VIDYABEN BHAGWAN KOTAK, MUMBAI V. DCIT CEN CIR 6(4), MUMBAI

ITA 7213/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2630 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIV GUBGOTRA LD
• Assessee Lawyers: NITESH JOSHI LD
• Section: 153A

Judgement Text

ITA NO.7213-14/MUM/2016 VIDYABEN BHAGWAN KOTAK ASSESSMENT YEARS :2011-12 & 12-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7213/MUM/2016 ( / ASSESSMENT YEAR: 2011-12) & ./ I.T.A. NO.7214/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) VIDYABEN BHAGWAN KOTAK 16, BANK STREET MUMBAI-400 00. / VS. DCI T - CC - 6(4) ROOM NO.1926, 19 TH FLOOR AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-21. ! ./ ./PAN/GIR NO. AGQPK-9573-N ( !# /APPELLANT ) : ( $!# / RESPONDENT ) ASSESSEE BY : NITESH JOSHI- LD. AR REVENUE BY : RAJIV GUBGOTRA - LD.DR / DATE OF HEARING : 25/02/2019 / DATE OF PRONOUNCEMENT : 08/03/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEALS BY ASSESSEE FOR ASSESSMENT YEA RS [AY] 2011- 12 AND 2012-13 CONTEST SEPARATE ORDERS OF FIRST APP ELLATE AUTHORITIES. SINCE, COMMON ISSUES ARE INVOLVED, WE PROCEED TO DI SPOSE-OFF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENI ENCE & BREVITY. ITA NO.7213-14/MUM/2016 VIDYABEN BHAGWAN KOTAK ASSESSMENT YEARS :2011-12 & 12-13 2 ITA NO.7213/MUM/2016, AY-2011-12) 2.1 BY WAY OF THIS APPEAL, THE ASSESSEE CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-54, MUMBAI, [C IT(A)], NEW APPEAL NO. CIT(A)-54/ACCC-39/IT-02/14-15 DATED 12/0 9/2016. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. ASSIST ANT COMMISSIONER OF INCOME TAX-CENTRAL CIRCLE-39, MUMBA I [AO] U/S.143(3) R.W.S. 153A ON 18/02/2014 WHEREIN INCOME OF THE ASS ESSEE WAS DETERMINED AT RS.103.81 LACS AFTER CERTAIN ADDITION S AS AGAINST RETURNED INCOME OF RS.91.57 LACS FILED BY THE ASSESSEE ON 30 /07/2011 U/S 139. THE ASSESSMENT U/S 153A GOT TRIGGERED PURSUANT TO S EARCH ACTION U/S.132 ON 20/03/2012 IN CASE OF J.M. BAXI GROUP WHEREIN CERTAIN BANK LOCKERS BELONGING TO ASSESSEE WERE SEARCHED. 2.2 THE DETAILS OF VARIOUS PROPERTIES HELD BY THE A SSESSEE WAS FOUND IN ONE OF THE LOCKERS, THE PERUSAL OF WHICH REVEALED T HAT THE ASSESSEE WAS IN POSSESSION OF VARIOUS PROPERTIES. SINCE, THE ASS ESSEE HAD NOT OFFERED ANY DEEMED RENT FROM THESE PROPERTIES AS PER THE PR OVISIONS OF SECTION 23(1), LD. AO PROCEEDED TO BRING TO TAX ESTIMATED R ENTAL VALUE OF THESE PROPERTIES. ALTHOUGH THE ASSESSEE DEFENDED HER STAN D VIDE REPLY DATED 21/01/2014, HOWEVER, NOT CONVINCED, LD. AO, TREATIN G ONE PROPERTY AS SELF-OCCUPIED PROPERTY, ESTIMATED THE RENTAL VALUE OF THE PROPERTIES IN THE FOLLOWING MANNER: - SR. NO . DESCRIPTION OF THE PROPERTY WITH SHARE SQ.FT. PERTAINED TO THE ASSESSEE RATE LETTABLE VALUE PER MONTH (RS.) ANNUAL LETTABLE VALUE (RS.) 1. 1/3 RD UNDIVIDED SHARE IN FLAT NO.18 AT KALPANA, 96, NETAJI SUBHASH ROAD, MUMBAI. 569.85 50 28492.5 341910 2. FLAT AT JHOOTHIKA CO-OPERATIVE HOUSING SOCIETY LIMITED, FLAT NO.1, 22, NAUSHIR BHARUCHA ROAD, MUMBAI. 416.01 41 17056.41 204677 ITA NO.7213-14/MUM/2016 VIDYABEN BHAGWAN KOTAK ASSESSMENT YEARS :2011-12 & 12-13 3 3. FLAT AT WEST WING, FLAT NO.402, PLOT NO.170/1, GANDHI GRAM ROAD, JUHU, MUMBAI-400 049. 241 33 7953 95436 4. 1/2 ND UNDIVIDED SHARE IN FLAT NO.16, AT KALPANA, 96, NETAJI SUBHASH ROAD, MUMBAI. 1587.64 50 79382 952584 AFTER PROVIDING FOR STATUTORY DEDUCTION ON ACCOUNT OF REPAIRS U/S 24, THE AGGREGATE NOTIONAL RENTAL VALUE WAS WORKED OUT TO R S.11.16 LACS WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE. THE STAND OF LD. AO, UPON CONFIRMATION BY LD. FIRST APPELLATE AUTHORITY, IS U NDER APPEAL BEFORE US. 3. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], AT THE OUTSET, SUBMITTED THAT THE ISSUE IS SQUARELY COVERE D BY THE DECISION OF SMC BENCH OF TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER AYS. THE COPY OF TRIBUNAL ORDER ITA NOS.7182-7186/MUM/2016 D ATED 20/09/2017 HAS BEEN PLACED ON RECORD. THE LD. DR JUSTIFIED THE ACTION OF LOWER AUTHORITIES. 4. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING THE CITED DEC ISION OF SMC BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER AY S. UPON PERUSAL, WE FIND THAT THE ISSUE HAS BEEN DEALT IN THE FOLLOWING MANNER: - 10. I HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT FLAT N O.16 AND 18 AT KALPANA, MARINE DRIVE WERE DUPLEX FLATS USED BY THE ASSESSEE. I ALS O FOUND THAT FLAT NO.16 AND FLAT NO.18 ON 5TH AND 6TH FLOOR RESPECTIVELY HAVING COMM ON STAIRCASE ATTACHED TO BOTH THE FLOORS INSIDE THE SAID PREMISES AND HENCE, IT C AN BE CONSIDERED AS ONE HOUSE WHICH IS ADJACENT TO EACH OTHER. ACCORDINGLY, I DIR ECT THE AO TO DELETE ADDITION MADE IN RESPECT OF FLAT NO.18 FOR THE A.Y.2006-07 TO 200 9-10. HOWEVER, FROM A.Y.2010- 11, THE ASSESSEE HAS TAKEN FLAT NO. 8 & 9 AT KALPAN A, MARINE DRIVE AS SOP, THEREFORE, THERE IS NO REASON TO DISTURB THE NOTION AL VALUE TAKEN BY THE AO FOR FLAT NO. 16 & 18 AT KALPANA, WHILE MAKING ADDITION U/S.2 2 OF THE IT ACT. 11. FLAT NO.1, JOOTHICA CO-OPERATIVE HOUSING SOCIET Y LTD., 22, NAUSHIR BHARUCHA ROAD, MUMBAI 400 007 WAS CLAIMED TO BE NOT IN A H ABITABLE STATE AND THEREFORE IT DID NOT HAVE A READY MARKETABLE VALUE. IN THE INTER EST OF JUSTICE, I RESTORE THIS ISSUE TO THE FILE OF AO FOR VERIFYING FACTUAL POSITION AN D TO DECIDE THE SAME AFRESH AS PER LAW. ITA NO.7213-14/MUM/2016 VIDYABEN BHAGWAN KOTAK ASSESSMENT YEARS :2011-12 & 12-13 4 12. IN RESPECT OF FLAT NO.402, WEST WIND, PLOT NO.1 70/1, GANDHI GRAM ROAD, JUHU, MUMBAI 400 049, WE DO NOT FIND ANY INFIRMITY IN T HE ORDER OF LOWER AUTHORITIES, ACCORDINGLY, WE CONFIRM THE ADDITION MADE BY AO U/S .22. CONCURRING WITH THE SAME, THE ADDITION WITH RESPECT TO PROPERTIES LISTED AT SERIAL NO. 1, 3 & 4 STANDS CONFIRMED WHEREAS THE MATTER OF RENTAL VALUE IN RESPECT OF PROPERTY LISTED AT SERIAL NO. 2 STANDS RESTORED BACK TO THE FILE OF LD. AO ON SIMILAR LINES. ACCORDINGLY, THE APPEAL ST AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.7214/MUM/2016, AY-2012-13) 5. IN THIS AY, THE ASSESSEE HAS SIMILARLY BEEN SADD LED WITH NET ADDITIONS OF RS.12.26 LACS WHICH HAS BEEN CONFIRMED BY LD. FIRST APPELLATE AUTHORITY. FACTS AND CIRCUMSTANCES BEING PARI-MATERIA THE SAME, THE ADDITION STANDS CONFIRMED WITH RESPECT TO PROPERTIES LISTED AT SERIAL NO. 1, 3 & 4 WHEREAS THE MATTER OF RENTAL VALUE IN RESPECT OF PROPERTY LISTED AT SERIAL NO. 2 STANDS RESTORED BACK TO THE FILE OF LD. AO ON SIMILAR LINES. ACCORDINGLY, THE APPEAL STAND PAR TLY ALLOWED FOR STATISTICAL PURPOSES. CONCLUSION 6. BOTH THE APPEALS STAND PARTLY ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH MARCH, 2019. SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 08/03/2019 SR.PS, JAISY VARGHESE ITA NO.7213-14/MUM/2016 VIDYABEN BHAGWAN KOTAK ASSESSMENT YEARS :2011-12 & 12-13 5 ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,- & . , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.