VIJAYA MALLYA, MUMBAI V. ITO - 15(2)(4), MUMBAI

MA 257/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5259 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 01-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: FAROOKH V IRANI
• Keywords: Rectification of order

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO. 257/MUM/2016 IN ITA NO.6192/MUM/2013 A Y : 2009-10 MRS. VIJAYA MALLYA 4/C-1504 WHISPERING PALMS CHS LTD., AKURLI ROAD, LOKHANDWALA TOWNSHIP, KANDIVLI (EAST), MUMBAI-400101 PAN: ALQPK6037J VS. INCOME TAX OFFICER -15(2)(4) MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI FARO OKH V. IRANI (AR) REVENUE BY : SHRI PURUSHOTTAM KU MAR (DR) DATE OF HEARING : 16.12.2016 DATE OF ORDER : 06.01.2017 ORDER PER PAWAN SINGH, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY THE ASSESSEE FOR RECTIFICATION OF ORDER DATED 15.01.2016 PASSED IN ITA NO. 6192/MUM/2013 FO R AY-2009-10. THE APPLICANT/ASSESSEE INTERALIA PLEADED THAT SHE HAS BEEN STAYING AT FLAT NO.4/C, WHISPERING PALMS CHS LTD LOKHANDWALA TOWNSHIP, KANDIVALI WITH HER HUSBAND. THIS FLAT IS OWNED BY HER HUSBAND. THE ASSESSEE ALONG WITH HER HUSBAND BOOKED A NEW RESIDENTIAL FLAT AT 901, 9 TH FLOOR, SKY FLAMA, A WING, DOSTI FLAMINGOS, TOKER SHI JIVRAJ ROAD, PAREL- SEWRI MUMBAI (SEWRI FLAT). THE POSSESSION OF THIS FLAT WAS TAKEN ON 27 MARCH 2009. THE SEWRI FLAT IS NEITHER OCCUPIED BY ASSESSEE NOR HER HUSBAND AND CONTINUES TO BE LET OUT. THIS FLAT WAS FIRST LET OUT W.E.F. 20 TH MAY 2009 BY LEAVE AND LICENCE DATED 12.06.2009. THIS FLAT CONTINUES TO BE LET OUT TO DATE AND / OR NEVER OCCUPIED BY ASSESSEE OR HER HUSBAND. HER HUSBAND AVAILED LOAN OF RS.1,70,60,000/- FROM C ITI BANK FOR PURCHASE OF THIS FLAT. DURING THE AY 2009-10, THE TOTAL INTEREST OF RS.15, 09,289/- WAS PAID TO CITI BANK OUT OF WHICH 50% SHARE IS RS.7,54,645/- WHICH WAS HER SHAR E AND REMAINING SIMILAR/ EQUAL IS OF HER HUSBAND. IN CASE OF HER HUSBAND THE ENTIRE AMOU NT OF INTEREST OF RS. 7,54,644/-WAS ALLOWED BY ITO IN THE ASSESSMENT U/S 143(3). IT I S FURTHER PLEADED IN THE APPLICATION THAT DURING THE HEARING, ADDITIONAL INFORMATION WAS REQU IRED FROM THE ASSESSEE ABOUT THE 2 M.A.NO. 257/MUM/2016 MRS. VIJAY MALLYA ASSESSMENT OF HIS HUSBAND SHRI VARADARAYA MALLYA IN RESPECT OF DEDUCTION OF CLAIM OF INTEREST. THE ADDITIONAL INFORMATION WAS PROVIDED B Y THE ASSESSEE BY FILING ADDITIONAL PAPER BOOK (PB) NO. 2 CONSISTING OF 25 PAGE. THE AS SESSEE WAS NOT GRANTED SIMILAR RELIEF BY TRIBUNAL DESPITE FILING CERTAIN INFORMATION DURI NG THE HEARING, HOLDING THAT ASSESSEE OWNED ONE HOUSE IN HER NAME, THUS THERE IS MISTAKE IN THE ORDER PASSED ON 15.01.2016 WHICH REQUIRE RECTIFICATION. 2. WE HAVE HEARD SHRI FAROOKH V. IRANI, LD. SR. ADVOCA TE FOR ASSESSEE AND SHRI PURUSHOTTAM KUMAR, LD. DR FOR REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE ARGUED THAT ASSESSEE FILED COPY OF ASS ESSMENT ORDER OF HER HUSBAND, WHEREIN HER HUSBAND SHRI VARADARAYA MALLYA WAS ALLOWED INTE REST EXPENSES OF RS.7,54,644/-AND THE TRIBUNAL DESPITE CALLING INFORMATION NEITHER DI STINGUISHED THE CASE OF HER HUSBAND NOR GRANTED SIMILAR RELIEF. IT WAS FURTHER ARGUED THAT THE ASSESSEE IS ALSO ENTITLED FOR THE SIMILAR RELIEF. THUS, IT WAS PRAYED THE ORDER DATED 15.01.2 016 PASSED BY TRIBUNAL MAY BE RECTIFIED ACCORDINGLY. 3. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW. THE FACT OF THE CASE OF ASSESSEE S HUSBAND SHRI VARADARAYA MALLYA IS ENTIRELY DIFFERENT. THE HUSBAND OF ASSESSEE OWNED T WO RESIDENTIAL PROPERTIES I.E. FLAT NO.4/C, WHISPERING PALMS CHS LTD LOKHANDWALA TOWNSH IP, KANDIVALI, MUMBAI AS WELL AS FLAT NO. 901, 9 TH FLOOR, SKY FLAMA, A WING , DOSTI FLAMINGOS, TOKE RSHI JIVRAJ ROAD, PAREL- SEWRI MUMBAI (SEWRI FLAT). ON THE CONTRARY, THE ASSESSEE IS CO-OWNER OF ONLY ONE FLAT I.E. FLAT AT SEWRI. WE HAVE CONCLUDED IN OUR O RDER DATED 15.01.2016 THAT CLAUSE (B) OF SUB-SECTION 2 OF SECTION 23 IS NOT APPLICABLE TO TH E ASSESSEE. AS PER OUR CONSIDERED OPINION, THERE IS NO MISTAKE APPARENT IN THE ORDER DATED 15.01.2016 WHICH MAY REQUIRE RECTIFICATION UNDER SUB-SECTION 2 OF SECTION 254 OF THE ACT. HENCE, THE PRESENT M.A. FILED BY ASSESSEE IS DISMISSED. NO ORDER AS TO COST. 4. IN THE RESULT, MA FILED BY THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH JANUARY, 2017. SD/- SD/- /-/- (B.R.BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 06/01/2017 S.K.PS / COPY OF THE ORDER FORWARDED TO : 3 M.A.NO. 257/MUM/2016 MRS. VIJAY MALLYA / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. //TRUE COPY/