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

ITA 6582/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9395 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 31-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 09-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B PRUSETH
• Assessee Lawyers: S K MUTSADDI
• Keywords: Rule of consistency; Period of limitation; Condonation of delay
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D,MUM BAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.6582 & 6578/MUM/2016 (ASSESSMENT YEAR- 2010- 11 & 2011-12) MRS. RUPALI BHAVESH GANDHI C/O SKIL HOUSE, 209, BANK STREET CROSS LANE, FORT, MUMBAI-400023 PAN: AEIPG4028E VS. DCIT-CC-6(3), 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400021. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. MUTSADDI (AR) REVENUE BY : SHRI B. PRUSETH (DR) DATE OF HEARING : 05.10.2017 DATE OF PRONOUNCEMENT : 05.10.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS SET OF TWO APPEAL BY ASSESSEE UNDER SECTION 25 3 OF INCOME TAX ACT (THE ACT) ARE DIRECTED AGAINST TWO DIFFERENT ORDER OF LD. COMMISSIONER OF INCOME-TAX-54, MUMBAI [HEREINAFTER REFERRED AS LD. CIT(A)] DATED 8 TH JULY 2016 FOR ASSESSMENT YEARS (AY) 2010-11 & 2011-12. T HE FACTS FOR BOTH THE AY ARE IDENTICAL THUS BOTH THE APPEAL IS DECIDE D BY COMMON ORDER. 2. THE PERUSAL OF RECORD REVEALS THAT BOTH THE APPEALS WERE FILED AFTER NINE DAYS OF PRESCRIBED PERIOD OF LIMITATION. THE ASSESS EE HAS FILED A COMBINED APPLICATION FOR CONDONATION OF DELAY OF 9 DAYS. IN SUPPORT OF APPLICATION THE AFFIDAVIT OF SHRI MUTSADDI, LD. AUTHORIZED REP RESENTATIVE (AR) OF THE ASSESSEE IS FILED. IN THE AFFIDAVIT, THE DEPONENT H AS STATED THAT HE IS 2 ITA NO. 6582 TO 6578/M/2016 - MRS. RUPALI BHAVESH G ANDHI PRACTICING AS CHARTERED ACCOUNTANT (CA) AND PARTNER OF GPS & ASSOCIATES AND THE DELAY IN FILING THE APPEALS OCCURRED AS HE WAS HOSPITALISED AND OPERATED ON 10.10.2016 FOR BILATERAL INGUNIAL HARNI A AND WAS DISCHARGED ON 12.10.2016. IT WAS ARGUED THAT THE IMPUGNED ORDE R WAS RECEIVED ON 01.09.2016 AND THE ASSESSEE WAS REQUIRED TO FILE AP PEAL ON OR BEFORE BY 31 ST OCTOBER 2016. SINCE, HE WAS NOT ATTENDING THE OFFI CE DUE TO POST OPERATIVE CARE WHICH RESULTED DELAY OF NINE DAYS IN FILING THE APPEALS. THE LD. DR FOR THE REVENUE NOT OBJECTED FOR CONDONING T HE DELAY. CONSIDERING THE CONTENTS OF APPLICATION AND THE AFFIDAVIT, THE DELAY OF NINE DAYS IN FILING THE APPEAL IS CONDONED. 3. FOR APPRECIATION OF FACT, WE ARE REFERRING THE FACT FOR AY 2010-11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 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 R S.13,50,063/- IN RESPECT OF UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN RESPEC T OF THE APPELLANT'S SHARE OF 50% IN THE FLAT AT H-3 BREACH CANDY APARTMENTS A ND 25% SHARE IN SAGAR VILLA, WHICH WAS ESTIMATED BY THE AO. THE CIT(A) FU RTHER ERRED IN REJECTING THE APPELLANT'S ARGUMENT THAT SINCE THE PROPERTIES WERE CO-OWNED AND THE CO- OWNER HAVING OCCUPIED THE SAME, THE ALV OF THE PROP ERTY WAS RS.NIL. WITHOUT PREJUDICE TO THE ABOVE, THE ALVS ESTIMATED BY THE AO IN RESPECT OF THE APPELLANT'S SHARE IN THE PROPERTIES IS EXCESSIV E. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 23.10.2010 DECLARING TOTAL INCOME OF RS. 13,09,600/-. THE ASSESSMENT WAS ACCEPTED UNDER SECTION 143(1) OF THE ACT ON 19.01.2012 AT 3 ITA NO. 6582 TO 6578/M/2016 - MRS. RUPALI BHAVESH G ANDHI THE SAME INCOME AS DECLARED IN THE RETURN OF INCOME . SUBSEQUENTLY, A SEARCH UNDER SECTION 132 WAS CONDUCTED AT THE PREMI SES OF M/S PIPAVAV DEFENCE AND OFFSHORE ENGINEERING CO. LTD. ON 12.10. 2011, THEREAFTER NOTICE UNDER SECTION 153A DATED 21.08.2012 WAS SERV ED UPON THE ASSESSEE. THE ASSESSEE FILED HER RETURN OF INCOME ON 28.10.20 12 DECLARING THE SAME AS IN THE RETURN FILED ON 23.10.2010. THE ASSESSME NT WAS COMPLETED UNDER SECTION 143(3) R.W.S. 153A ON 26.03.2014 ASSESSING THE TOTAL INCOME AT RS.23,33,854/- . THE ASSESSING OFFICER (AO) WHILE P ASSING THE ASSESSMENT ORDER BESIDES THE OTHER ADDITION AND DISALLOWANCE M ADE THE ADDITION OF UNDER THE HEARD INCOME FROM HOUSE PROPERTY IN RES PECT OF ASSESSEES 50% SHARE IN HOUSE PROPERTY IN FLAT NO. H-3, BREACH CAN DY APARTMENTS AND 25% SHARE IN SAGAR VILLA. CONSEQUENT UPON MADE THE ADDITION OF RS.13,50,063/- IN THE TOTAL INCOME OF ASSESSEE. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF AO WAS CONFIRMED. THUS, FURTH ER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRE SENT APPEAL BEFORE US. 5. WE HAVE HEARD LD. AR OF THE ASSESSEE AND LEARNED DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. A R OF THE ASSESSEE ARGUED THAT THE AO WHILE PASSING THE ASSESSMENT ORDER MADE THE ADDITION ON ACCOUNT OF INCOME FROM HOUSE PROPERTY ON THE BASI S OF ESTIMATION. THE AO HAS NOT MADE ANY ENQUIRY REGARDING ANNUAL LETTIN G VALUE (ALV) OF THE HOUSE PROPERTIES OR BROUGHT ANY MATERIAL ON REC ORD. IT WAS FURTHER 4 ITA NO. 6582 TO 6578/M/2016 - MRS. RUPALI BHAVESH G ANDHI ARGUED THAT LD. CIT(A) ALSO CONFIRMED THE ACTION OF AO ON SIMILAR LINES AND WITHOUT MAKING ANY INDEPENDENT ENQUIRY. THE LD . AR OF THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE BOMBAY HIGH COU RT IN CIT VS. TIP TOP TYPOGRAPHY [2014] 368 ITR 330(BOM). THE LD. AR OF THE ASSESSEE PRAYED THAT THE MATTER MAY BE REMANDED TO THE FILE OF AO TO PASS THE ORDER AFRESH AFTER CONSIDERING THE DECISION IN CIT VS. TI P TOP TYPOGRAPHY (SUPRA). ON THE OTHER HAND, THE LD. DR FOR THE REVE NUE SUPPORTED THE ORDER OF AUTHORITIES BELOW. IT WAS SUBMITTED THAT HE HAS NO OBJECTION, IF THE MATTER IS RESTORED TO THE FILE OF AO TO PASS THE OR DER AFRESH IN ACCORDANCE WITH THE DECISION OF HON'BLE BOMBAY HIGH COURT IN C IT VS. TIP TOP TYPOGRAPHY (SUPRA). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES 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 E STIMATION. THE ASSESSING OFFICER HAS NOT MADE ANY INDEPENDENT ENQU IRY BEFORE MAKING THE ADDITION. THE ORDER PASSED BY ASSESSING OFFICE R IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 OF THE ACT. THUS , CONSIDERING THE FACTS OF THE CASE AND THE SUBMISSION OF BOTH THE PARTIES, TH E 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 JURISDICTI ONAL HIGH COURT IN CASE OF 5 ITA NO. 6582 TO 6578/M/2016 - MRS. RUPALI BHAVESH G ANDHI CIT VS. TIP TOP TYPOGRAPHY (SUPRA). NEEDLESS TO SAY THAT BEFORE PASSING THE ORDER, THE AO SHALL GRANT OPPORTUNITY OF HEARIN G TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ITA NO. 6578/MUM/2016 FOR AY 2011-12 8. THE ASSESSEE HAS RAISED THE IDENTICAL GROUNDS OF AP PEAL AS RAISED IN APPEAL FOR AY 2010-11. THE FACT OF THE CASE UNDER CONSIDER ATION IS ALMOST SIMILAR. THUS, CONSIDERING THE PRINCIPLE OF CONSISTENCY, THI S GROUND OF APPEAL RAISED BY ASSESSEE IN THE PRESENT APPEAL IS RESTORED TO TH E FILE OF AO WITH THE SIMILAR OBSERVATION AS MADE IN APPEAL FOR AY 2010-1 1. 9. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH OCTOBER, 2017. 10. SD/-/ SD/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/10/2017 S.K.PS 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/