KAMINI KRISHNA KOTAK, MUMBAI V. DCIT CEN CIR 6(4), MUMBAI

ITA 7215/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7963 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Keywords: Deemed owner of house property; Additional evidence; Set aside

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI RAVISH SOOD (JM) I.T.A. NO. 7216/MUM/2016 (ASSESSMENT YEAR 2010 - 11) I.T.A.NO. 7215 /MUM/ 201 6 (ASSESSMENT YEAR 20 11 - 12 ) I.T.A. NO. 7217/MUM/2016 (ASSESSMENT YEAR 20 12 - 13) KAMINI KRISHNA KOTAK 18, KALPANA, 96/B NETAJI SUBHASH ROAD MARINE DRIVE MUMBAI - 400 002. PAN : AADPK9383K V S . DCIT CC - 6(4) ERSTWHILE KNOWN AS ACIT - CC - 39 ROOM NO. 1926 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400021. ( APPELLANT ) ( RES PONDENT ) ASSESSEE BY SHRI NITESH JOSHI & SHRI HARSH SHAH DEPARTMENT BY SHRI B. SRINIVAS & SHRI MANOJ KUMAR SINGH DATE OF HEARING 2.5 . 201 9 DATE OF PRONOUNCEMENT 1.7 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THESE ARE APPEALS BY THE ASSES SEE AGAINST RESPECTIVE ORDERS OF LEARNED CIT(A) FOR CONCERNED ASSESSMENT YEARS. 2. THE COMMON ISSUE RAISED IN THE S E APPEAL S IS THAT LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN TREATING TWO PROPERTIES AS DEEMED LET OUT AND DE TERMINING ON A N ADHOC BASIS NOTIONAL RENTAL INCOME FOR BOTH THE PROPERTIES AND THEREBY CONFIRMING FOLLOWING ADDITIONS : - 2010 - 11 RS. 9,06,146/ - 2011 - 12 RS. 9,06,146/ - 2012 - 13 RS. 9,96,760/ - ADDITIONAL GROUND HAS BEEN RAISED BY THE ASSESSEE IN THIS APPEAL WHICH READS AS UNDER : - 2 WITHOUT PREJUDICE TO GROUND NO. 1, THE ASSESSEE SUBMITS THAT IN CASE OF FLAT NO. 16,18 & 17B ARE TREATED AS SEPARATE UNITS, FLAT NO. 16 & 18 (WHICH HAS BEEN ACCEPTED AS ONE SINGLE UNIT IN CASE OF A CO - OWNER) BE TREATED AS SE LF OCCUPIED PROPERTY (SOP) AND FLAT NO. 17B BE TREATED AS DEEMED LET OUT FOR THE PURPOSES OF COMPUTATION UNDER THE HEAD INCOME FROM HOUSE PROPERTY . 4. FOR A.Y. 2010 - 11, B RIEF FACTS ON THIS IS SU E ARE THAT THE ASSESSING OFFICER OBSERVED THAT DURING THE COURSE OF SEARCH PROCEEDINGS WHILE OPERATION OF LOCKER NO. 746 VARIOUS PROPERTIES DETAIL HELD BY THE ASSESSEE AND FAMILY MEMBERS AND CONCERNS WERE FOUND. DETAILS WERE AS UNDER : - S.NO. DESCRIPTION OF THE PROPERTY WITH SHARE SQ.MT. PERTAINED TO THE ASSESSE E SQ.FT. PERTAINED TO THE ASSESSEE 1 FLAT NO. 17B AT KALPANA, 96, NETAJI SUBHASH ROAD, MUMBAI SOP SOP 2 1/2 ND UNDIVIDED SHARE IN FLAT NO. 16 AT KALPANA, 96, NETAJI SUBHASH ROAD, MUMBAI 147.55 1587.64 3 1/3 RD UNDIVIDED SHARE IN FLAT NO. 18 AT KALPANA, 96, NETAJI SUBHASH ROAD, MUMBAI 52.96 569.85 ASSESSING OFFICER OBSERVED THAT THE ASSESSEE OWNED ABOVE REFERRED PROPERTIES BUT HAS NOT OFFERED ANY DEEMED RENT FROM THESE PROPERTIES. THE ASSESSEE IN THIS REGARD EXPLAINED THAT AS PER PROVISIONS OF SECTION 2 3, IF AN ASSESSEE HAS A HOUSE PROPERTY WHICH CONSISTS OF TWO OR MORE RESIDENTIAL UNITS AND ALL SUCH UNITS ARE SELF OCCUPIED, THE ANNUAL VALUE OF THE ENTIRE HOUSE PROPERTY SHALL BE TAKEN AS NIL AS THERE IS ONLY ONE HOUSE PROPERTY THOUGH IT HAS MORE THAN ONE RESIDENTIAL UNITS. THE ASSESSEE REFERRED TO CERTAIN DECISIONS ALSO IN THIS REGARD. WITHOUT PREJUDICE TO THE ABOVE THE ASSESSEE SUBMITTED THAT THE PRESENT LETTABLE VALUE FOR FINANCIAL YEAR 2013 - 14 PER SQUARE FEET IS APPROXIMATELY RS. 60/ - FOR KALPANA PROPE RTY. THE ASSESSING OFFICER REJECTED THE CONTENTION RAISED BY THE ASSESSEE. TAKING PREVAILING RATE OF RENT AT MARINE DRIVE FOR FINANCIAL YEAR 2013 - 14 AT RS. 60/ - PER SQUARE FEET AS SUBMITTED BY THE ASSESSEE , T HE ASSESSING OFFICER ESTIMATED THE RATE FOR FIN ANCIAL YEAR 2009 - 10 AT RS. 50/ - PER SQUARE FEET. ACCORDINGLY, HE COMPUTED NOTIONAL RENTAL INCOME OF 3 THE ASSESSEE AT RS. 9,06,146/ - IN RESPECT OF PROPERTY AT FLAT NO. 16 & 18 AT KALPANA. SIMILAR ADDITIONS WERE ALSO MADE IN OTHER ASSESSMENT YEARS . 5. UPON ASSESSEES APPEAL, LEARNED CIT(A) NOTED THE CONTENTION OF THE ASSESSEE AS UNDER : - I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE APPELLANT HAS REQUESTED TO DELETE THE IMPUGNED ADDITION OF RS. 9,06,1 46/ - MADE AS INCOME FROM HOUSE PROPERTY. THE MAIN CONTENTIONS OF THE APPELLANT ARE THAT THE FLAT NO. 17B AT KALPANA, 1/2 ND UNDIVIDED SHARE IN FLAT AT NO. 16 AND L/3 RD UNDIVIDED SHARE IN FLAT NO. 18 AT KALPANA, 96 - B, NETAJI SUBHASH ROAD, MARINE DRIVE, MUMBA I WERE OCCUPIED BY HER AND OTHER MEMBERS OF HER FAMILY AND HENCE THESE FLATS TOGETHER CONSTITUTES ONLY 'ONE HOUSE PROPERTY', THOUGH THE SAME ARE MORE THAN ONE RESIDENTIAL UNITS BECAUSE SHE WAS OCCUPYING ALL THESE FLATS FOR HERSELF AND HER FAMILY MEMBERS AN D HENCE NEED TO BE TREATED AS SOP. IN SUPPORT OF HER CLAIM THE APPELLANT HAS PLACED RELIANCE ON VARIOUS JUDICIAL PRONOUNCEMENTS AS DETAILED ABOVE. THE APPELLANT HAS ALSO SUBMITTED THAT FLAT NO. 16 AND 18 AT KALPANA, 96, NETAJI SUBHASH ROAD, MARINE DRIVE; M UMBAI IS EXTREMELY OLD AND NOT EASILY ASSESSABLE FROM THE MAIN ROAD AND HENCE DOES NOT HAVE READY MARKETABLE VALUE. THE CONTENTIONS RAISED BY THE APPELLANT HAVE BEEN CONSIDERED CAREFULLY. IN RESPECT OF PROPERTY FLAT NO. 17B AT KALPANA, 1/2 ND UNDIVIDED SHAR E IN FLAT AT NO. 16 AND L/3 RD UNDIVIDED SHARE IN FLAT NO. 18 AT KALPANA, 96 - B, NETAJI SUBHASH ROAD, MARINE DRIVE, MUMBAI THE APPELLANT HAS SUBMITTED THAT THE SAME ARE OCCUPIED BY HERSELF AND HER FAMILY MEMBERS AND HENCE THE SAME HAVE BEEN CONSIDERED AS 'ON E HOUSE PROPERTY', THOUGH THE SAME ARE MORE THAN ONE RESIDENTIAL UNITS AND HENCE TREATED AS SOP. 6. THEREAFTER LEARNED CIT(A) REFERRED TO THE CASE LAWS IN THIS REGARD AND PROCEEDED TO REJECT THE ASSESSEES CONTENTION AND UPHOLD THE ACTION OF THE ASSESSIN G OFFICER. 7. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL REFERRED TO THE ADDITIONAL GROUND AND ALSO SUBMITTED THAT A DECISION OF ITAT IN THE CASE OF CO - OWNER SMT. VID YABEN BHAGWAN KOTAK IN RESPECT OF THE SAME FLATS IN WHICH SHE HAD HALF SHAREHOLD ING IN FLAT NO. 16 & 18 AT KALPANA, IN WHICH THE ITAT AT PARAGRAPH 10 OF THE SAID ORDER HAS ACCEPTED THAT THESE 4 FLATS ARE DUPLEX FLATS USED BY THE ASSESSEE HAVING COMMON STAIRC ASE AND HENCE IT WAS HELD THAT THEY CAN BE CONSIDERED AS ONE HOUSE WHICH IS ADJACENT TO EACH OTHER. THIS WAS SO HELD BY THE ITAT VIDE ORDER DATED 20.9.2017 IN ITA NO. 7182 TO 7186/MUM/2016. 9. NOW WE NOTE THAT THIS IS AN ADDITIONAL EVIDENCE WHICH WAS NOT PLACED BEFORE THE AUTHORITIES BELOW. THOUGH THE REVENUE HAS CHALLENGED THE ADDITION AL GROUND AND RAISED GROUND THAT HOW FLAT NO. 16 & 18 BE CONSIDERED AS COMBINED SINGLE UNIT. FURTHER THE REVENUE HAS ALSO CHALLENGED THAT EARLIER ASSESSEE HAD CLAIMED FLAT N O. 17B AS SELF OCCUPIED PROPERTY. 10. UPON CAREFUL CONSIDERATION, WE FIND THAT SINCE THERE IS AN ITAT ORDER IN THE CASE OF CO - OWNER, WHICH HAS NOT BEEN SET ASIDE BY HON'BLE HON'BLE JURISDICTIONAL HIGH COURT, WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER THIS ADDITIONAL EVIDENCE AND DECIDE ACCORDINGLY. WE FURTHER HOLD THAT THERE IS NO E S TOPPEL AGAINST THE ASSESSEE IN NOW OFFERING SELF OCCUPIED PROPERTY AND DEEMED LET OUT PROPERTY IN A D IFFERENT MANNER THAN THAT OFFERED INITIALLY. ASSESSEE IS VERY MUCH ENTITLED TO PLAN ITS TAXATION SO AS TO MINIMIZE THE BURDEN SO LONG AS THE METHOD IS NOT COLOURABLE. HERE THE APPROACH OF THE ASSESSEE CAN BY NO STRETCH OF IMAGINATION BE S AI D TO BE A COLOUR ABLE DEVICE. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1 . 7 . 201 9 . SD/ - SD/ - (RAVISH SOOD ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 / 7 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 5 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI