BHAVESH P. GANDHI, MUMBAI V. ACIT CEN CIR 38, MUMBAI

ITA 6579/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5393 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Reasonable cause
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM ITA NO. 6579 / MUM/20 16 ( ASSESSMENT YEAR : 2008 - 09 ) ITA NO. 6581 /MUM/20 16 ( ASSESSMENT YEAR : 2011 - 12 ) ITA NO. 5930 /MUM/20 16 ( ASSESSMENT YEAR : 2012 - 13 ) MR. BHAVESH P GANDHI C/O. SKIL HOUSE 209, BANK STREET CROSS LANE FORT, MUMBAI - 400023 VS. ACIT, CENTRAL CIRCLE - 38 NOW DCIT CC 6(3) 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT MUMBAI - 400021 PAN/GIR NO. AABPG9515D APP ELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI RUTURAJ H GURJAR REVENUE BY SHRI SUMAN KUMAR DATE OF HEARING 10 / 07 /201 8 DATE OF PRONOUNCEMENT 30 / 07 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) - 54, MUMBAI DATED 08/07/2016 FOR A.Y.2008 - 09, 2011 - 12 AND 2012 - 13, IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE IT ACT. ITA NO. 6579/MUM/2016 AND OTHER TWO APPEALS MR. BHAVESH P GANDHI 2 2. CO MMON GRIEVANCE OF ASSESSEE IN BOTH THE YEARS PERTAINS TO ADDITION MADE BY AO UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN RESPECT OF FLAT OF SAGAR VILLA . 3. GROUND TAKEN BY THE ASSESSEE IN THE A.Y.2008 - 09 READS AS UNDER: - 1. ON FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION MADE BY THE AO OF RS.4,62,9Q9/ - UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN RESPECT OF THE FLA T AT SAGAR VILLA, WHICH WAS EST IMATED BY THE AO. THE CIT(A) FURTHER ERRED IN REJECTING THE APPELLANT'S HAVING OCCUPIED THE SAME, THE ALV OF THE PROPERTY WAS RS.NIL. WITHOUT PREJUDICE TO THE ABOVE THE ALV ESTIM ATED BY THE, AO IN RESPECT OF THE APPELLANT'S SHARE IN SAGAR VILLA IS EXCESSIVE. 2. ON FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN REJECTING THE APPELLANT'S PLEA THAT THE ADDITION MADE OF RS.4.62 LAK HS AS STATED IN THE ABOVE GROUND IS BAD IN LAW. 3. THE APPELLANT RESERVES HIS RIGHTS TO ADD TO, ALTER, AMEND, MODIFY OR DELETE ANY OF THE GROUNDS TAKEN UP IN THIS APPEAL. 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. THERE IS MARGINAL DEL AY IN FILING APPEALS. AFTER GOING THROUGH THE REASONS FOR DELAY AND THE AFFIDAVIT FILED IN SUPPORT OF IT, WE ARE CONVINCED THAT THERE WAS A REASONABLE CAUSE FOR DELAY. IN THE SUBSTANTIAL INTEREST OF JUSTICE, WE CONDONE THE DELAY AND APPEALS ARE BEING HEARD FOR ADJUDICATING ON MERIT. 5. THE FACTS OF THE CASE FOR A.Y.2008 - 09 ARE THAT THE ASSESSEE HAD FILED ORIGINAL RETURN ON 18.09.2008 DECLARING TOTAL INCOME OF RS. 1,37,65,300/ - . THE SAME WAS PROCESSED U/S 143(1) OF THE ACT ON 27.03.2010 ASSESSING TOTAL INCOM E AT RS. 1,37,65,300/ - . THE ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 08.12.2010 ASSESSING TOTAL INCOME AT RS. 1,37,65,298/ - . SUBSEQUENTLY SEARCH & SEIZURE ACTION WAS CARRIED OUT U/S 132 OF THE ACT ON 12.10.2011 ON M/S PIPAVAV DEFENCE. ITA NO. 6579/MUM/2016 AND OTHER TWO APPEALS MR. BHAVESH P GANDHI 3 6. DURING TH E COURSE OF ASSESSMENT, THE AO OBSERVED FROM RECORDS, THAT THE ASSESSEE HAS TWO HOUSE PROPERTIES, ONE BEING FL AT AT BREACH CANDY APARTMENTS TREATED AS SOP AND OTHER AT SAGAR VILLA. NO INCOME FROM HOUSE PROPERTY AT SAGAR VILLA HAS BEEN DECLARED DURING THE Y EAR. THE AO OBSERVED THAT I N THE A.Y. 2007 - 08, THE HOUSE PROPERTY INCOME OF AFORESAID FLAT WAS ADOPTED AT RS. 4,62,909 / - , ACCORDINGLY HE REPEATED THE SAME IN THIS ASSESSMENT YEAR AS WELL. 7. BY THE IMPUGNED ORDER CIT(A) CONFIRMED THE ACTION OF THE AO AGAIN ST WHICH ASSESSEE IN FURTHER APPEAL BEFORE US. 8. IT WAS ARGUED BY LEARNED AR THAT AO HAS NOT CONSIDERED JUDICIAL PRONOUNCEMENTS OF THE JURISDICTIONAL HIGH COURT IN CASE OF TIP TOP TYPOGRAPHY 368 ITR 330 . 9 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFU LLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT ADDITION PERTAINS TO ESTIMATION OF RATEABLE VALUE IN RESPECT OF THE JOINT PROPERTY AT SAGAR VILLA . THE ASSESSEE ALONG WITH HIS FATHER - MR. PRATAPRAI GANDHI, SISTER - IN - LAW MRS. NEHA NIKHIL GANDHI & SPOUSE - MRS. RUPALI B. GANDHI, ARE JOINT OWNERS IN EQUAL PROPORTION IN THE SAID PROPERTY. THE PROPERTY IN QUESTION WAS FULLY OCCUPIED BY THE ASSESSEE'S FATHER - IN - LAW, AS SELF - OCCUPIED PROPERTY AND THE ASSESSEE WAS NOT LET OUT THE SAME. 10. LEAR NED AR PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN CASE OF ANOTHER FAMILY MEMBER IN ITA NO.6582/MUM/2016 AND 6578/MUM/2016 FOR THE VERY SAME ASSESSMENT YEAR 2010 - 11 AND 2011 - 12 ORDER DATED ITA NO. 6579/MUM/2016 AND OTHER TWO APPEALS MR. BHAVESH P GANDHI 4 08/10/2017, WHEREIN UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE TR IBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO AFTER HAVING THE FOLLOWING OBSERVATION. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PARTIES AND HAVE NOTED THAT THE AO WHILE FRAMING THE ASSESSMENT ORDER MADE THE ADDITION UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' ON THE BASIS OF ESTIMATION. THE ASSESSING OFFICER HAS NOT MADE ANY INDEPENDENT ENQUIRY BEFORE MAKING THE ADDITION. THE ORDER PASSED BY ASSESSING OFFICER IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 OF THE ACT. THUS, CONSIDER ING THE FACTS OF THE CASE AND THE SUBMISSION OF BOTH THE PARTIES, THE GROUND OF APPEAL RAISED BY ASSESSEE IS RESTORED TO THE FILE OF AO WITH THE DIRECTION TO PASS THE ORDER AFRESH AFTER CONSIDERING THE DECISION OF JURISDICTIONAL HIGH COURT IN CASE OF CIT V S. TIP TOP TYPOGRAPHY (SUPRA). NEEDLESS TO SAY THAT BEFORE PASSING THE ORDER, THE AO SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. AS THE FACTS AND CIRCUMSTANCES DURING THE YEARS UNDER CONSIDERATION ARE SAME, WE RESTORE THE MATTER BACK TO THE F ILE OF THE AO FOR DECIDING AFRESH IN TERMS OF THE DECISION OF THE TRIBUNAL REFERRED ABOVE AS WELL AS THE ORDER OF THE JURISDICTIONAL HIGH COURT IN CASE OF TIP TOP TYPOGRAPHY (SUPRA). 1 2 . IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 / 07 /201 8 SD/ - ( AMARJIT SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 30 / 07 /201 8 K ARUNA SR. PS ITA NO. 6579/MUM/2016 AND OTHER TWO APPEALS MR. BHAVESH P GANDHI 5 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//