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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: Shri Joginder Singh, & Shri N.K. Pradhan
Per Joginder Singh (Judicial Member) The Revenue is aggrieved by the impugned order dated 04/08/2015 of the Ld. First Appellate Authority, Mumbai, in 2 Everest Kantor Investment & Finance Pvt. Ltd. deleting the addition made in respect of house property and directing the Assessing Officer to adopt the rent actually
received by the assessee, during the relevant Assessment
Year, as annual value of the property and further erred in not appreciating the fact that the annual value of the property was correctly calculated by the Assessing Officer as per the specific
provision of section 23(1)(a) of the Income Tax Act, 1961
(hereinafter the Act).
During hearing, at the outset, the Ld. counsel for the assessee, Ms. Renu Kapoor, claimed that the impugned issue
is covered by the decision of the Tribunal in the case of assessee itself for Assessment Year 2007-08 (ITA
No.717/Mum/2011), order dated 04/12/2017. The Ld. DR
Shri V. Justin, fairly agreed to the extent that the Tribunal for Assessment Year 2007-08 has allowed the appeal of the assessee for statistical purposes.
We have considered the rival submissions and perused the material available on record. In view of the above,
3 Everest Kantor Investment & Finance Pvt. Ltd. we are reproducing hereunder the relevant portion from the aforesaid order dated 04/12/2017:-
“This appeal by the assessee is directed against the Order by the Commissioner of Income Tax (Appeals)-39, Mumbai (‘CIT(A)’
for short) dated 26.10.2010 and pertains to the assessment year
(A.Y.) 2007-08. 2. The grounds of appeal read as under:
The learned Commissioner of Income Tax (Appeals) has erred in law and on the facts of the case in directing the Assessing Officer to arrive at the fair rental value based on the value for assessment year 2004-05 as against rental value declared by the assessee.
In this case, this matter was earlier decided by the Tribunal
vide order dated 13.09.2013 in favour of the assessee by the following order:
At the outset, it has been pointed out that an identical issue raised in the grounds of appeal has been decided by the ITAT in favour of the assessee in the assessee’s own case in ITA Nos. 1718 to 1722/Mum/2009 for the A.Ys. 2001-02 to 2006-07 and in ITA No. 1747/Mum/2009 for the A.Y. 2005-06. The relevant findings of the Tribunal are extracted hereunder:
“In our opinion, the issue involved in the present case thus is squarely covered by the decision of co-ordinate bench of this Tribunal in the case of Reclamation Realty India P. Ltd. (supra) which in turn has relied on and followed by the judgments of Hon’ble Apex Court and Hon'ble juri ictional High Court on a similar issue and respectfully following the said judicial pronouncements, we reverse the impugned order of the ld. CIT(A)
4 Everest Kantor Investment & Finance Pvt. Ltd. on this issue and direct the A.O. to adopt the rent actually received by the assessee during A.Y. 2003-04 to 2006-07 as annual value of the property being more than the Municipal Retable Value. The additions made by the A.O. and confirmed by the Ld. CIT(A) on this issue are accordingly deleted allowing ground no. 2 of the assessee’s appeals for A.Y.2003-04 to 2006-07. In the absence of any contradictory facts brought on record by the Revenue, we, following the aforementioned order of the ITAT, decide the ground accordingly in favour of the assessee in the same line as aforementioned.
Against the above order, the Revenue has preferred an appeal before the Hon'ble juri ictional High Court. The Hon’ble
High Court vide order dated 17.11.2016 had held as under: The impugned order of the Tribunal dated 13th September, 4. 2016 allowed the Respondent-Assessee’s appeal by relying upon its decision rendered in respect of the same Respondent-Assessee for the assessment years 2001-02 to 2006-07 to determine the fair rent. The impugned order has directed the Assessing Officer to adopt rent actually received by the Respondent-Assessee during the assessment year 2003-04 as the annual value of the property as it is much more than the Municipal Rateable Value. The exercise of determining the annual value has to be done independently for each assessment year taking into account the rent which is received and the Municipal Rateable Value in the subject assessment year. This examination has not been done by the Tribunal in the impugned order.
Therefore, the question as framed for our consideration is answered in the negative i.e. in favour of the Appellant-Revenue and against the Respondent-Assessee. consequently, the impugned order dated 13th September, 2016 of the Tribunal is hereby set aside and the Appeal is restored to the file of the Tribunal for fresh disposal in accordance with law.
Pursuant to the above direction of the Hon’ble High Court,
this appeal has been heard by us. Upon careful consideration, we
5 Everest Kantor Investment & Finance Pvt. Ltd. note that the Hon’ble High Court has expounded that the exercise of determining the annual value has to be done independently for each
year taking into account the rent which is received and the municipal rateable value in the subject assessment year. In the present case, this exercise has not been done. Furthermore, for making this exercise relevant, factual materials are also not on record. Hence, we remit this issue to the file of the Assessing
Officer. The Assessing Officer shall examine the issue afresh taking
into account the Hon'ble juri ictional High Court direction as above with reference to the factual details. Needleless to add, the assessee should be granted adequate opportunity of being heard.
Both the counsel fairly agreed to the proposition.
In the result, this appeal by the assessee stands allowed for statistical purposes. “
In view of the above, we find that identical ground
was raised with respect to fair rental value. The Tribunal has considered the own case of the assessee for Assessment Year
2005-06 (ITA No.1747/Mum/2009) and 2001-02 to 2006-07
(ITA No.1718 to 1722/Mum/2009). The Revenue preferred the appeal before the Hon'ble High Court, wherein, vide order
dated 17/11/2016, certain directions were issued, which has 6 Everest Kantor Investment & Finance Pvt. Ltd. been reproduced in the aforesaid order dated 04/12/2017. In the light of the above order of the Tribunal, on the same
reasoning, this appeal of the Revenue is sent to the file of the Ld. Assessing Officer to examine the issue afresh taking into account the decision from Hon'ble High Court with respect to factual details and decide in accordance with law. The assessee be given opportunity of being heard with further
liberty to furnish evidence, if any, in support of its claim.
Thus, the appeal of the Revenue is allowed for statistical
purposes only.
Finally, the appeal of the Revenue is allowed for statistical purposes only.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 24/05/2018. (N.K. Pradhan) (Joginder Singh) लेखा सद"य / ACCOUNTANT MEMBER "या"यक सद"य / JUDICIAL MEMBER मुंबई Mumbai; "दनांक Dated : 24/05/2018 f{x~{tÜ? P.S /"नजी स"चव
7 Everest Kantor Investment & Finance Pvt. Ltd. आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. आयकर आयु"त(अपील) / The CIT, Mumbai. 4. आयकर आयु"त / CIT(A)- , Mumbai
"वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड" फाईल / Guard file.
आदेशानुसार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt.