Amit Dhingra, Delhi V. ACIT, Gurgaon

ITA 762/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0108 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NOS.762 & 763/DEL/2015 ASSESSMENT YEARS : 2009-10 & 2010-11 AMIT DHINGRA, C/O. KAPIL GOEL, ADV., F-26/124, SECTOR- 7, ROHINI, DELHI. VS. ACIT, CIRCLE- 1(1), NEW DELHI. PAN : ANDPD9369B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL, ADV. DEPARTMENT BY : SHRI RAGHUNATH, SR. DR DATE OF HEARING : 19-09-2018 DATE OF PRONOUNCEMENT : 19-09-2018 O R D E R PER R. K. PANDA, AM : THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS DATED 08.12.2014 OF THE CIT(A)- 1, GURGAON RELATING TO ASSESSMENT YEARS 2009-10 AND 2010-11. SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE APPEALS, THEREFORE, THESE WERE HEARD TOGET HER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO.762/DEL/2015 (A.Y. 2009-10) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND THE ORIGINAL ASSESSMENT U/S 143(1) WAS COMPLETED IN THI S CASE VIDE ORDER DATED 30.12.2011 DETERMINING THE TOTAL INCOME AT RS.1,21, 43,250/-. SUBSEQUENTLY, THE 2 ITA NOS.762 & 763/DEL/2015 ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS DECLA RED LOSS FROM HOUSE PROPERTY AMOUNTING TO RS.9,08,104/- WHEREIN HE HAS CLAIMED D EDUCTION U/S 24(A) OF RS.54,000/- AND SECTION 24(B) OF RS.10,34,104/-. F ROM THE SALE DEED, HE NOTED THAT THE PROPERTY IS JOINTLY OWNED BY THE ASSESSEE AND HIS WIFE SMT. ARTI SHARMA. THE ASSESSING OFFICER, REFERRING TO THE PR OVISIONS OF SECTION 26, HELD THAT THE ASSESSEE IS HAVING 50% OWNERSHIP OF THE SA ID PROPERTY. THEREFORE, THE ASSESSEES SHARE IN LOSS IS 50% I.E. RS.4,54,052/- AS AGAINST RS.9,08,104/- ALLOWED EARLIER. THEREFORE, HE ISSUED NOTICE U/S 1 54 AND THEREAFTER RESTRICTED SUCH LOSS OF RS.4,54,052/- AS AGAINST RS.9,08,104/- ALLOWED EARLIER AS PER CLAIM IN THE RETURN OF INCOME. 3. BEFORE THE LD. CIT(A), THE ASSESSEE CHALLENGED T HE VALIDITY OF SECTION 154 PROCEEDINGS, WHICH WAS REJECTED BY THE LD. CIT(A). SO FAR AS DISALLOWANCE OF 50% LOSS IS CONCERNED, IT WAS ARGUED THAT ALTHOUGH THE PROPERTY WAS IN JOINT NAME WITH HIS WIFE BUT THE SAME WAS FOR SUCCESSION PURPOSE AND THE ENTIRE CONSIDERATION WAS PAID BY THE ASSESSEE HIMSELF OUT OF SALE PROCEEDS OF RESIDENTIAL HOUSE WHICH WAS HELD IN HIS NAME. THER E WAS NO CONTRIBUTION FROM HIS WIFE TOWARDS PURCHASE OF THE HOUSE PROPERTY SIN CE SHE WAS ONLY A HOUSE WIFE AND DID NOT HAVE ANY TAXABLE INCOME AND HAD NEVER F ILED HER RETURN OF INCOME. RELYING ON VARIOUS DECISIONS, IT WAS ARGUED THAT TH E ASSESSING OFFICER WAS NOT JUSTIFIED IN RESTRICTING THE LOSS FROM HOUSE PROPER TY BY 50% OF SUCH LOSS. 3 ITA NOS.762 & 763/DEL/2015 3.1 HOWEVER, THE LD. CIT(A) WAS NOT SATISFIED WITH THE ARGUMENTS ADVANCED BY THE ASSESSEE. DISTINGUISHING THE VARIOUS DECISI ONS CITED BEFORE HIM, HE HELD THAT THE ASSESSEE DID NOT HAVE ANY EVIDENCE TO SUBS TANTIATE THE FACT THAT HE WAS THE SOLE OWNER AND HIS WIFE HAS NO CONTROL OVER THE SAID PROPERTY. HE ACCORDINGLY HELD THAT THE ASSESSING OFFICER HAS RIG HTLY DISALLOWED 50% OF THE LOSS FROM INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- SECTION 154 WRONGLY INVOKED BY LD. A.O. : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LEARNED CIT- A ERRED IN NOT QUASHING THE NOTICE ISSUED U/S 154 A ND CONSEQUENTIAL ORDER PASSED U/S 154 WHERE THE ISSUE SOUGHT TO BE RECTIFIED DO NOT M EET AND SATISFY THE JURISDICTIONAL PRE-REQUISITE OF PHRASE MISTAKE APPARENT FROM RECO RD AND SERIOUSLY ERRED IN DISTINGUISHING THE APPLICABLE PRECEDENTS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LEARNED CIT- A ERRED IN NOT DECLARING THE NOTICE ISSUED U/S 154 AND CONSEQUENTIAL ORDER PASSED U/S 154 AS NULLITY WHERE THE ISSUE SOUGHT TO BE RECTIFI ED IS NOT ONLY DEBATABLE, ARGUABLE AND INVESTIGATIVE BUT ALSO THERE ARE TWO VIEWS POSS IBLE ON THE SAME. TOTAL NON-APPRECIATION OF SECTION 26 DEHORS THE PRE VAILING FACTS. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LEARNED CIT- A ERRED IN NOT DELETING THE TENUOUS ADDITION OF RS. 454,052 ON ACCOUNT OF 50% DISALLOWANCE OF LOSS UNDER THE HEAD HOUSE PROPERTY BEING ENAMORED BY FACT THAT PROPERTY IS CO-OWNED (AS PER SALE DEED) DEHORS THE FACT THAT WHOLE CONSIDERATION FOR SUBJECT HOUSE PROPERTY WAS PAID BY ASSESSEE HIMSELF AND WIFE'S NAME WAS INSERTED FOR SUCCESSION AND ADMINISTRATIVE PURPOSES. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LEARNED CIT- A ERRED IN NOT DELETING THE TENUOUS ADDITION OF RS. 454,052 ON ACCOUNT OF 50% DISALLOWANCE OF LOSS UNDER THE HEAD HOUSE PROPERTY BY ERRONEOUSLY AND WRONGLY APPLYING SECTION 26 OF THE ACT WHICH DO NOT ADVANCE THE CASE OF LD AO. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GROUNDS STATED HEREIN ABOVE, EITHE R BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 4 ITA NOS.762 & 763/DEL/2015 5. THE LD. COUNSEL FOR THE ASSESSEE, AT THE TIME OF HEARING, DID NOT PRESS GROUNDS OF APPEAL NO.1 AND 2 FOR WHICH THE LD. DR H AS NO OBJECTION. ACCORDINGLY, THE ABOVE GROUNDS ARE DISMISSED AS NOT PRESSED. 6. SO FAR AS GROUNDS OF APPEAL NO.3 AND 4 ARE CONCE RNED, THE LD. COUNSEL FOR THE ASSESSEE, REFERRING TO THE VARIOUS PAGES OF THE PAPER BOOK, SUBMITTED THAT THE ASSESSEE VIDE HIS SUBMISSIONS DATED 26.02.2013, 22. 02.2013, 08.02.2013, 28.11.2013 AND 06.12.2013 HAD CATEGORICALLY STATED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE HIMSELF HAD PAID THE FULL CONSIDERATION TOWARDS THE HOUSE PROPERTY SITUATED AT 82-E SPACE, UNITECH NIRV ANA COUNTRY, NEAR SOUTH CITY-II, GURGAON FROM HIS BANK AND PAYING THE LOAN AMOUNT FROM HIS BANK ACCOUNT. HIS WIFE IS THE SECOND APPLICANT FOR THE PURPOSE OF SECURITY ONLY AND THE ASSESSEE IS ONLY THE OWNER AND NOT HIS WIFE. H E SUBMITTED THAT DESPITE TIME AND AGAIN HE HAS MENTIONED THE SAME FACT BEFORE THE ASSESSING OFFICER, HOWEVER, HE HAS NOT CONSIDERED THE SAME AND THE LD. CIT(A) HAS ALSO NOT APPRECIATED THE FACTS PROPERLY. HE ACCORDINGLY SUB MITTED THAT THE ORDER OF THE LD. CIT(A) BE SET-ASIDE AND THE GROUNDS RAISED BY T HE ASSESSEE BE ALLOWED. 7. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDERS OF THE ASSESSING OFFICER AND THE LD. CIT(A). HE SUBMITTED THAT WHEN THE ASSESSEE IS THE CO-OWNER ALONG WITH HIS WIFE, THEREFORE, IN ABS ENCE OF ANY EVIDENCE TO SHOW THAT THE ASSESSEE HAS FULL CONTROL OVER THE PROPERT Y AND HIS WIFE HAS NO CONTROL OVER THE SAID PROPERTY, THE LD. CIT(A) WAS FULLY JU STIFIED IN RESTRICTING THE LOSS 5 ITA NOS.762 & 763/DEL/2015 BY 50%. HE ACCORDINGLY SUBMITTED THAT THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FI ND THE ASSESSING OFFICER IN THE 154 PROCEEDINGS REFERRING TO PROVISIONS OF SECT ION 26 RESTRICTED THE LOSS FROM HOUSE PROPERTY TO 50% OF SUCH LOSS ON THE GROUND TH AT THE PROPERTY IN QUESTION IS JOINTLY HELD BY THE ASSESSEE ALONG WITH HIS WIFE AS PER THE REGISTERED SALE DEED. WE FIND THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ENTIRE CONSIDERATION WAS PAID BY THE ASSESSEE OUT OF THE SALE PROCEEDS O F THE PROPERTY HELD BY HIM. IT IS ALSO HIS SUBMISSION THAT THE NAME OF HIS WIFE WA S MENTIONED IN THE SALE DEED ONLY FOR THE PURPOSE OF SAFETY AND SECURITY AND HIS WIFE HAS NOT CONTRIBUTED ANYTHING TOWARDS PURCHASE OF THE HOUSE PROPERTY SIN CE SHE WAS A HOUSE WIFE AND HAS NEVER FILED HER RETURN OF INCOME. WE FIND ALTH OUGH THE ASSESSEE IN HIS SUBMISSIONS BEFORE THE ASSESSING OFFICER ON VARIOUS DATES HAS CATEGORICALLY MENTIONED THAT ENTIRE CONSIDERATION HAS BEEN PAID B Y HIM AND HIS WIFE IS ONLY THE SECOND APPLICANT FOR THE PURPOSE OF SECURITY, H OWEVER, WE FIND NOTHING HAS BEEN MENTIONED BY THE ASSESSING OFFICER IN THE BODY OF THE ASSESSMENT ORDER. THERE IS ABSOLUTELY NO WHISPER ON THE SUBMISSIONS M ADE BY THE ASSESSEE ON VARIOUS DATES, COPIES OF WHICH ARE PLACED IN THE PA PER BOOK FROM PAGES 5 TO 14. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE, WE 6 ITA NOS.762 & 763/DEL/2015 DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE HIS FINDING REGARDING THE CONTRIB UTION MADE BY THE ASSESSEE AND HIS WIFE TOWARDS PURCHASE OF THE SAID PROPERTY AND THEN DECIDE AS TO WHETHER THE LOSS HAS TO BE APPORTIONED AS PER THE PROVISIONS OF SECTION 26 WHEN THE SECOND CO-OWNER I.E. WIFE OF THE ASSESSEE IN THE INSTANT C ASE, HAS NOT CONTRIBUTED ANYTHING TOWARDS PURCHASE OF THE HOUSE PROPERTY AND HER NAME WAS MENTIONED ONLY FOR THE PURPOSE OF SAFETY, SECURITY AND SUCCES SION. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AS PER FAC T AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.763/DEL/2015 (A.Y. 2010-11) : 9. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- DISALLOWANCE OF LOSS UNDER THE HEAD HOUSE PROPERT Y RS.601,769/-. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LEARNED CIT- A ERRED IN NOT DELETING THE TENUOUS ADDITION OF RS. 601,769/- ON ACCOUNT OF 50% DISALLOWANCE OF LOSS UNDER THE HEAD HOUSE PROPERTY BEING ENAMORED BY FACT THAT PROPERTY IS CO-OWNED (AS PER SALE DEED) DEHORS THE FACT THAT WHOLE CONSIDERATION FOR SUBJECT HOUSE PROPERTY WAS PAID BY ASSESSEE HIMSELF AND WIFE'S NAME WAS INSERTED FOR SUCCESSION AND ADMINISTRATIVE PURPOSES. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LEARNED CIT- A ERRED IN NOT DELETING THE TENUOUS ADDITION OF RS. 601,769/- ON ACCOUNT OF 50% DISALLOWANCE OF LOSS UNDER THE HEAD HOUSE PROPERTY BY ERRONEOUSLY AND WRONGLY APPLYING SECTION 26 OF THE ACT WHICH DO NOT ADVANCE THE CASE OF LD AO. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GROUNDS STATED HEREIN ABOVE, EITHE R BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 7 ITA NOS.762 & 763/DEL/2015 10. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUN DS RAISED BY THE ASSESSEE IN THIS APPEAL ARE IDENTICAL TO GROUNDS OF APPEAL NO.3 AND 4 RAISED BY THE ASSESSEE IN ITA NO.762/DEL/2015 FOR ASSESSMENT YEAR 2009-10. WE HAVE ALREADY DECIDED THE ISSUE AND RESTORED THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION OF THE ISSUE AFRESH WITH CERTAIN DIREC TIONS. FOLLOWING SIMILAR REASONING, THE ABOVE GROUNDS RAISED BY THE ASSESSEE ARE ALSO ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 19 TH DAY OF SEPTEMBER, 2018. SD/- SD/- (SUDHANSHU SRIVASTAVA) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19-09-2018. 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