Sri. N Prathap Kumar , Bangalore V. The Assistant Commissioner of Income Tax Circle-5(2)(1), Bangalore

MA 155/BANG/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4569 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 21-12-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHINI BESAGANNI
• Section: 54F; 254(2); 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH : BANGALORE BEFORE SHRI. CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) Assessment Year : 2013-14 Sri N. Prathap Kumar, Prop: Prathap Electricals, No. 32/2, 5 th Main, Chamarajpet, Bangalore – 560 018. PAN: ADZPK5497K Vs. The Assistant Commissioner of Income Tax, Circle – 5 (2)(1), Bangalore. APPELLANT RESPONDENT Assessee by : Shri G.S. Prashanth, CA Revenue by : Smt. Priyadarshini Besaganni, JCIT (DR) Date of Hearing : 01-04-2022 Date of Pronouncement : 29-04-2022 ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present miscellaneous petition is filed by the assessee, alleging certain factual mistakes apparent on record, in the order dated 11/10/2021 passed by this Tribunal, in the above referred appeal. 2. The Ld.AR submits that, this Tribunal denied the claim of assessee under section 54F in para 11.5, by observing that, the assessee owned multiple residential properties as on the date of purchase of new asset which is not the correct factual position. Page 2 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) 3. The Ld.AR submitted that, this Tribunal referring to the statement of income filed by the assessee in the paper book for relevant assessment year under consideration, submitted that, the 1 st property mentioned therein, is a self occupied residential property, however the remaining 2 properties that are let out, were commercial properties. He thus submitted that, the assessee cannot be denied the exemption under section 54F, as the let out properties being commercial properties, assessee satisfies the requirement for claim under section 54F of the Act. 4. On a query being raised by the bench, in respect of any documentary evidence to establish that both the let out properties were commercial properties, the Ld.AR, vide his application dated 15/03/2022, submitted two Lease Agreements entered into by the assessee and respective lessees, dated 01/01/2011 and 21/04/2012. 5. On verification of the evidence is filed, it was pointed by the bench that the address of the properties mentioned in the lease agreements did not tally with the address revealed by assessee in the statement of income for assessment year 2013-14 placed at page 2 of paper book, filed at the time of original hearing of appeal by this Tribunal. The Ld.AR, however, vehemently argued that the both the let out properties referred to in the statement of income filed by assessee for year under consideration, are the properties leased out as per the lease agreement dated 1/01/2011 and 21/04/2012. In respect of the 2 nd let out property as per the statement of income for assessment year 2013-14 placed at page 2 of paper book, filed at the time of original hearing of appeal by this Tribunal, the Page 3 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) name of the tenant itself reveals that, it is a commercial property, which is further substantiated through the lease agreement dated 21/04/2012 that was filed at the time of hearing of the present miscellaneous petition. 6. This Tribunal, not being satisfied with the evidence filed by assessee, in respect of the first let put property as per the statement of income for assessment year 2013-14 placed at page 2 of paper book, filed at the time of original hearing of appeal by this Tribunal, granted one more opportunity to establish the factual allegation raised by assessee in the miscellaneous petition filed before this Tribunal. 7. Thereafter on 31/03/2022 assessee filed an affidavit which is reproduced as under: Page 4 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) Page 5 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) Page 6 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) 8. On perusal of para 2 of the affidavit, it can be seen that assessee is referring to a commercial property situated at 1 st and 2 nd floor, shop No.39, Rajaram Mohan Roy Road, Opp.Kanteevera Stadium, Bangalore- 27, Whereas, the 1 st let out property as per the statement of income filed by assessee, for year under consideration, which was placed in the paper book at page 2, filed at the time of original hearing of appeal, refers to: 73 Sampangiramnagar Building , 1 st cross, Sampangiramnagar , Bangalore – 19 9. The assessee, in para 2 states that, the address was erroneously mentioned in the computation statement filed before this Tribunal. 10. The issue that primarily arises before this Tribunal is whether an affidavit could be filed in miscellaneous petition, without there being any supportive documents establishing the mistakes apparent from record as per section 254(2) of the Act. To our mind, the answer to this question is a simple ‘NO” as this is a self serving document. 11. Referring to the lease agreement dated 01/01/2012, clearly reveals that, it pertains to another commercial property. The assessee did not file any documents to support its argument that, the 1 st let out property in the statement of income, against which no name of tenant is mentioned is a wrong address. This, we are deciphering from the annual let out value Page 7 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) computed by assessee in the statement of income placed at Page 2 of the paper book for year under consideration reproduced in the order passed by this Tribunal, is not the same as that is mentioned as per Clause 2 of the lease agreement dated 01/01/2011. 12. Further, the Ld.AR submitted that this Tribunal in assessee’s own case for assessment year 2012-13, vide order dated 17/01/2020, held that, the above-mentioned let out properties are not residential house properties, and accordingly, deduction under section 54F was allowed for assessment year 2012-13. 13. On perusal of the order for assessment year 2012-13 placed at page 115-119 of the paper book, filed at the time of original hearing, we known that this Tribunal, therein observed as under: “6............................................. as per page 7 and 8 of the paper book where the revised computation of income and original computation of income is available, the assessee is showing income from let out horse property but the objection of the AO that assessee is owning more than one residential house as per para 9 of assessment order is based on ownership of one self- occupied house property and 9 unsold flats and hence, it appears that this let out house property is not residential house property and therefore, this proviso is not invokable and not invoked by the AO because of ownership of this house property. Therefore, there is no justification of disallowing this claim of the assessee.” 14. The above view by the coordinate bench of this Tribunal in preceding assessment year, in assessee’s own case, is a presumption. In the present facts of the case before us for the year under consideration, the Ld.AR has not been able to establish at the time of hearing of present miscellaneous Page 8 of 8 M.P. No. 155/Bang/2021 (in ITA No. 751/Bang/2019) petition that, the let out property at, 73 Sampangiramnagar Building, 1 st cross, Sampangiramnagar, Bangalore – 19 is a commercial property. In fact the lease agreement clearly revels that it is a different property, located at different location. 15. Based on the above, we are of the opinion that, there is no mistake apparent on record in the impugned order dated 11/10/2021, as pointed out by the Ld.AR in the miscellaneous petition. In the result the miscellaneous petition filed by assessee stands dismissed. Order pronounced in the open court on 29 th April, 2022. Sd/- Sd/- (CHANDRA POOJARI) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 29 th April, 2022. /MS / Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, ITAT, Bangalore