Nahid Finlease (P) Ltd., New Delhi V. ITO, Ward- 17(3), New Delhi

ITA 6915/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4212 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 17-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.6915/DEL/2017 ASSESSMENT YEAR : 2012-13 NAHID FINLEASE (P) LTD., 16 TH FLOOR, STATESMAN HOUSE, BARAKHAMBA ROAD, NEW DELHI. VS. ITO, WARD -17(3), NEW DELHI. PAN : AABCN5146L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ROHIT GOEL, ADV. DEPARTMENT BY : SHRI ARUN KUMAR YADAV, SR.DR DATE OF HEARING : 03-01-2018 DATE OF PRONOUNCEMENT : 03-01-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 14.09.2017 OF CIT(A)- 28, NEW DELHI RELATING TO ASS ESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) [ CIT (A)] ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER DATED 05.03.2015 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT WHEREIN INCOME OF T HE APPELLANT WAS ASSESSED AT RS. 18,02,651 AS AGAINST NIL INCOME DECLARED BY THE APP ELLANT IN THE RETURN OF INCOME. 1.1 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN AS SESSING INCOME FROM HOUSE PROPERTY AT RS. 18,02,651 WITH RESPECT TO OFFICE SP ACE OWNED BY THE APPELLANT WITHOUT APPRECIATING THAT THE SAME WAS USED BY THE APPELLANT FOR THE BUSINESS PURPOSES AND THEREFORE, NOT ASSESSABLE TO TAX UNDER HEAD 'INCOME FROM HOUSE PROPERTY'. 1.2 WITHOUT PREJUDICE, THE CIT(A) ERRED ON FACTS AN D IN LAW IN NOT RESTRICTING THE VALUE OF ABOVE HOUSE PROPERTY TO 1/3 RD OF THE TOTAL AREA, BEING THE AREA GIVEN ON LEASE BY THE APPELLANT AND EXCLUDING THE REMAINING 2/3 RD AREA INASMUCH AS THE SAME 2 ITA NO.6915/DEL/2017 WAS UTILIZED BY THE APPELLANT FOR OWN BUSINESS AND PROFESSION. THE APPELLANT CRAVES THE LEAVE TO ADD, AMEND, ALTER OR VARY FROM THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF LENDING AND ADVA NCING MONEY, GIVING CREDIT AND FINANCE ETC.. IT FILED ITS RETURN OF IN COME ON 10.08.2013 DECLARING NIL INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDING S, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITY. HE OBSERVED THAT THE ASSESSEE OWNS OFFICE SPACE NUMBER A-1601 & B-1601, 16 TH FLOOR, STATESMAN HOUSE, BARAKHAMBA ROAD, NEW DELHI HAVING TOTAL SUPER BUILT UP AREA OF 5402 SQ.FT.. HE, THEREFORE, ASKED THE A SSESSEE TO EXPLAIN AS TO WHY THE COMPANY HAD NOT SHOWN RENTAL INCOME OF THE PROPERTY AND ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE DEEMED RENTAL INCOME BE NOT T AKEN AS INCOME FROM PROPERTY. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE, THE ASSESSING OFFICER BROUGHT TO TAX THE FAIR RENTAL IN COME BY DETERMINING THE SAME AT RS.34,02,400/- PER ANNUM. AFTER ALLOWING HOUSE TAX OF RS.8,27,184/- AND DEDUCTION U/S 24(A) AT RS.7,72,565/-, BOTH TOTALING TO RS.15,99,749/-, THE ASSESSING OFFICER DETERMINED THE TAXABLE INCOME OF THE ASSESSEE AT RS.18,02,651/-. 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER. 3 ITA NO.6915/DEL/2017 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET FILED A COPY OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2011-12 VIDE ITA NO.2954/DEL/2016 ORDER DATED 07.12.2016 AND SUBMITT ED THAT THE ISSUE HAS BEEN SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR PASSING THE ORDER AFRESH. HE ACCORDINGLY SUBMITTED THAT HE HAS NO OBJECTION IF T HE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATIO N OF THE INCOME IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL IN ASSESSEES OWN CAS E IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. 7. LD. DR HAS NO OBJECTION FOR THE SAME. 8. IN VIEW OF THE ABOVE AND IN VIEW OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE IMMEDIATELY PRECEDING ASSESSMENT YE AR SETTING-ASIDE THE VERY SAME ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSE SSING OFFICER FOR ADJUDICATION OF THE ISSUE AFRESH IN THE LIGHT OF THE DIRECTION OF T HE TRIBUNAL. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACC ORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATIST ICAL PURPOSES. 4 ITA NO.6915/DEL/2017 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 03 RD JANUARY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 03-01-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI