ASST CIT 16(2), MUMBAI vs. JANAK DILIP DWARKADAS, MUMBAI

1 ITA 6575/Mum/2017

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F”, MUMBAI

Before Shri Pawan Singh (JUDICIAL MEMBER) AND Shri G Manjunatha (ACCOUNTANT MEMBER)

ITA No. 6575/Mum/2017 (Assessment year : 2014-15)

ACIT-16(2), Mumbai vs Shri Janak Dilip Dwarkadas 3rd Floor, Mulla House 51, M.G. Road, Fort, Mumbai-400 001 PAN : AAEPD8303R APPELLANT RESPONDEDNT

Appellant by Shri Rajiv Gubgotra Respondent by Shri Sunil Lala

Date of hearing 09-07-2019 Date of pronouncement 17-07-2019

O R D E R Per Pawan Singh, JM : This appeal by revenue is directed against the order of CIT(A)-5, Mumbai

dated 10-08-2017. The revenue has raised the following grounds of appeal:-

“A) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting addition of Rs.4,84,693/- on account of Expected Reasonable Rent as per Section 23(1) of the Income Tax Act, which is calculated @ 8% of the value of property as per balance sheet value, as widely held by different courts. B) On the facts and circumstances of the case the order of the Ld. CIT(A) has erred in deleting disallowances of Rs. 83,57,117/- being 0.5% of average value of investment u/s 14A r.w.r. 8D(2) (iii) for the exempt income earned by the assessee.

2 ITA 6575/Mum/2017

The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the Assessing officer be restored.”

filed his return of income for AY 2014-15 declaring total income of

Rs.34,82,69,670. The return of income was selected for scrutiny and

assessment was completed u/s 143(3) on 27-12-2016. The AO, while passing

the assessment order, made addition on account of notional rental value in

respect of house property, i.e. farm house Bungalow in Pune of Rs.4,21,694 at

Rs. 5,40,000 thereby made total addition of Rs.9,61,494 on account of income

from ‘house property’. The AO also made addition /disallowance u/s 14A r.w.r.

8D of Rs.87,61,355 being 0.5% of average value of investment u/r 8D(2)(iiii).

The assessee filed an application u/s 154 seeking rectification of certain mistakes in the assessment order vide application dated 5th January,2017

stating that while calculating notional rent from Pune farm house and

Bungalw, the deduction was not given in respect of notional rent of Rs.60,000

and Rs.3,90,000 respectively, suo moto offered by assessee in his return of

income. The AO, after considering the contention of assessee rectified the

mistake and computed the income from house property in the following

manner:-

“ 1. Pune Farm House

3 ITA 6575/Mum/2017

Notional rent received Rs.6,02,419/-

Less: Suo moto offered by assessee Rs. 60,000/-

Rs.5,42,419/-

Less : Deduction @30% of

Annual Value u/s 24(a) Rs.1,62,726/-

Income from House Property Rs.3,79,693/-

===========

Notional Rent Received Rs.5,40,000/-

Less: Suto moto offered by assessee Rs.3,90,000/-

Rs.1,50,000/-

Less: Deduction @30% of Annual Value u/s 24(a) Rs. 45,000/- Rs.1,05,000/- “

stated that deduction of Rs.4,04,238 was not given while calculating

disallowance in respect of suo moto disallowance offered by the assessee. The

AO, thereby corrected the mistake and computed the revised total income as

under:-

Income as per order 143(3) of the I.T. Act, 1961 Dated 26.12.2013 Rs.35,79,92,720/-

Less:Income from House property Rs. 4,77,018/- Less: disallowance u/s14A r.w.r.8D Rs. 4,04,238/- Total Income Rs.35,71,11,481/- Rounded off Rs.35,71,11,480/-“

4 ITA 6575/Mum/2017

Aggrieved by the assessment order, assessee filed appeal before the CIT(A).

Being aggrieved by the order of Ld.CIT(A), the revenue has filed the present

appeal before us.

the grounds of appeal raised by revenue are covered by the decision of

Tribunal in assesse’s own case for AYs 2011-12 to 2013-14 in ITA

Nos.5200/Mum/2015 for AY 2011-12; ITA No.4845/Mum/2016 for AY 2012-13;

and ITA No.5024/Mum/2017 for AY 2013-14. On the other hand, the Ld.DR

supported the order of lower authorities.

through the orders of authorities below.

value. The Ld.AR for the assessee submits that this ground of appeal is

squarely covered by the decision of Tribunal for AYs 2011-12 to 2013-14. We

have perused the orders of authorities below and find that in assessee’s own

case for AY 2013-14, the Tribunal by considering the identical ground of appeal

passed the following order:-

“7. With regard to the first issue relating to determination of annual letting value of Pune Farm House property, we noticed that learned CIT(A) has followed the

5 ITA 6575/Mum/2017

binding decision rendered by Hon'ble Bombay High Court in the case of M.V. Sonawala (supra) and further we noticed that the view taken by Ld CIT(A) on an identical issue in A.Y. 2012-13 has since been upheld by the Coordinate Bench in ITA No. 4845/Mum/2016 (referred supra) with following observations :- “6. When this order was confronted to the teamed Sr. Departmental Representative, he relied on the assessment order and particularly he relied on the concession given by assessee that ratable value of Pune Bunglow be taken as f 5,46,000/-. We find that the Tribunal following the decision of Hon'ble Bombay High Court in the case of MV Sonawala Vs.CIT 246 ITR 1 77 (Bom.) directed the AO to compute the income of the assessee from house property taking the ALV on the basis of municipal ratable value. We find that the Tribunal has decided the issue and taking consistent view and respectfully following the same, we direct the Assessing Officer accordingly. This issue of Revenue's appeal is dismissed.” Under these set of facts, we are of the view that the order passed by learned CIT(A) on this issue does not call for any interference.”

own case for AY 2013-14 wherein identical issue for earlier years was

considered. No variation, in fact is brought to our notice. Therefore,

considering the decision of co-ordinate bench for preceding assessment year,

we do not find any merit in the ground of appeal raised by the revenue.

ground of appeal is also covered by the decision of earlier years, i.e. AYs 2010-

11 to 2013-14. The Ld.DR on the other hand, relied upon the order of

assessing officer.

disallowance was made for AYs 2010-11, 2011-12 and 2013-14. We have

further noted that on identical ground of appeal, the Tribunal in assessee’s

6 ITA 6575/Mum/2017

own case for AY 2013-14 by following the decision of co-ordinate bench for AY

2012-13 passed the following order:-

“8. The next issue relates to disallowance made u/s. 14A of the I.T. Act. We noticed that the assessee did not claim any expenditure relating to share investment activity in his profit and loss account. The assessee has charged all expenditure relating to share investment activity to his capital account. When the assessee did not claim any expenditure in the profit and loss account relating to share investment activity, in our view, the question of making any disallowance u/s. 14A of the Act does not arise. We noticed that an identical issue was considered by the Coordinate Bench in A.Y. 2012-13 (referred supra), and it has also taken view that the disallowance u/s. 14A of the Act is not called for, in the facts and circumstances of the case. The facts, being identical in this year also, we uphold the view taken by Ld CIT(A) on this issue by following the decision of co- ordinate bench rendered in the assessee's own case, referred supra.”

Considering the decision of co-ordinate bench on identical ground of appeal,

we do not find any merit in the ground of appeal raised by the revenue.

Order pronounced in the open court on 17-07-2019.

Sd/- sd/- ( G. Manjunatha) (Pawan Singh) ACCOUNTANT MEMBER JUDICIALMEMBER

Mumbai, Dt : 17th July, 2019 Pk/- Copy to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR /True copy/ By order

Asstt. Registrar, ITAT, Mumbai