ITO 1(2)(2), MUMBAI V. SUDHEER OMPRAKASH BAHL, MUMBAI

MA 87/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5739 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Fair market value
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE S HRI G.S. PANNU (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 87/ MUM /2016 ( ARISING OUT OF ITA NO. 3855/MUM./2011 ) ( ASSESSMENT YEARS : 2007 08 ) THE INCOME TAX OFFICER, WARD 1(2)(2), MUMB AI VS. SHRI SUDHEER OMPRAKASH BAHL, 41 B, JOLLY MAKER APARTMENT 1, CUFFE PARADE, MUMBAI 400005 PAN: AAMPB8549F (APPELLANT) (RESPONDENT) M .A. N O. 88 /MUM./2016 ( ARISING OUT OF ITA NO. 7712 /MUM/2011 ) ( ASSESSMENT YEAR : 2008 09 ) THE INCOME TAX O FFICER, WARD 1(2)(2), MUMBAI VS. SHRI SUDHEER OMPRAKASH BAHL, 41 B, JOLLY MAKER APARTMENT 1, CUFFE PARADE, MUMBAI 400005 PAN: AAMPB8549F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJAT MITTAL RESPONDENT BY : SHRI M SUBRAMANIAN DATE OF HEARING: 28/04 /201 7 DATE OF PRONOUNCEMENT: 15 / 0 6 /201 7 O R D E R PER RAM LAL NEGI, JM THE AFORESAID MISC. APPLICATIONS FILED BY THE REVENUE ARE DIRECTED AGAINST THE IMPUGNED COMMON ORDER DATED 9 TH SEP TEMBER 2015, PASSED BY THE 2 M.A. N O S . 87 & 88/MUM/2016 ASSESSMENT YEAR S : 2007 - 06 & 2008 - 09 ITAT , MUMBAI BENCH, ARISING OUT OF APPEALS ITA N O.3855 & 7712/MUM./2011, FOR ASSESSMENT YEAR 2007 08 AND 2008 09 RESPECTIVELY. 2. SINCE THE FACTS AND GROUNDS ARE IDENTICAL IN BOTH THE APPLICATIONS, EXCEPT VARIATION IN FIGURES, T HESE APPLICATIONS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 3. THE BRIEF FACTS OF THE CASE PERTAINING TO THE APPEAL PERTAINING TO THE ASSESSMENT YEAR 2007 - 08 ARE THAT THE ASSESSEE IS OWNER OF FLAT N O.91 B, MAKER TOWERS A&B CO OPERATIVE HOUSING SOCIETY LTD . CUFFE PARADE, COLABA MUMBAI. AS PER THE LEAVE AND LICENSE AGREEMENT DATED 11.3. 2006, THE SAID FLAT WAS LET OUT TO ABN AMRO BANK BY THE ASSESSEE, ON A MONTHLY RENT OF RS. 15,000 AND INTERE ST FREE DEPOSIT OF RS. 3.15 CRORE. THE ASSESSEE DISCLOSED THE ANNUAL RENTAL VALUE OF THE SAID FLAT AT RS. 1, 80 ,000/ - UNDER SECTION 23 OF THE ACT. THE ASSESSING OFFICER, TAKING INTO VARIOUS FACT ORS LIKE LOCATION OF THE BUILDING, QUALITY OF CONSTRUCTION OF B UILDING, AREA OF THE FLAT AND PREVAILING RENT OF PROPERTY IN THE LOCALITY DETERMINED THE RENT OF THE SAID FLAT AT RS. 54,00,000/ - . THE FIRST APPELLATE AUTHORITY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. STILL AGGRIEVED, T HE ASSESSEE PREFERRED SECOND AP PEAL BEFORE THE TRIBUNAL . T HE TRIBUNAL, BY FOLLOWING THE DECISION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009 10, DIRECTED THE ASSESSING OFFICER TO COMPUTE THE ANNUAL LETTING VALUE BY TAKING 20% INCREASE OF FAIR MARKET VALUE (AL V) . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. T H IS TRIBUNAL HAS ALLOWED THE ASSESSEES CASE ITA NO.3855 & 7712/MUM./2011 FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 RESPECTIVELY, BY FOLLOWING THE DECISION OF THE COORDINATE BENCH RENDERED IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009 10 IN THE SIMILAR SET OF FACTS AND CIRCUMSTANCES . THE MIS CELLANEOUS A PPLICATION FILED BY THE REVENUE AGAINST 3 M.A. N O S . 87 & 88/MUM/2016 ASSESSMENT YEAR S : 2007 - 06 & 2008 - 09 THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2009 - 10 HAS ALREADY BE EN DISMISSED BY THE E BENCH OF THE TRIBUNAL VIDE ORDER DATED 23.9.2016 . THE OPERATIVE PART OF THE ORDER READS AS UNDER: WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATION FILED BY REVENUE AS WELL AS ORDER OF THE TRIBUNAL. WE FOUND THAT THE APPEAL FIL ED BY THE REVENUE WAS DISMISSED BY TRIBUNAL VIDE ITS ORDER DATED 17 - 06 - 2015 BY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1999 - 2000 TO 2002 - 03 AND ASSESSMENT YEAR 2005 - 06. IT WAS BROUGHT TO OUR NOTICE THAT EARLIER O RDER OF THE TRIBUNAL HAS ALREADY BEEN CONFIRMED BY HONBLE HIGH COURT VIDE ITS ORDER DATED 22 - 2 - 2014. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY MISTAKE MUCH LESS AND APPARENT MISTAKE IN THE ORDER OF TRIBUNAL. 5. SINCE, THE ORDERS OF THE TRIBUNAL , PA SSED IN THE ASSESSEES OWN CASE FOR THE EARLIER YEARS HAVE BEEN CONFIRMED BY THE HONBLE HIGH COURT AND SINCE THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2009 - 10, WHICH WAS PASSED BY FOLLOWIN G THE ORDERS OF THE CO - ORDINATE BENCH RENDERED IN THE ASSESSEES OWN CASE FOR THE EARLIER YEARS, WE FIND NO MERIT IN THE PRESENT MISCELLANEOUS APPLICATION. THE REVENUE HAS FAILED TO DEMONSTRATE T HAT THE IMPUGNED ORDER DATED 09.9. 2015, PASSED BY THE TRI BUNAL SUFFERS FROM MISTAKE APPARENT ON RECORD. HENCE, IN OUR CONSIDERED OPINION THERE IS NO MISTAKE APPARENT IN THE ORDER UNDER CONSIDERATION, WHICH WARRANTS RECTIFICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 , AT THE INSTANCE OF THE R EVENUE. SI NCE, THE GROUNDS RAISED BY THE R EVENUE IN THE PRESENT MISC ELLANEOUS APPLICATION ARE NOT SUSTAINABLE , WE REJECT THE SAME AND DISMISS THE APPLICATION FILED BY THE REVENUE U/S 254(2) OF THE ACT. 6. FACTS OF THE CASE AND THE ISSUES INVOLVED IN THE APPEAL PE RTAINING TO THE ASSESSMENT YEAR 2008 - 09 ARE SIMILAR TO THE APPEAL OF THE ASSESSEE PERTAINING 4 M.A. N O S . 87 & 88/MUM/2016 ASSESSMENT YEAR S : 2007 - 06 & 2008 - 09 TO THE ASSESSMENT YEAR 2007 - 08. SINCE WE HAVE DISMISSED THE MISCELLANEOUS APPLICATION ARISING OUT OF THE APPEAL PERTAINING TO THE ASSESSMENT YEAR 2007 - 08, WE DISMI SS THE MISCELLANEOUS APPLICATION PERTAINING TO THE AY 2008 - 09 FOR THE SAME REASONS. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE FOR A SSESSMENT YEAR S 2007 - 2008 AND 2008 - 09 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE , 2017 . SD/ - SD/ - ( G.S. PANNU ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 15 / 0 6 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI