NO 202, STERLING APARTMENT, PRATHVIRAJ ROAD, C-SCHEME, JAIPUR, BY APPLYING THE PROVISIONS OF SECTION 22 AND 23 OF INC OME TAX ACT MORE SO WHEN THE PROPERTY REMAINED VACANT FOR WANT OF SUITABLE TENANT AND NOTIONAL RENTAL VALUE OF THE PROPERTY WA S ESTIMATED ON THE BASIS OF INSPECTORS REPORT, WHICH IS AT VER Y HIGH PITCHED VALUE MERELY ON ESTIMATION, GUESS, SURMISES AND CON JECTURES AND OPPORTUNITY TO REBUT THE INSPECTORS REPORT WAS NOT PROVIDED TO ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ID. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,05.000/- ON ACCOUNT OF NOTIONAL RENT FROM HOUSE PROPERTY SITUAT ED AT OFFICE AT 401, PRESTIGE TOWER, AMARAPALI CIRCLE, VAISALI N AGAR. JAIPUR, BY APPLYING THE PROVISIONS OF SECTION 22 AND 23 OF INCOME TAX ACT MORE SO WHEN THE PROPERTY REMAINED VACANT FOR W ANT OF SUITABLE TENANT AND NOTIONAL RENTAL VALUE OF THE PR OPERTY WAS ESTIMATED ON THE BASIS OF INSPECTORS REPORT, WHICH IS AT VERY HIGH PITCHED VALUE MERELY ON ESTIMATION, GUESS, SUR MISES AND CONJECTURES AND OPPORTUNITY TO REBUT THE INSPECTOR S REPORT WAS NOT PROVIDED TO ASSESSEE. 4. THAT APPELLANT PRAYS FOR LEAVE TO ADD, ALTER, AM END THE AFORESAID GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING OF APPEAL. 2. IN THE GROUND NO. 1, THE ISSUE INVOLVED IS AGAIN ST SUSTAIN THE ADDITION OF RS. 1,05,976/- MADE BY THE ASSESSING OF FICER BY INVOKING THE PROVISIONS OF SECTION 14A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 3 ACT) READ WITH RULE 8D OF THE INCOME TAX RULES, 1962 (IN SHORT THE RULES). 3. THE LD. CIT(A) HAS CONFIRMED THE ADDITION BY HOLDI NG AS UNDER:- THESE GROUNDS RELATE TO INVOKING OF PROVISIONS OF SECTION 14A AND MAKING DISALLOWANCE OF RS. 1,05,976/- ON THE BASIS OF RULE 8D. IN THIS REGARD, THE APPELLANT HAS SUBMITTED THAT THE INVEST MENT IN SHARES HAS BEEN MADE OUT OF APPELLANTS OWN CAPITAL. IT HAS BE EN EXPLAINED THAT ALL THE LOANS ON WHICH INTEREST HAS BEEN PAID HAVE BEEN UTILIZED FOR THE PURPOSE OF BUSINESS ONLY. I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF T HE CASE. THERE ARE NO SEPARATE ACCOUNTS RELATING TO INVESTMENT IN SHAR ES AND AS SUCH IT IS APPARENT THAT THE INVESTMENT IN SHARES HAS BEEN MAD E OUT OF COMMON POOL OF FUNDS. THE APPELLANTS CONTENTION THAT THE WHOLE OF THE INVESTMENT IN THE SHARES IS OUT OF CAPITAL IS NOT VERIFIABLE. FURTHER, APART FROM INTEREST THERE WOULD BE CERTAIN ADMINISTRATIVE EXPENSES AND OTHER FINANCIAL EXPENSES WHICH CAN BE ATTRIBUTED TOWARDS EARNING OF DIVIDEND INCOME. THUS, PROVISIONS OF SECTION 14A ARE CLEARLY APPLICA BLE IN THIS CASE. ONCE, IT IS HELD THAT THE SECTION 14A IS APPLICABL E, THE AO IS BOUND TO MAKE DISALLOWANCE FOR THE EXPENSES INCURRED TOWARDS EARNING THE EXEMPT INCOME. THE AO HAS APPLIED RULE 8D AND WORKED OUT D ISALLOWANCE OF RS. 1,05,976/-. WITH REGARD TO ACCURACY OF THIS CALCULA TION NO ADVERSE COMMENTS HAVE BEEN GIVEN BY THE APPELLANT. ACCORDIN GLY, IT CAN BE ASSUMED THAT COMPUTATION OF DISALLOWANCE FOR THE PU RPOSE OF SECTION 14A IS CORRECT. IN VIEW OF THE ABOVE, THE ADDITION OF RS. 1,05,976/ - IS CONFIRMED AND THESE GROUNDS ARE DISMISSED. ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 4 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. WHI LE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR OF THE ASSESSEE H AS SUBMITTED AS UNDER:- I. THE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS. 47,1 07/- AND THE SAME HAS BEEN DISCLOSED IN THE RETURN OF INCOME. THE INV ESTMENT IN TRANSACTION IN SHARES HAS BEEN MADE OUT OF ASSESSEE S OWN CAPITAL. THE OPENING CAPITAL BALANCE OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION IS RS. 6,74,95,476/-. DURING THIS YEAR UNSECURED LOANS APPEARING IN THE BALANCE SHEET AMOUNTING TO RS. 1,8 1,19,262/- ON WHICH INTEREST OF RS. 5,80,345/-PAID/CREDITED. THE ASSESSEE HAS UTILIZED THE LOAN FUNDS/INTEREST BEARING FUNDS FOR THE PURPO SE OF BUSINESS. THE ASSESSEE IS ALSO A FINANCIAL BROKER. THE SUM RAISED FROM MARKET AS AFORESAID HAS BEEN UTILIZED FOR ADVANCING TO EARN I NTEREST INCOME. THE DEBTORS IN THE BALANCE SHEET STOOD AT RS. 2,88,28,9 18/-. THE INVESTMENT IN SHARES AS APPEARING IN THE BALANCE SHEET IS RS. 1,45,58,740/- WAS TOTALLY FUNDED OUT OF OWN CAPITAL. IT IS THEREFORE CLARIFIED THAT NO INTEREST BEARING FUND WERE UTILIZED FOR EARNING TAX FREE INCOME I.E. DIVIDEND INCOME FROM INVESTMENT IN SHARES. II. AS PER THE PROVISIONS OF SECTION 14A OF INCOME TAX ACT, 1961 AND RULES 8D OF INCOME TAX RULES 1962 WHICH FURTHER CLA RIFY BY CIRCULAR NO. 5/2014 DATED 11.02.2014 NO DEDUCTION IN RESPECT OF EXPENDITURE INCURRED BY THE ASSESSEE IN RELATION TO THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THIS ACT. IN THE CAS E OF THE ASSESSEE ENTIRE INVESTMENTS WERE MADE BY THE ASSESSEE OUT OF ITS OWN FUNDS. FROM THE PERUSAL OF BALANCE SHEET OF THE ASSESSEE ( COPY PB PG 22 ) YOUR HONOR WOULD FIND THAT THE ASSESSEE WAS HAVING SUFFICIENT ITS OWN CAPITAL. THE OWN CAPITAL OF THE ASSESSEE WAS RS. 6, 74,95,476/- WHILE THE INVESTMENT IN SHARES WAS OF RS. 1,45,58,740/- O NLY. THUS THE OWN FUNDS OF THE ASSESSEE WERE MUCH MORE THAN TO INVEST MENTS, THEREFORE NO DISALLOWANCE U/S 14A OF INCOME TAX ACT, 1961 SHO ULD BE MADE. III. FURTHER WE SUBMIT THAT SUB-SECTION (2) OF SECTION 1 4A EMPOWERS THE AO TO DETERMINE THE AMOUNT OF EXPENDITURE INCURRED IN RELATION TO SUCH INCOME WHICH DOES NOT FORM PART OF THE TOTAL I NCOME UNDER THIS ACT IN ACCORDANCE WITH SUCH METHOD AS MAY BE PRESCR IBED, IF THE AO, HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEE IS NO T SATISFIED WITH THE ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 5 CORRECTNESS OF THE CLAIM OF THE ASSESSEE IN RESPECT OF SUCH EXPENDITURE IN RELATION TO THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME. SIMILAR REQUIREMENT IS OF RULE 8D(1). IN THIS CASE EVEN THOUGH THE AO HAS MADE THE DISALLOWANCE BY RELYING ON THE PROVISI ONS OF SECTION 14A BUT HE DID NOT COMPLY WITH THE CONDITIONS AS STIPUL ATED IN SECTION 14A(2)/RULE 8D(1). HE HAS NOT RECORDED ANY SATISFA CTION WITH REGARD TO THE INCORRECTNESS OF CLAIM OF THE ASSESSEE HAVIN G REGARD TO THE ACCOUNTS OF THE ASSESSEE OR THAT HE IS NOT SATISFIE D WITH THE CLAIM OF THE ASSESSEE. RELIANCE IS PLACED ON RECENT DECISION OF HONBLE SUPREME COURT IN THE CASE OF GODREJ & BOYCE MANUFACTURING COMPANY LIMITED VERSUS DY. COMMISSIONER OF INCOME-TAX & ANR. [2017] 394 ITR 449. 5. ON THE CONTRARY, THE LD. DR HAS VEHEMENTLY SUPPO RTED THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE SIDES ON THIS ISSUE AND I HAVE ALSO CONSIDERED THE RECENT DECISION OF THE HON'BLE SUPRE ME COURT IN THE CASE OF GODREJ & BOYCE MANUFACTURING COMPANY LIMITED VS. DY. COMMISSIONER OF INCOME-TAX & ANR. IN CIVIL APPEAL NO . 7020 OF 2011 ORDER DATED 08 TH MAY, 2017 HAS HELD AS UNDER:- 35. WE MAY NOW DEAL WITH THE SECOND QUESTION AR ISING IN THE CASE. 36. SECTION 14A AS ORIGINALLY ENACTED BY THE F INANCE ACT OF 2001 WITH EFFECT FROM 1.4.1962 IS IN THE SAME FORM AND LANGUAGE AS CURRENTLY APPEARING IN SUB-SECTION (1) OF SECTION 14A OF THE ACT. SEC TIONS 14A (2) AND (3) OF THE ACT WERE INTRODUCED BY THE FINANCE ACT OF 2006 WI TH EFFECT FROM 1.4.2007. THE FINDING OF THE BOMBAY HIGH COURT IN THE IMPUG NED ORDER THAT SUB- SECTIONS (2) AND (3) OF SECTION 14A IS RETROSPE CTIVE HAS BEEN CHALLENGED BY THE REVENUE IN ANOTHER APPEAL WHICH IS PRES ENTLY PENDING BEFORE THIS COURT. THE SAID QUESTION, THEREFORE, NEED NOT AND C ANNOT BE GONE INTO. NEVERTHELESS, IRRESPECTIVE OF THE AFORESAID QU ESTION, WHAT CANNOT BE DENIED IS THAT THE REQUIREMENT FOR ATTRACTING THE PROVISIONS OF SECTION ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 6 14A(1) OF THE ACT IS PROOF OF THE FACT THAT THE EX PENDITURE SOUGHT TO BE DISALLOWED/DEDUCTED HAD ACTUALLY BEEN INCURRED IN EARNING THE DIVIDEND INCOME. INSOFAR AS THE APPELLANT-ASSESSEE IS CONCER NED, THE ISSUES STAND CONCLUDED IN ITS FAVOUR IN RESPECT OF THE ASSESSMEN T YEARS 1998-1999, 1999- 2000 AND 2001-2002. EARLIER TO THE INTRODUCTION OF SUB-SECTIONS (2) AND (3) OF SECTION 14A OF THE ACT, SUCH A DETERMINATION WAS REQUIRED TO BE MADE BY THE ASSESSING OFFICER IN HIS BEST JUDGMENT. IN ALL THE AFORESAID ASSESSMENT YEARS REFERRED TO ABOVE IT WAS HELD THAT THE REVENU E HAD FAILED TO ESTABLISH ANY NEXUS BETWEEN THE EXPENDITURE DISALLOWED AND TH E EARNING OF THE DIVIDEND INCOME IN QUESTION. IN THE APPEALS ARIS ING OUT OF THE ASSESSMENTS MADE FOR SOME OF THE ASSESSMENT YEARS THE AFORESAID QUESTION WAS SPECIFICALLY LOOKED INTO FROM THE STAN DPOINT OF THE REQUIREMENTS OF THE PROVISIONS OF SUB-SECTIONS (2) AND (3) OF SECTION 14A OF THE ACT WHICH HAD BY THEN BEEN BROUGHT INTO FORCE . IT IS ON SUCH CONSIDERATION THAT FINDINGS HAVE BEEN RECORDED THA T THE EXPENDITURE IN QUESTION BORE NO RELATION TO THE EARNING OF THE DI VIDEND INCOME AND HENCE THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF FULL EXEMPTION CLAIMED ON ACCOUNT OF DIVIDEND INCOME. 37. WE DO NOT SEE HOW IN THE AFORESAID FACT SIT UATION A DIFFERENT VIEW COULD HAVE BEEN TAKEN FOR THE ASSESSMENT YEAR 2002-2003. SUB -SECTIONS (2) AND (3) OF SECTION 14A OF THE ACT READ WITH RULE 8D OF THE RUL ES MERELY PRESCRIBE A FORMULA FOR DETERMINATION OF EXPENDITURE INCURRED IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THE ACT IN A SITUATION WHERE THE ASSESSING OFFICER IS NOT SATISFIED WITH THE CLAIM OF THE ASSESSEE. WHETHER SUCH DETERMINATION IS TO BE MADE ON APPL ICATION OF THE FORMULA PRESCRIBED UNDER RULE 8D OR IN THE BEST JUDG MENT OF THE ASSESSING OFFICER, WHAT THE LAW POSTULATES IS THE REQU IREMENT OF A SATISFACTION IN THE ASSESSING OFFICER THAT HAVING REGARD TO THE ACC OUNTS OF THE ASSESSEE, AS PLACED BEFORE HIM, IT IS NOT POSSIBLE TO GENER ATE THE REQUISITE SATISFACTION WITH REGARD TO THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE. IT IS ONLY THEREAFTER THAT THE PROVISIONS OF SECTION 1 4A (2) AND (3) READ WITH RULE 8D OF THE RULES OR A BEST JUDGMENT DETERMINATI ON, AS EARLIER PREVAILING, WOULD BECOME APPLICABLE. 38. IN THE PRESENT CASE, WE DO NOT FIND ANY ME NTION OF THE REASONS WHICH HAD PREVAILED UPON THE ASSESSING OFFICER, WHILE DEA LING WITH THE ASSESSMENT YEAR 2002-2003, TO HOLD THAT THE CLAIMS OF THE ASSE SSEE THAT NO EXPENDITURE WAS INCURRED TO EARN THE DIVIDEND INCOM E CANNOT BE ACCEPTED AND WHY THE ORDERS OF THE TRIBUNAL FOR THE EARLIER ASSESSMENT YEARS WERE NOT ACCEPTABLE TO THE ASSESSING OFFICER, PARTICULAR LY, IN THE ABSENCE OF ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 7 ANY NEW FACT OR CHANGE OF CIRCUMSTANCES. NEITHER AN Y BASIS HAS BEEN DISCLOSED ESTABLISHING A REASONABLE NEXUS BETWEEN T HE EXPENDITURE DISALLOWED AND THE DIVIDEND INCOME RECEIVED. THAT ANY PART OF THE BORROWINGS OF THE ASSESSEE HAD BEEN DIVERTED TO E ARN TAX FREE INCOME DESPITE THE AVAILABILITY OF SURPLUS OR INTEREST FREE FUNDS AVAILABLE (RS. 270.51 CRORES AS ON 1.4.2001 AND RS. 280.64 CRORE S AS ON 31.3.2002) REMAINS UNPROVED BY ANY MATERIAL WHATSOEVER. W HILE IT IS TRUE THAT THE PRINCIPLE OF RES JUDICATA WOULD NOT APPLY TO ASSE SSMENT PROCEEDINGS UNDER THE ACT, THE NEED FOR CONSISTENCY AND CERTAINTY AN D EXISTENCE OF STRONG AND COMPELLING REASONS FOR A DEPARTURE FROM A SETTL ED POSITION HAS TO BE SPELT OUT WHICH CONSPICUOUSLY IS ABSENT IN THE PRESENT CASE. IN THIS REGARD WE MAY REMIND OURSELVES OF WHAT HAS BEEN OBSERVED BY THIS COURT IN RADHASOAMI SATSANG VS. COMMISSIONER OF INCOME-TA X[6]. WE ARE AWARE OF THE FACT THAT STRICTLY SPEAKING R ES JUDICATA DOES NOT APPLY TO INCOME TAX PROCEEDINGS. AGAIN, EACH ASSESSMENT Y EAR BEING A UNIT, WHAT IS DECIDED IN ONE YEAR MAY NOT APPLY IN THE FO LLOWING YEAR BUT WHERE A FUNDAMENTAL ASPECT PERMEATING THROUGH THE DIFFEREN T ASSESSMENT YEARS HAS BEEN FOUND AS A FACT ONE WAY OR THE OTHER AND PARTIES HAVE ALLOWED THAT POSITION TO BE SUSTAINED BY NOT CHALLENGING TH E ORDER, IT WOULD NOT BE AT ALL APPROPRIATE TO ALLOW THE POSITION TO BE CHAN GED IN A SUBSEQUENT YEAR. 39. IN THE ABOVE CIRCUMSTANCES, WE ARE OF THE V IEW THAT THE SECOND QUESTION FORMULATED MUST GO IN FAVOUR OF THE ASSESSEE AND IT MUST BE HELD THAT FOR THE ASSESSMENT YEAR IN QUESTION I.E. 2002-2003, TH E ASSESSEE IS ENTITLED TO THE FULL BENEFIT OF THE CLAIM OF DIVIDEND INCOME WI THOUT ANY DEDUCTIONS. 40. CONSEQUENTLY, THE APPEAL IS ALLOWED AND THE ORDER OF THE HIGH COURT IS SET ASIDE SUBJECT TO OUR CONCLUSIONS, AS ABO VE, ON THE APPLICABILITY OF SECTION 14A WITH REGARD TO DIVIDEND INCOME ON WHICH TAX IS PAID UNDER SECTION 115-O OF THE ACT. AFTER CONSIDERING THE VARIOUS DECISIONS AND THE REC ENT DECISION OF THE HON'BLE SUPREME COURT (SUPRA), I AM OF THE CONSIDER ED VIEW THAT THIS ISSUE REQUIRES A FRESH LOOK AT THE LEVEL OF THE ASS ESSING OFFICER, THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, T HE ISSUE IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO BE DECIDED DE NOVO CONSIDERING ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 8 THE DECISION OF THE HON'BLE SUPREME COURT IN THE CA SE (SUPRA). ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED FOR ST ATISTICAL PURPOSES ONLY. 7. GROUND NO. 2 AND 3 OF THE APPEAL ARE AGAINST SUS TAINING THE ADDITION OF RS. 2,52,000/- ON ACCOUNT OF NOTIONAL R ENT FROM HOUSE PROPERTY SITUATED AT FLAT NO. 202, STERLING APARTME NT, PRITHIVI RAJ ROAD, C-SCHEME, JAIPUR AND RS. 1,05,000/- ON ACCOUNT OF N OTIONAL RENT FROM HOUSE PROPERTY SITUATED AT OFFICE AT 401, PRESTIGE TOWER, AMRAPALI CIRCLE, VAISHALI NAGAR, JAIPUR. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSIONS, HAS DISMISSED THESE GROUNDS BY HOLDING AS UNDER:- 5.6 THESE GROUNDS HAVE BEEN RAISED AGAINST ASSESSMENT O F INCOME FROM L HOUSE PROPERTIES ON NOTIONAL BASIS. THE MAIN ARGUME NT OF THE APPELLANT IS THAT DURING THE RELEVANT PERIOD, THE P ROPERTIES WERE VACANT AND DUE TO THE SAID VACANCY, ACTUAL RENT REC EIVED OR RECEIVABLE IN RESPECT OF THESE PROPERTIES WAS NIL. I DO NOT FI ND MERIT IN THIS ARGUMENT BECAUSE THE APPELLANT HAS NOT GIVEN ANY EV IDENCE WHICH WOULD SHOW THAT THESE PROPERTIES WERE READY TO BE L ET BUT COULD NOT BE LET FOR WANT OF SUITABLE TENANTS. VACANCY REMISS ION CAN BE ALLOWED ONLY WHEN IT IS SHOWN THAT THE OWNER WAS WILLING TO LET OUT THE PROPERTY BUT COULD NOT FIND WILLING TENANT. NEITHER THERE IS ANY EVIDENCE THAT IN THE IMMEDIATELY PRECEDING PERIOD T HE PROPERTY WAS ACTUALLY LET OUT AND AFTER IT GETTING VACATED THE A PPELLANT MADE EFFORTS TO LET IT OUT AGAIN. ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 9 THE OTHER OBJECTION OF THE APPELLANT IS THAT THE A LV PRESUMED BY THE AO WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE. T HERE MAY BE MERIT IN THIS ARGUMENT BUT EVEN IN THE APPELLATE PROCEEDI NGS, NO EVIDENCE HAS BEEN ADDUCED WHICH WOULD SHOW THAT ALV ASSESSED BY THE AO IS UNREASONABLE OR ON THE HIGHER SIDE. THEREFORE, THIS ARGUMENT CAN ALSO NOT BE ACCEPTED. IN VIEW OF THE AFORESAID, THE ADDITION OF RS. 2,52 ,000/- AND RS. 1,05,000/- MADE UNDER THE HEAD INCOME FROM HOUSE PR OPERTY IS CONFIRMED AND THESE GROUNDS ARE DISMISSED. 8. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. WHI LE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR OF THE ASSESSEE H AS SUBMITTED AS UNDER:- 2.2.1 FINDING OF AO:- THE FINDING OF AO AT PAGE NO. 10 OF THE ORDER IS TH AT DURING THE COURSE OF ASSESSMENT PROCEEDING ON PERUSAL OF RECORDS AO NOTI CE THAT ASSESSEE HAS NOT CHARGED RENT OF FLAT NO. 202 AT STERLING APARTMENT AND SHOP NO. 401, PRESTIGE TOWER, AMRAPALI CIRCLE, VAISHALI NAGAR, JAIPUR. AO HAS REQUESTED ASSESSEE TO PROVIDE MARKET RENT OF THESE PROPERTIES AND LATER O N AO HAS DEPUTED THE INSPECTOR TO DETERMINE THE MARKET VALUE OF THESES P ROPERTIES. THE INSPECTOR HAS DETERMINE THE MARKET RENT OF RS. 35,000/- PER MONTH WHICH WOULD FETCH FOR FLAT NO. 202, STERLING APARTMENT, PRITHVIRAJ ROAD, C-SCHEME, JAIPUR AND MARKET RENT OF RS. 25,000/- PER MONTH FOR SHOP NO. 401, PRESTIGE TOWER, AMRAPALI CIRCLE, VAISHALI NAGAR, JAIPUR. AO BASED O N THE REPORT OF INSPECTOR HAS MADE ADDITION OF RS. 2,52,000/- FOR FLAT AT STE RLING APARTMENT AND RS. 1,05,000/- FOR THE SHOP NO. 401 AT PRESTIGE TOWER I N THE HAND OF ASSESSEE U/S 23(1)(A) AFTER ALLOWING DEDUCTION U/S 24B OF THE IN COME TAX ACT 1961. 2.2.2 FINDING OF LD CIT(A): - THE FINDINGS OF LD CIT(A) ARE AT PAGE 8 OF HIS ORDE R. HE CONFIRMED THE FINDINGS OF LD AO. 2.2.3 SUBMISSION BY ASSESSEE: ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 10 I. THE ASSESSEE OWNED 125 PROPERTIES AS ON 31-03-2010. OUT OF THE SAID PROPERTIES RENTAL INCOME HAS BEEN DECLARED FROM 3 P ROPERTIES AS APPEARING IN THE RETURN OF INCOME. TWO PROPERTIES A RE BEING USED FOR BUSINESS PURPOSES OF THE ASSESSEE. THE ASSESSEE ALS O OWNED A FLAT WHICH IS STILL INCOMPLETE THEREFORE NO RENTAL INCOM E HAS BEEN SHOWN EITHER ACTUAL OR NOTIONAL. THE REST OF THE PROPERTI ES ARE VACANT PLOT OF LAND AND DO NOT ATTRACT PROVISIONS OF INCOME FROM H OUSE PROPERTY. THEREFORE NO NOTIONAL INCOME IS REQUIRED TO BE OFFE RED TO TAX. II. THE INQUIRY ON THE BASIS OF WHICH THE ALV WAS PRESU MED WAS NOT BROUGHT TO THE NOTICE OF ASSESSEE. III. S. 23 (1)(C) REQUIRES THAT WHERE THE PROPERTY WAS V ACANT DURING THE YEAR AND DUE TO SUCH VACANCY, THE ACTUAL RENT RECEI VED OR RECEIVABLE IN RESPECT THEREOF IS LESS THAN THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO BE LET FROM YEAR TO YEAR, THE AMOUNT SO RECEIVED OR RECEIVABLE SHALL BE DEEMED TO BE THE AN NUAL VALUE OF SUCH PROPERTY. IV. THE PROVISIONS OF S. 23 (4) (B) ARE VERY CLEAR THAT WHERE THE PROPERTY CONSISTS OF MORE THAN ONE HOUSE, THE ANNUAL VALUE T HEREOF SHALL BE DETERMINED U/S 23 (1), AS IF SUCH PROPERTY HAD BEEN LET. THIS RE-DIRECTS THE COURT TO S. 23 (1). APPLYING S. 23 (1) TO THE F ACTS OF THE PRESENT CASE, IT IS S. 23 (1) (C) WHICH SHALL AGAIN COME INTO PLA Y INASMUCH AS IT REMAINS UNDISPUTED, AS OBSERVED HEREINABOVE, THAT T HE PROPERTY WAS LET, BUT WAS VACANT DURING THE YEAR, DUE WHICH VACA NCY, THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE ASSESSEE IN RESPECT O F SUCH PROPERTY WAS NIL. NIL RENT, THEN, IT CANNOT BE GAINSAID, IS EVID ENTLY LESS THAN THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. S. 23 (2) TALKS OF A HOUSE OR A PART OF A HOUSE AND S. 23 (4) CONSIDERS PROPERTY CONSISTING OF MORE THAN ONE HOUSE AND AS P ER S. 23 (4) (A), THE CONCESSION WILL BE AVAILABLE TO THE ASSESSEE ONLY W ITH REGARD TO ONE OF THE HOUSES CONSTITUTING THE PROPERTY AND THE ALV OF THE REMAINING HOUSES SHALL HAVE TO BE DETERMINED. V. WHERE THE PROPERTY CONSISTS OF MORE THAN ONE HOUSE, THE ANNUAL VALUE THEREOF SHALL BE DETERMINED U/S 23 (1), AS IF SUCH PROPERTY HAD BEEN LET. ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 11 VI. THE ABOVE CONTENTION OF ASSESSEE IS ALSO SUPPORTED BY THE DECISION OF ITAT, DELHI BENCH IN CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. DR. PRABHA SANGHI (2012) 139 ITD 050 4. THE BRIEF FACTS OF THIS CASE ARE AS UNDER:- VIDE ASSESSMENT ORDER DATED 19.12.2006, THE A.O. M ADE AN ADDITION OF RS 13,83,270/- TO THE INCOME OF THE ASSESSEE, ON ACCOUNT OF PROPERTY INCOME. IT WAS OBSERVED THAT THE ASSESSEE WAS OWNER IN POSSESSION OF A NUMBER OF PROPERTIES, WHEREAS SHE HAD SHOWN INCOME FROM HOUSE PROPERTY AT NIL. SHE WAS ASKED TO EXPLAIN AS TO WHY THE RENT RECEIVED IN F.Y.S 2001-02 AND 2002-03 IN RESPECT OF PROPERTIES BEARING NO.1-A AND NO.2, RING ROAD AND NO.A-6 A, MAHARANI BAGH, BE NOT DEEMED TO ATTRACT ANNUAL LETTING VALUE U/S 23(4) (B) OF THE IT ACT , FOR THE YEAR UNDER CONSIDERATION. IN RESPONSE, THE ASSESSEE SUBM ITTED THAT THE PROPERTY AT 2, RING ROAD WAS SELF OCCUPIED AND SO, IT DID NOT HAVE ANY ANNUAL LETTING VALUE, WHEREAS THE OTHER TWO PROPERT IES HAD REMAINED VACANT THROUGHOUT THE YEAR, DUE TO WHICH, THE RENT RECEIVED WAS NIL, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 (1)(C) OF THE ACT. THE A.O., HOWEVER, OPINED THAT THE PROVISIONS OF SECTION 23 (4)(B) OF THE ACT WERE ATTRACTED. AS SUCH, SHE (THE A.O.) TOOK TH E RENT FOR THE MAHARANI BAGH PROPERTY AT RS. 12,76,104/-, THE REN T QUA THIS PROPERTY FOR ASSESSMENT YEARS 2000-01 AND 2001-02 HAVING BEE N SHOWN AT RS. 1,06,342/- PER MENSEM. THE RENT OF THE PROPERTY BEA RING NO.1-A, RING ROAD, WAS TAKEN AT RS. 6,99,996/-, THE RENT FOR THI S PROPERTY HAVING BEEN SHOWN FOR ASSESSMENT YEARS 2001-02 AND 2002-03 AT RS. 58,333/- PER MENSEM. THE TOTAL OF BOTH THE RENTS THUS ARRIVE D AT CAME TO RS. 19,76,100/-. DEDUCTING THERE FROM REPAIR/RENOVATION @ 30% AMOUNTING TO RS. 5,92,830/-, THE A.O. ARRIVED AT TH E NET PROPERTY INCOME OF RS. 13,83,270/-, WHICH SHE ADDED TO THE A SSESSEE'S INCOME. 3. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT (A) DELETED THE ADDITION OF RS 12,76,104/- REGARDING MAHARANI BAGH PROPERTY, TAKING THE ALV IN RESPECT THEREOF TO BE NIL. APROPOS THE P ROPERTY AT A-1, RING ROAD, THE ALV WAS TAKEN AT RS. 28,620/-, THE F IGURE DETERMINED BY THE MCD AND RESTRICTED THE ADDITION FROM RS. 6,9 9,996/- TO THE SAID AMOUNT OF RS. 28,620/- HONBLE ITAT HELD THAT:- ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 12 WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MA TERIAL ON RECORD. THE ISSUE IS AS TO WHETHER THE LD. CIT (A) HAS RIGH TLY APPLIED THE PROVISIONS OF SECTION 23 (1)(C) RATHER THAN THOSE OF SECTION 23 (4)(B) OF THE ACT. 9. AT THE OUTSET, IT WOULD BE APPROPRIATE TO REPROD UCE HEREUNDER, BOTH THESE PROVISIONS:- SECTION 23 (1) (C) - WHERE THE PROPERTY OR ANY PART OF THE PR OPERTY IS LET AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR AND OWING TO SUCH VACANCY THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THEREOF IS LESS THAN THE SUM R EFERRED TO IN CLAUSE (A), THE AMOUNT SO RECEIVED OR RECEIVABLE : SECTION 23 (4) (B) - THE ANNUAL VALUE OF THE HOUSE OR HOUSES, OTHER THAN THE HOUSE IN RESPECT OF WHICH THE ASSESSEE HAS EXER CISED AN OPTION UNDER CLAUSE (A), SHALL BE DETERMINED UNDER SUB-SEC TION (1) AS IF SUCH HOUSE OR HOUSES HAD BEEN LET. 10. A PERUSAL OF SECTION 23 (1)(C) CLEARLY SHOWS THE UNAMBIGUOUS REQUIREMENTS OF THE SAID SECTION. THIS SECTION REQU IRES THAT WHERE THE PROPERTY WAS VACANT DURING THE YEAR AND DUE TO SUCH VACANCY, THE ACTUAL RENT RECEIVED OR RECEIVABLE IN RESPECT THERE OF IS LESS THAN THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPE CTED TO BE LET FROM YEAR TO YEAR, THE AMOUNT SO RECEIVED OR RECEIV ABLE SHALL BE DEEMED TO BE THE ANNUAL VALUE OF SUCH PROPERTY. 11. ON THE OTHER HAND, AS PER SECTION 23 (4), WHERE THE PROPERTY CONSISTS OF MORE THAN ONE HOUSE, THE ANNUAL VALUE T HEREOF SHALL BE DETERMINED AS IF SUCH HOUSE HAD BEEN LET. 12. IT APPEARS THAT THERE IS A DIFFERENCE BETWEEN T HE PROVISIONS OF SECTION 23 (1)(C) OF THE ACT AND THOSE OF SECTION 23 (4) THEREOF. HOWEVER, IT IS NOT SO. AS PER SECTION 23 (1)(C), IF ANY PART OF THE PROPERTY WAS LET OUT AND WAS VACANT DURING THE YEAR OR ANY PART THEREOF, AND DUE TO SUCH VACANCY, THE ANNUAL RENT R ECEIVED OR RECEIVABLE WAS LESS THAN THE SUM FOR WHICH THE PROP ERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR, TH E LESSER OF THE TWO AMOUNTS, I.E., THE AMOUNT RECEIVED OR RECEIVABLE, I S TO BE THE ANNUAL VALUE OF THE PROPERTY. SECTION 23 (4), ON THE OTHER HAND, REFERS TO PROPERTY WHERE IT CONSISTS OF MORE THAN ONE HOUSE, AS IN THE PRESENT ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 13 CASE. AS PER THIS SECTION, THE ANNUAL VALUE OF SUCH PROPERTY SHALL BE DETERMINED AS IF THE PROPERTY HAS BEEN LET. 13. NOW, THE PROVISIONS OF SECTION 23 (4) (B) ARE VERY CLEAR THAT WHERE THE PROPERTY CONSISTS OF MORE THAN ONE HOUSE, THE A NNUAL VALUE THEREOF SHALL BE DETERMINED U/S 23 (1), AS IF SUCH PROPERTY HAD BEEN LET. THIS RE-DIRECTS US TO SECTION 23 (1). APPLYING SECTION 23 (1) TO THE FACTS OF THE PRESENT CASE, IT IS SECTION 23 (1) (C) WHICH SHALL AGAIN COME INTO PLAY INASMUCH AS IT REMAINS UNDISPUTED, AS OBSERVED HEREINABOVE, THAT THE PROPERTY WAS LET, BUT WAS VACANT DURING THE YEA R, DUE TO WHICH VACANCY, THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE ASSESSEE IN RESPECT OF SUCH PROPERTY WAS NIL. NIL RENT, THEN, I T CANNOT BE GAINSAID, IS EVIDENTLY LESS THAN THE SUM FOR WHICH THE PROPER TY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. 14. ON THIS SCORE ITSELF, THE GRIEVANCE OF THE DEPA RTMENT LOSES WHATEVER FORCE IT COULD HAVE HAD, IF ANY. 15. THEN, REVERTING TO SECTION 23 (4), IT MAKES REFERENCE TO 'PROPERTY REFERRED TO IN SECTION (2)' OF SECTION 23 . SECTION 23 (2) TALKS OF 'THE PROPERTY' AND THE ONLY DIFFERENCE IS THAT WHEREAS SECTION 23 (2) TALKS OF A HOUSE OR A PART OF A HOUSE AND SECTION 23 (4) CONSIDERS PROPERTY CONSISTING OF MORE THAN ONE HOUSE. AS PER SECTION 23 (4) (A), THE CONCESSION WILL BE AVAILABLE TO THE ASSESSEE ONLY W ITH REGARD TO ONE OF THE HOUSES CONSTITUTING THE PROPERTY AND THE ALV OF THE REMAINING HOUSES SHALL HAVE TO BE DETERMINED, IN CASE, ALL TH E HOUSES ARE IN THE OCCUPATION OF THE ASSESSEE. IN THE PRESENT FACTS, T HIS IS NOT THE CASE AND THE TWO HOUSES, AS DISCUSSED, WERE LET EARLIER, BUT WERE LYING VACANT DURING THE YEAR. AS SUCH, SECTION 23 (4)(A) IS NOT APPLICABLE. 16. SECTION 23 (4)(B) IS APPLICABLE, AS CONSIDERED, AND IT LEADS BACK TO SECTION 23 (1). SO THE SITUATION IS BACK TO SQUARE ONE. 17. UNDOUBTEDLY, IT WAS TO CURE THE INEQUITY OF TAX ING VACANT PROPERTIES UNDER A NOTIONAL CHARGE, THAT SECTION 23 (1)(C) WAS BROUGHT ON THE STATUTE BOOK BY VIRTUE OF THE FINANCE ACT OF 2001 W.E.F. 01.04.2002, AS RIGHTLY CONTENDED ON BEHALF OF THE A SSESSEE, IN ORDER TO PROVIDE SIMPLIFIED DETERMINATION OF ANNUAL VALUE OF PROPERTY ON ALLOWING DEDUCTIONS IN COMPUTING THE ALV ITSELF ON ACCOUNT OF VACANCY AND UNREALIZED RENT. ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 14 18. THUS, LOOKED AT FROM ANY ANGLE, IT IS THE PROVI SIONS OF SECTION 23 (1)(C) OF THE ACT WHICH ARE APPLICABLE HERETO AND NONE OTHER. ACCORDINGLY, WE HOLD HAT THE LD. CIT (A) WAS CORREC T IN APPLYING THE SAID SECTION TO THE PRESENT CASE. 19. FOR THE ABOVE DISCUSSION, FINDING NO MERIT IN T HE GROUNDS TAKEN BY THE DEPARTMENT, THE SAME ARE REJECTED. 20. IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. THE LD. AR OF THE ASSESSEE HAS ALSO SUBMITTED THAT T HE ISSUE IS COVERED BY THE DECISION OF THE HONBLE ITAT DELHI BENCHES IN THE CASE OF ACIT VS DR. PRABHA SANGHI (2012) 139 ITD 504. HE ALSO PL EADED THAT THE FACTS OF THE ASSESSEES CASE ARE SIMILAR TO THAT CA SE, THEREFORE, THE ASSESSEES APPEAL DESERVES TO BE ALLOWED. 9. ON THE CONTRARY, THE LD DR HAS RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW. 10. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. AFTER CONSIDERING THE HEAR ING, I FIND THAT THE CASE OF THE ASSESSEE IS SIMILAR TO THE FACTS DECIDE D BY THE ITAT, DELHI BENCHES, DELHI IN THE CASE OF ACIT VS DR. PRABHA SAN GHI (SUPRA), THEREFORE, RESPECTFULLY FOLLOWING THE SAME, I ALLOW T HE GROUND NO. 2 AND 3 OF THE ASSESSEES APPEAL. ITA 639/JP/2016_ MAHESH KR. GUPTA VS ITO 15 11. GROUND NO. 4 OF THE APPEAL IS GENERAL IN NATURE , DOES NOT REQUIRE ANY ADJUDICATION. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/07/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11 TH JULY, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI MAHESH KUMAR GUPTA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-2(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 639/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR