SANGEETA MAHAJAN, MUMBAI V. ITO 23(1)(1), MUMBAI

ITA 68/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8903 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 04-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G GURUSAMY
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, , , , - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI . . , , !' !' !' !' , ,, , # # # # $ $ $ $ BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 68/MUM./2012 ( #& ' (' / ASSESSMENT YEAR : 200708 ) MRS. SANGEETA MAHAJAN MAHAJAN MILLS COMPOUND L.B.S. MARG, VIKHROLI (W) MUMBAI 400 079 .. )* / APPELLANT & V/S INCOME TAX OFFICER WARD22(1)(1), PRATYAKSHAKAR BHAVAN BANDRAKURLA COMPLEX BANDRA (E), MUMBAI 400 051 .... +,)* / RESPONDENT ) . / PERMANENT ACCOUNT NUMBER AAJPM2719H #& '. / 0 / ASSESSEE BY : MR. SURINDER MEHTA 1 / 0 / REVENUE BY : MR. G. GURUSAMY & / / DATE OF HEARING 27.08.2012 ! 23( / / DATE OF ORDER 07.09.2012 ! ! ! ! / ORDER !' !' !' !' , ,, , # # # # 4 4 4 4 / PER AMIT SHUKLA, J.M. THE PRESENT APPEAL PREFERRED BY ASSESSEE, IS DIRECT ED AGAINST THE IMPUGNED ORDER DATED 25 TH NOVEMBER 2011, PASSED BY THE LEARNED COMMISSIONER (APPEALS)XXXIII, MUMBAI, FOR THE QUAN TUM OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (F OR SHORT THE ACT), FOR MRS. SANGEETA MAHAJAN 2 ASSESSMENT YEAR 200708. THE GROUNDS RAISED BY THE ASSESSEE, READ AS FOLLOWS: 1.A) THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) H AS ERRED IN NOT DISCUSSING GROUND NO. 3(B)&(C) OF THE GROUNDS OF AP PEAL FILED BEFORE HER WHEREIN IT WAS CONTENDED THAT AS PER THE PROVIS IONS OF SECTION 22 OF THE ACT, WHERE THE PROPERTY IS VACANT DURING WHO LE OR PART OF THE PREVIOUS YEAR THE AMOUNT RECEIVED OR RECEIVABLE IS ASSESSABLE. IN THE PRESENT CASE THE AMOUNT RECEIVABLE WAS NIL AND ACCO RDINGLY INCOME WAS SHOWN AT NIL AND THE SAME SHOULD BE ACCEPTED. B) THAT AS THE PROPERTY AT VERSOVA WAS LYING VACANT THROUGHOUT THE YEAR AND THE APPELLANT WAS TRYING TO FIND GOOD TENA NT FOR THE SAME, THE INCOME FROM HOUSE PROPERTY IN RESPECT OF THE SA ME AS PER THE PROVISIONS OF SECTION 22 OF THE ACT SHOULD BE ASSES SED AT NIL. 2.A)THAT WITHOUT PREJUDICE TO THE GROUND NO. 1 MENT IONED ABOVE, IT IS SUBMITTED THAT WHEN THE CERTIFICATE FROM THE SOCIET Y GIVING RATEABLE VALUE WAS BEFORE THE ASSESSING OFFICER AND THE CIT( APPEALS) THEY HAVE ERRED IN ENHANCING THE RATEABLE VALUE OF THE PROPER TY TO RS.1,88,192/-. B) THAT THE CO-OPERATIVE SOCIETY ISSUES THE RATEABL E VALUE CERTIFICATE BASED ON THE RATEABLE VALUE DETERMINED BY THE MUNICIPAL CORPORATION AND THE MUNICIPAL TAX LEVIED BY THE MUN ICIPAL CORPORATION AND AS SUCH THE SAID CERTIFICATE IS OF GOOD EVIDENT IAL VALUE AND IS TO BE ACCEPTED. C) THAT COPIES OF THE MUNICIPAL BILLS FOR MAINTENAN CE CHARGES ISSUED BY THE SOCIETY SHOWING THE MUNICIPAL TAXES C HARGED WERE ALSO FILED BEFORE THE ASSESSING OFFICER AND THE CIT(APPE ALS) AND THEY HAVE ERRED IN NOT ACCEPTING THE SAME. D) THAT THE RATABLE VALUE OF THE PROPERTY MAY BE RE DUCED TO ` 14,000 ONLY . 2. THE ONLY ISSUE RAISED IN THIS APPEAL RELATES TO ENH ANCED RATABLE VALUE OF THE PROPERTY WHICH LIED VACANT THROUGHOUT THE YE AR. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER NOTED THAT THE ASSESSEE IS THE OWNER OF TWO PROPERT IES, ONE OF WHICH WAS CLAIMED AS SELF OCCUPIED AND OTHER WAS FLAT NO.605, KARAN CHS, VERSOVA, ON WHICH, NO INCOME WAS OFFERED. IN RESPONSE TO THE SH OW CAUSE NOTICE BY THE ASSESSING OFFICER AS TO WHY THE INCOME OF THE HOUSE PROPERTY IN RESPECT OF VERSOVA FLAT SHOULD NOT BE COMPUTED, THE ASSESSEE S UBMITTED THAT RATABLE VALUE FOR THE YEAR ENDING ON 31 ST MARCH 2007, OF THE SAID PROPERTY WAS ` 14,000, AND IN SUPPORT OF THIS, CERTIFICATE FROM TH E SAID SOCIETY WAS ALSO MRS. SANGEETA MAHAJAN 3 FURNISHED. THE ASSESSING OFFICER, HOWEVER, HELD THA T IN VIEW OF THE PROVISIONS OF SECTION 22, THE ANNUAL RATABLE VALUE HAS TO BE C OMPUTED IN TERMS OF CLAUSE (A) OF SECTION 22 AND HE CALCULATED 8.5% OF THE TOTAL COST OF THE PROPERTY I.E., 22,14,023, AND DETERMINED THE INCOME OF THE FLAT AT ` 1,88,192. 4. AGGRIEVED, THE ASSESSEE WENT IN FIRST APPEAL BUT WI THOUT ANY SUCCESS. BEFORE THE COMMISSIONER (APPEALS), SPECIFIC ISSUE W AS RAISED IN GROUNDS NO.3(A), (B) AND (C), THAT THE SAID FLAT WAS LYING VACANT AND IN VIEW OF THE PROVISIONS OF SECTION 23, WHERE THE PROPERTY IS VAC ANT DURING THE YEAR, WHOLE AND PART OF THE PREVIOUS YEAR, THE AMOUNT RECEIVED OR RECEIVABLE IS ASSESSABLE. THE COMMISSIONER (APPEALS) HAS NOT ADJU DICATED THE SAID GROUND AND CONFIRMED THE FINDINGS GIVEN BY THE ASSESSING O FFICER. BEING AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUN AL. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE U S THAT THIS SPECIFIC GROUND GOES TO THE VERY ROOT OF THE ISSUE AND THE S AME HAS NOT BEEN ADJUDICATED BY THE COMMISSIONER (APPEALS) WHICH IS EVIDENT FROM THE DISCUSSION APPEARING IN PARAS-5 TO 5.4. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, FAIRLY ADMITTED THAT THE SAID GROUND HAS NOT BEEN ADJUDICA TED UPON. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS OF THE PARTIES, THE FINDINGS OF THE ASSESSING OFFICER AS WELL AS OF THE COMMISSIONER (APPEALS) AND THE MATERIAL AVAILABLE ON THE RECORD. WE FIND T HAT GROUNDS NO.3(B) AND 3(C), WHICH WERE SPECIFICALLY TAKEN BEFORE THE COMM ISSIONER (APPEALS) WAS NOT BEING ADJUDICATED UPON. SINCE THESE GROUNDS CON SIST OF A VERY VITAL BEARING ON THE COMPUTATION OF INCOME FROM HOUSE PRO PERTY UNDER SECTION 23, THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER I S RESTORED TO THE FILE OF THE COMMISSIONER (APPEALS) TO DECIDE THE ISSUE DENOVO A ND IN ACCORDANCE THE PROVISIONS OF LAW. NEEDLESS TO MENTION HERE THAT TH E ASSESSING OFFICER SHOULD ALLOW DUE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. MRS. SANGEETA MAHAJAN 4 8. . 7 #& '. 8/ 9:; < / 1 => ? 8. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PU RPOSES. ! / 3( @ A&7 7 TH SEPTEMBER 2012 3 / B ? ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH SEPTEMBER 2012 SD/- . .. . . . . . R.S. SYAL ACCOUNTANT MEMBER SD/- !' !' !' !' # # # # AMIT SHUKLA JUDICIAL MEMBER MUMBAI, A& A& A& A& DATED: 7 TH SEPTEMBER 2012 ! / +# C DC( / COPY OF THE ORDER FORWARDED TO : (1) #& '. / THE ASSESSEE; (2) 1 / THE REVENUE; (3) E () / THE CIT(A); (4) E / THE CIT, MUMBAI CITY CONCERNED; (5) CHB +# #& , , / THE DR, ITAT, MUMBAI; (6) BI' J / GUARD FILE. ,C +# / TRUE COPY !& / BY ORDER + 1. KL / PRADEEP J. CHOWDHURY .M #&1 K / SR. PRIVATE SECRETARY 9 / = 1 / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI MRS. SANGEETA MAHAJAN 5 DATE INITIAL ORIGINAL DICTATION PAD IS ENCLOSED AT THE END OF TH E FILE. 1. DRAFT DICTATED ON 30.8.2012 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 3.9.2012 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 3.9.2012 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 3.9.2012 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 3.9.2012 SR.PS 6. DATE OF PRONOUNCEMENT 7.9.2012 SR.PS 7. FILE SENT TO THE BENCH CLERK 7.9.2012 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER