KUSUM MANOHAR AHUJA, MUMBAI V. ITO WD 19(1)(1), MUMBAI

ITA 939/MUM/2014

• Counselvise Citation: 93919914 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 10-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SATISH R MODI
• Keywords: Business expenditure; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.939/MUM./2014 (ASSESSMENT YEAR : 2010-11 ) SMT. KUSUM MANOHAR AHUJA 203, PRALAHAD PREMISES CO-OPERATIVE HOUSING SOCIETY, LINKING ROAD, SANTACRUZ (W), MUMBAI 400 054 PAN AEEPR6515B .. APPELLANT V/S INCOME TAX OFFICER WARD19(1)(1), MUMBAI .... RESPONDENT ASSESSEE BY : SHRI SATISH R. MODI, A.R. REVENUE BY : SHRI RAKESH RANJAN, D.R. DATE OF HEARING 23.07.2015 DATE OF ORDER 02.09 .2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS DIRE CTED AGAINST THE IMPUGNED ORDER DATED 27 TH DECEMBER 2013, PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)30, MUM BAI, [(HEREINAFTER REFERRED TO AS THE CIT(A)] FOR THE ASSES SMENT YEAR 2010-11, PASSED IN TERMS OF SECTION 143(3) OF THE INC OME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: ITA NO.939/MUM./2014 SMT. KUSUM MANOHAR AHUJA 2 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE RENTAL INCOME OF RS. 9,60,000/- AS TAKEN BY THE ASSESSING OFFICER INSTEAD OF ACTUAL RENT RECEIV ED OF RS.9,47,888/- WITHOUT PROPERLY CONSIDERING THE FACTS THAT THE ACT UAL RENT RECEIVED IS LESS AS COMPARED TO THE AGREEMENT. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF DEDU CTION OF INTEREST OF RS.3,40,865/- UNDER THE HEAD HOUSE PROP ERTY INCOME WITHOUT PROPERLY CONSIDERING THAT THE INTEREST PAID ON HOUSING LOAN WAS FOR THE PROPERTY ON WHICH THE APPELLANT EARNED RENTAL INCOME. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE COMPUTATION OF LONG TERM CAPITAL GAIN OF RS.63,25,286/- AS COMPUTED BY THE ASSESSING OFFICER INSTEAD OF RS.7,08,416/- AS COMPUTED BY THE APPELLA NT WITHOUT PROPERLY CONSIDERING THE FACTS THAT THE CLAIM OF IN TEREST PAID OF RS.9,35,735/- ALONGWITH INDEXATION BENEFIT OF THE B ORROWED FUND FOR PURCHASE OF FLAT SOLD AND INVESTMENT IN NEW PR9 PERTY OF RS.42 LAC MADE ON 3 RD AUGUST,2010 BEFORE DUE DATE OF FILING OF RETURN WH ICH IS ALLOWABLE DEDUCTION / EXEMPTION FROM LONG TERM C APITAL GAIN. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS. 1,04,160/- BEING 1/6 TH OF THE TOTAL BUSINESS EXPENDITURE CLAIMED WITHOUT P ROPERLY CONSIDERING THAT THE ASSESSEE HAS DECLARED NET PROF IT OF 57% OF THE GROSS INCOME AND MOST OF THE EXPENDITURE ARE PAID BY CHEQ UE. 2. AT THE OUTSET, THE LD. AR HAS INVITED OUR ATTENTION TO THE APPLICATION DATED 22.07.2015 FILED BY THE ASSESSEE UND ER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES 1963, FOR FILING ADDITIONAL EVIDENCES QUA DETAILS OF MONTH WISE RENT RE CEIVED OF RS.9,47,888/-, INTEREST ON LOAN RELATING TO HOUSE PR OPERTY, LONG TERM CAPITAL GAIN AND RECEIPT OF RS.42,00,000/- FOR T HE PAYMENT OF NEW FLAT. THE LD AR HAS FURTHER SUBMITTED THAT THESE EVIDENCES W ERE ALSO FILED BEFORE THE CIT(A) WHICH WERE NOT ENTERTAINED ON TH E GROUND THAT THESE WERE NOT FILED BEFORE ASSESSING OFFICER (HER EINAFTER REFERRED TO AS THE AO). THE LD AR HAS FURTHER SUBMITTED THAT THESE ITA NO.939/MUM./2014 SMT. KUSUM MANOHAR AHUJA 3 EVIDENCES ARE VERY MUCH NECESSARY FOR THE JUST AND PROPER DECISION OF THE CASE. HE HAS FURTHER EXPLAINED THAT TH ESE DOCUMENTS COULD NOT BE FILED BEFORE THE AO DUE TO DEATH OF ASSESSEES HUSBAND ON 20TH APRIL, 2012 AS MATTERS REL ATING TO INCOME WERE BEING HANDLED BY HIM. THE ASSESSE LADY WAS NOT AWARE OF THE LEGAL PROCEEDINGS AND WAS NOT AWARE OF TH E COMPLEXITY OF THE INCOME TAX PROCEEDINGS. AFTER HEARING THE LD. DR ON THE APPLICATION UNDER RUL E 29, WE ARE OF THE CONSIDERED VIEW THAT THE EVIDENCES/DOCUMENTS S OUGHT TO BE PRODUCED BY THE ASSESSEE GO TO THE ROOTS OF THE ISS UES RAISED IN THE GROUNDS OF APPEAL. THESE DOCUMENTS ARE REQUI RED TO BE EXAMINED AND CONSIDERED BY THE ASSESSING OFFICER FOR THE PROPER DETERMINATION OF THE ABOVE ISSUES RAISED BY THE ASSES SEE. EVEN THE ASSESSEE HAS ALSO DULY EXPLAINED THE REASONS FOR NOT FURNISHING THE REQUIRED EVIDENCES BEFORE THE AO. WE THEREFORE ALLOW THE APPLICATION OF THE ASSESSEE FOR PRODUCTION OF ADDITIONAL EVIDENCE AND RESTORE THE MATTER BACK TO TH E FILE OF THE AO WITH A DIRECTION TO ADMIT THE EVIDENCES SOUGHT TO BE PRODUCED BY THE ASSESSEE AND THEN TO DECIDE THE ABOVE ISSUES AFRESH AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSE E TO PRESENT HER CASE BEFORE HIM. 23. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02.09.2015 SD/- SD/- (G.S. PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER ITA NO.939/MUM./2014 SMT. KUSUM MANOHAR AHUJA 4 MUMBAI, DATED: 02.09.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.