ACIT 3(1)(2), MUMBAI vs. EVEREST KANTO INVESTMENT & FINACE P. LTD, MUMBAI

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 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).

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.

“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:

vide order dated 13.09.2013 in favour of the assessee by the following order:

“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 jurisdictional High Court on a similar issue and respectfully following the said judicial pronouncements, we reverse the impugned order of the ld. CIT(A)

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.

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.

this appeal has been heard by us. Upon careful consideration, we 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 jurisdictional 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.

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 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 आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant

आदेशानुसार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt.