JAYESH KUMAR BANSAL, Jaipur V. ITO, Jaipur

ITA 92/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99365 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: SARVAN GUPTA
• Keywords: Salary income; Opportunity of being heard

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 92/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI JAYESH KUMAR BANSAL 160, NEMI NAGAR, GANDHI PATH VAISHALI NAGAR, JAIPUR CUKE VS. THE ITO WARD- 2 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ADYPB 9489 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SARVAN GUPTA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12 /10/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 20-11-2013 FOR THE ASSESSM ENT YEAR 2009-10 WHEREIN THE ASSESSEE RAISED THE SOLITARY GROUND AS UNDER:- THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL A S ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOWANC E OF RS. 1,59,629/- MADE BY THE AO ON ACCOUNT OF INTEREST C LAIMED U/S 24(A) OF THE ACT RELATING TO INTEREST PAID ON H OUSING LOAN. THE DISALLOWANCE SO MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME MAY KINDLY B E DELETED IN FULL. ITA NO. 92/JP/2014 SHRI JAYESH KUMAR BANSAL VS. ITO, WARD- 2 (4), JAIP UR . 2 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE D ERIVED INCOME FROM SALARY, CONSULTANCY OF ARCHITECTURE AND INTERIORS A ND HOUSE PROPERTY. FOR THE YEAR UNDER CONSIDERATION, THE A HAS FILED ITS R ETURN OF INCOME DECLARING TOTAL INCOME AT RS. 5,43,420/- ON 31-03-2010. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE AS SESSEE HAS CLAIMED HOUSING LOAN INTEREST OF RS. 1,59,629/- FROM HIS PR OPERTY SITUATED AT J-16, LAL KOTHI SCHEME OPP. LAS VEGAS, NEHRU SAHKAR MARG, JAIPUR. THE AO FURTHER OBSERVED THAT PERUSAL OF DETAILS FILED IT I S CLEAR THAT JDA HAS ISSUED PATTA IN THE NAME OF TWO PERSONS, SHRI JAYESH KUMAR BANSAL AND SHRI ANKUR SHAH JOINTLY. THE AO ASKED TO THE ASSESSEE T O FILE THE LOAN STATEMENT FOR THE RELEVANT FINANCIAL YEAR OF THE SA ID PROPERTY. IN RESPONSE THERETO THE ASSESSEE FILED THE SAME. THE AO NOTED T HAT ON PERUSAL OF THE LOAN STATEMENT OF ICICI BANK, IT HAS BEEN NOTICED T HAT THE AID LOAN GIVEN TO SHRI ANKUR SHAH AND AMIT SHAH JOINTLY BUT THE NA ME OF THE ASSESSEE SHRI JAYESH KUMAR BANSAL IS NOT MENTIONED IN THE LO AN STATEMENT. HENCE THE AO ASKED THE ASSESSEE THAT AS TO WHY THE INTERE ST AMOUNT OF RS. 1,59,629/- SHOULD NOT BE DISALLOWED .IN RESPONSE TH ERETO, THE ASSESSEE FILED REPLY ON 12-08-2011 BY BRINGING ALL THE REAL FACTS AND DETAILS INTO THE NOTICE OF THE AO. HOWEVER, THE AO SUMMARILY REJECTE D THE REPLY OF THE ITA NO. 92/JP/2014 SHRI JAYESH KUMAR BANSAL VS. ITO, WARD- 2 (4), JAIP UR . 3 ASSESSEE WITHOUT CONSIDERING THE SAME IN THEIR TRUE PERSPECTIVE AND SENSE AND MADE DISALLOWANCE OF RS. 1,59,629/-. 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE LD. CIT(A) CONFIRMED THE DISALLOWANCE MADE BY THE AO BY FOLLOW ING OBSERVATION. 5. I HAVE CONSIDERED FACTS OF THE CASE. IT IS NOT ICED THAT THE AO HAS DISALLOWED INTEREST AMOUNTING TO RS. 1,5 9,629/- DID NOT PERTAIN THE LOAN GIVEN TO HIM BY ICICI BANK FOR THE PLOT AT H-16, LAL KOTHI SCHEME, JAIPUR. THE AO FURT HER NOTED THAT THE LOAN HAD BEEN GIVEN TO SHRI ANKUR SH AH AND SHRI AMIT SHAH AND THE NAME OF SHRI JAYESH KUMAR BA NSAL DID NOT APPEAR IN THE LOAN STATEMENT. HENCE, THE AO DISALLOWED THE INTEREST CLAIMED BY THE APPELLANT. 5.1 IT IS FURTHER NOTED THAT THE APPELLANT HAS NOT GIVEN ANY SATISFACTORY REASON AS TO WHY THE INTEREST SHOULD B E ALLOWED IN HIS HAND WHEN THE LOAN WAS NOT IN HIS NAME. THER E MIGHT HAVE BEEN SOME PRACTICAL DIFFICULTY IN THE TITLE OF THE LAND FOR OBTAINING LOAN. IT HOWEVER, DOES NOT MEAN THAT THE INTEREST SHOULD BE ALLOWED IN HIS HANDS WHEN THE LOAN HAD BE EN TAKEN BY SOMEONE ELSE. HENCE, THE CLAIM MADE BY THE APPEL LANT IN THIS REGARD CANNOT BE UPHELD. SO FAR AS THE CLAIM T HAT 100% OF THE INTEREST AMOUNT PAID BY THE APPELLANT WITH R ESPECT TO OTHER PROPERTY SHOULD BE ALLOWED AS AGAINST 50% CLA IMED BY HIM, SUFFICE IT TO SAY THAT THE CLAIM CANNOT BE ENH ANCED AT THIS STAGE WHEN THE APPELLANT HAS FAILED TO FURNISH ANY SUPPORTING DETAILS REGARDING THE ENHANCED CLAIM OF INTEREST. THE APPEAL ON THIS GROUND, THEREFORE, FAILS. 2.3 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT ICICI BANK IN ORDER TO GIVE LOAN ON PROPERTY INSISTED ON THE NAME OF CO -BORROWER. CONSEQUENTLY, THE ASSESSEE INCLUDED HIS BROTHER NAM E AS CO-BORROWER BUT THE FACT REMAINS THAT THE BORROWED FUNDS WERE UTILI ZED FOR THE PROPERTY ITA NO. 92/JP/2014 SHRI JAYESH KUMAR BANSAL VS. ITO, WARD- 2 (4), JAIP UR . 4 AND THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 24(A ) OF THE ACT AGAINST HOUSE PROPERTY INCOME. IT IS PRAYED THAT THE SAME M AY BE ALLOWED. 2.4 THE LD. DR ON THE OTHER HANDS REFERRED TO THE C OMPUTATION FILED BY THE ASSESSEE WHICH NOWHERE SHOWS EARNING OF ANY REN TAL INCOME. THERE ARE THREE PROPERTIES AND AGAINST EVERY PROPERTY RS. 12,000/- RENT IS SHOWN AS RECEIVABLE AND NOT RECEIVED. THEREFORE, IT IS NO T CLEAR WHETHER THE PROPERTIES WERE LET OUT OR NOT. THERE IS NO MENTION ING OF ANY SELF OCCUPIED PROPERTY. IN THE CASE OF NON-SELF OCCUPIED PROPERTY, THE DEDUCTION ON BORROWED CAPITAL CAN BE CLAIMED ONLY I F THE PROPERTY IS LET OUT. THE ASSESSEE HAS FAILED TO DEMONSTRATE THAT TH E PROPERTIES WERE LET OUT AND HUGE LOSE HAS BEEN CLAIMED AGAINST HOUSING LOAN ON ALL THE PROPERTIES. THEREFORE, ASSESSEE'S CASE IS TOTALLY HOTCHPOTCH AN D THE CLAIM IS NOT ASCERTAINABLE. THEREFORE, THE ASSESSMENT MAY BE SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRES H IN ACCORDANCE WITH LAW. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE ARGUMENTS OF THE LD. DR . FROM THE COMPUTATION OF INCOME AND THE ASSESSMENT ORDER, IT IS NOT EMERGED THAT ASSESSEE HAS EARNED ANY ACTUAL RENTAL INCOME. THE ASSESSEE HAS THREE PROPERTIES AND AGAINST EACH PROPER ONLY RECEIVABLE IS MENTIONED. ITA NO. 92/JP/2014 SHRI JAYESH KUMAR BANSAL VS. ITO, WARD- 2 (4), JAIP UR . 5 CONSEQUENTLY, IT IS NOT ASCERTAINABLE WHETHER ASSES SEE'S CLAIM IS TENABLE OR NOT. IN VIEW THEREOF, THE ASSESSMENT IN QUESTION IS SET ASIDE AND RESTORED TO THE FILE OF THE AO TO DECIDE IT AFRESH IN ACCORD ANCE WITH LAW BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 12/10/201 5. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/10/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI JAYESH KUMAR BANSAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2 (4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 92/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR ITA NO. 92/JP/2014 SHRI JAYESH KUMAR BANSAL VS. ITO, WARD- 2 (4), JAIP UR . 6