Sri Krishna Tiles & Potteries (Madras) Pvt. L:td., CHENNAI V. DCIT, CHENNAI

MA 112/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5675 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 29-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH TRIPATHY
• Assessee Lawyers: R SU BRAMANIAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI ... , . !'# ! ,% !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER '' / M.P. NO.112/MDS/2017 (IN W.T.A. NO.15/MDS/2016) ( )( / ASSESSMENT YEAR : 2006-07 M/S SRI KRISHNA TILES & POTTERIES (MADRAS) PVT. LTD., FLAT A-1, KUMARA VIJAYAM, NO.99, ROYAPETTAH HIGH ROAD, MYLAPORE, CHENNAI - 600 004. PAN : AADCS 4844 G V. THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE VI(4), CHENNAI - 600 034. (+,( /PETITIONER) (+-,./ RESPONDENT) +,( 0 1 /PETITIONER BY : SHRI R. SUBRAMANIAN, CA +-,. 0 1 / RESPONDENT BY : SHRI ASHISH TRIPATHY, JCIT 2 0 3% / DATE OF HEARING : 02.06.2017 4') 0 3% / DATE OF PRONOUNCEMENT : 09.06.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER O F THIS TRIBUNAL DATED 23.09.2016. 2 M.P. NO.112/MDS/17 2. SHRI R. SUBRAMANIAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THERE ARE TWO FLATS FLAT A-1 AND A-9. IN FACT, THE FLAT NO.A-1, KUMARA VIJAYAM AND FLAT NO.A -9, R.H. ROAD, MYLAPORE WERE SUBJECT MATTER OF LITIGATION. THE AS SESSEE CLAIMED BEFORE THIS TRIBUNAL THAT FLAT A-1, KUMARA VIJAYAM WAS USED FOR BUSINESS PURPOSE AND FLAT NO.A-9 WAS USED FOR RESID ENTIAL PURPOSE. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE F URTHER CLAIMED THAT FLAT A-9 WAS LET OUT MORE THAN 300 DAYS, THERE FORE, IT CANNOT BE TREATED AS ASSET UNDER SECTION 2(E)(A) OF THE WEALT H TAX ACT, 1957. A COPY OF THE RENTAL AGREEMENT WAS FILED BEFORE THE ASSESSING OFFICER. ACCORDING TO THE LD. REPRESENTATIVE, THIS TRIBUNAL WHILE CONSIDERING THE APPEAL OF THE ASSESSEE DIRECTED THE ASSESSING OFFICER TO RE-EXAMINE THE MATTER AFTER GIVING A REA SONABLE OPPORTUNITY TO THE ASSESSEE. NOW THE ASSESSING OFF ICER CLAIMS THAT WHAT WAS REMANDED BACK TO HIM FLAT NO.A-1 AND NOT F LAT A-9. THEREFORE, THE LD. REPRESENTATIVE SUBMITTED THAT TH E MATTER MAY BE CLARIFIED. 3. ON THE CONTRARY, SHRI ASHISH TRIPATHY, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE SUBJECT MATTER W AS REGARDING TWO FLATS, FLAT A-1 AND FLAT A-9. THE TRIBUNAL REMANDE D BACK THE MATTER TO THE ASSESSING OFFICER REGARDING FLAT A-1. HOWEV ER, THERE WAS NO 3 M.P. NO.112/MDS/17 REFERENCE ABOUT FLAT A-9. REFERRING TO THE ASSESSM ENT ORDER, THE LD. D.R. SUBMITTED THAT FLAT A-9 WAS USED AS RESIDE NTIAL PURPOSE AND IT WAS LET OUT LESS THAN 300 DAYS. THEREFORE, IT HAS TO BE CONSIDERED AS ASSET. HENCE, THERE WAS NO ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN RESPECT OF FLAT A-1, THE MATTER WAS REMANDED BACK TO THE FILE OF TH E ASSESSING OFFICER TO CONSIDER WHETHER IT WAS USED FOR BUSINES S PURPOSE OR NOT. IN RESPECT OF FLAT A-9, THE ORDER OF THIS TRIBUNAL IS SILENT. THE ASSESSEE CLAIMS THAT IT WAS LET OUT FOR MORE THAN 3 00 DAYS. THE ASSESSEE HAS PRODUCED COPY OF RENTAL AGREEMENT WHIC H IS FOR 11 MONTHS. WHEN THE AGREEMENT WAS FOR 11 MONTHS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IRRESPECTIVE OF TERM OF AGREEMENT AND PERIOD, TAMIL NADU BUILDINGS (LEASE AND RENT CONTRO L) ACT, 1960 WOULD COME INTO OPERATION. THEREFORE, THE ASSESSEE CANNOT VACATE THE TENANT ON THE GROUND THAT LEASE PERIOD HAS EXPI RED. IN VIEW OF THE STATUTORY PROTECTION TO THE TENANT UNDER THE TA MIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960, IT CA NNOT BE SAID THAT LEASE PERIOD WAS ONLY FOR 11 MONTHS AND IT WAS LESS THAN 300 DAYS. THEREFORE, THE ASSESSING OFFICER HAS TO EXAMINE THE LEASE 4 M.P. NO.112/MDS/17 AGREEMENT IN THE LIGHT OF TAMIL NADU BUILDINGS (LEA SE AND RENT CONTROL) ACT, 1960 AND THEREAFTER DECIDE THE ISSUE. ACCORDINGLY, IT IS CLARIFIED THAT MATTER RELATING TO BOTH FLAT A-1 AND FLAT A-9 IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER AND THE A SSESSING OFFICER SHALL EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE, INCLUDING THE RENTAL AGRE EMENT, AND THEREAFTER DECIDE THE ISSUE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED COURT ON 9 TH JUNE, 2017 AT CHENNAI. SD/- SD/- (. !'# ! ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 9 TH JUNE, 2017. KRI. 0 +37' 8')3 /COPY TO: 1. +,( / PETITIONER 2. +-,. /RESPONDENT 3. 2 93 () /CIT(A) 4. 2 93 /CIT 5. ': +3 /DR 6. ;( < /GF.