EVEREST KANTO INVESTMENT & FINANCE LTD, MUMBAI V. DCIT 8(1), MUMBAI

ITA 717/MUM/2011

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8061 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 25-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINSHAN
• Assessee Lawyers: PANKAJ TOPRANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI RAM LAL NEGI, JM ./ I.T.A. NO. 717/MUM/2011 ( / ASSESSMENT YEAR: 2007 - 08 ) M/S. EVEREST KAN TO INVESTMENT & FINANCE LTD. 501, RAHEJA CENTRE, FREE PRESS JOURNAL MARG, 214, NARIMAN POINT, MUMBAI - 400 021 / VS. ASST. CIT, CENTRAL CIRCLE 20, 401, AAYAKAR BHAWAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACE 4794 L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PANKAJ TOPRANI / RESPONDENT BY : SHRI M. C. OMI NINSHAN / DATE OF HEARING : 04.12.2017 / DATE OF PRONOUNCEM ENT : 04.12. 2017 / O R D E R PER SHAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 39 , MUMBAI (CIT(A) FOR SHORT) DATED 26.10.2010 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y. ) 2007 - 08. 2. THE GROUNDS OF APPEAL READ AS UNDER: 2 ITA NO. 717/MUM/2011 (A.Y. 2007 - 08) M/S. EVEREST KANTO INVESTMENT & FINANCE LTD. VS. ASST. CIT 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRECTING THE ASSESSING OFFICER TO ARRIVE AT THE FAIR RENTAL VALUE BASED ON THE VALUE FOR ASSESSMENT YE AR 2004 - 05 AS AGAINST RENTAL VALUE DECLARED BY THE ASSESSEE. 3. IN THIS CASE, THIS MATTER WAS EARLIER DECIDED BY THE TRIBUNAL VIDE ORDER DATED 13.09.2013 IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING ORDER: 3. AT THE OUTSET, IT HAS BEEN POINTED OUT THAT AN I DENTICAL ISSUE RAISED IN THE GROUNDS OF APPEAL HAS BEEN DECIDED BY THE ITAT IN FAVOUR OF THE ASSESSEE IN THE ASSESSEES OWN CASE IN ITA NOS. 1718 TO 1722/MUM/2009 FOR THE A.YS. 2001 - 02 TO 2006 - 07 AND IN ITA NO. 1747/MUM/2009 FOR THE A.Y. 2005 - 06. THE RELEV ANT FINDNGS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER: IN OUR OPINION, THE ISSUE INVOLVED IN THE PRESENT CASE THUS IS SQUARELY COVERED BY THE DECISION OF CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RECLAMATION REALTY INDIA P. LTD. (SUPRA) WHICH IN TU RN HAS RELIED ON AND FOLLOWED BY THE JUDGMENTS OF HONBLE APEX COURT AND HON'BLE JURISDICTIONAL HIGH COURT ON A SIMILAR ISSUE AND RESPECTFULLY FOLLOWING THE SAID JUDICIAL PRONOUNCEMENTS, WE REVERSE THE IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DIR ECT THE A.O. TO ADOPT THE RENT ACTUALLY RECEIVED BY THE ASSESSEE DURING A.Y. 2003 - 04 TO 2006 - 07 AS ANNUAL VALUE OF THE PROPERTY BEING MORE THAN THE MUNICIPAL RETABLE VALUE. THE ADDITIONS MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON THIS ISSUE ARE AC CORDINGLY DELETED ALLOWING GROUND NO. 2 OF THE ASSESSEE S APPEALS FOR A.Y. 2003 - 04 TO 2006 - 07. IN THE ABSENCE OF ANY CONTRADICTORY FACTS BROUGHT ON RECORD BY THE REVENUE, WE, FOLLOWING THE AFOREMENTIONED ORDER OF THE ITAT, DECIDE THE GROUND ACCORDINGLY IN FAVOUR OF THE ASSESSEE IN THE SAME LINE AS AFOREMENTIONED. 4. AGAINST THE ABOVE ORDER, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THE HONBLE HIGH COURT VIDE ORDER DATED 17.11.2016 HAD HELD AS UNDER: 4. THE IMPUG NED ORDER OF THE TRIBUNAL DATED 13 TH SEPTEMBER, 2016 ALLOWED THE RESPONDENT - ASSESSEES APPEAL BY RELYING UPON ITS DECISION RENDERED IN RESPECT OF THE SAME RESPONDENT - ASSESSEE FOR THE ASSESSMENT YEARS 2001 - 02 TO 3 ITA NO. 717/MUM/2011 (A.Y. 2007 - 08) M/S. EVEREST KANTO INVESTMENT & FINANCE LTD. VS. ASST. CIT 2006 - 07 TO DETERMINE THE FAIR RENT. THE IMPUG NED ORDER HAS DIRECTED THE ASSESSING OFFICER TO ADOPT RENT ACTUALLY RECEIVED BY THE RESPONDENT - ASSESSEE DURING THE ASSESSMENT YEAR 2003 - 04 AS THE ANNUAL VALUE OF THE PROPERTY AS IT IS MUCH MORE THAN THE MUNICIPAL RATEABLE VALUE. THE EXERCISE OF DETERMIN IN G THE ANNUAL VALUE HAS TO BE DONE INDEPENDENTLY FOR EACH ASSESSMENT YEAR TAKING INTO ACCOUNT THE RENT WHICH IS RECEIVED AND THE MUNICIPAL RATEABLE VALUE IN THE SUBJECT ASSESSMENT YEAR. THIS EXAMINATION HAS NOT BEEN DONE BY THE TRIBUNAL IN THE IMPUGNED ORDER . 5. THEREFORE, THE QUESTION AS FRAMED FOR OUR CONSIDERATION IS ANSWERED IN THE NEGATIVE I.E. IN FAVOUR OF THE APPELLANT - REVENUE AND AGAINST THE RESPONDENT - ASSESSEE. CONSEQUENTLY, THE IMPUGNED ORDER DATED 13 TH SEPTEMBER, 2016 OF THE TRIBUNAL IS HEREBY S ET ASIDE AND THE APPEAL IS RESTORED TO THE FILE OF THE TRIBUNAL FOR FRESH DISPOSAL IN ACCORDANCE WITH LAW. 5. PURSUANT TO THE ABOVE DIRECTION OF THE HONBLE HIGH COURT, THIS APPEAL HAS BEEN HEARD BY US. UPON CAREFUL CONSIDERATION, WE NOTE THAT THE HONBLE HIGH COURT HAS EXPOUNDED THAT THE EXERCISE OF DETERMINING THE ANNUAL VALUE HAS TO BE DONE INDEPENDENTLY FOR EACH YEAR TAKING INTO ACCOUNT THE RENT WHICH IS RECEIVED AND THE MUNICIPA L RATEABLE VALUE IN THE SUBJECT ASSESSMENT YEAR. IN THE PRESENT CASE, T HIS EXERCISE HAS NOT BEEN DONE. FURTHERMORE, FOR MAKING THIS EXERCISE RELEVANT, FACTUAL MATERIALS ARE ALSO NOT ON RECORD. HENCE , WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE AFRESH TAKING INTO ACCO UNT THE HON'BLE JURISDICTIONAL HIGH COURT DIRECTION AS ABOVE WITH REFERENCE TO THE FACTUAL DETAILS. NEEDLELESS TO ADD, THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. BOTH THE COUNSEL FAIRLY AGREED TO THE PROPOSITION. 4 ITA NO. 717/MUM/2011 (A.Y. 2007 - 08) M/S. EVEREST KANTO INVESTMENT & FINANCE LTD. VS. ASST. CIT 6. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.2017 SD/ - SD/ - ( RAM LAL NEGI ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 04.12.2017 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI