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Income Tax Appellate Tribunal, “SMC - B” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV & SHRI INTURI RAMA RAO
Date of hearing : 02.08.2017 Date of Pronouncement : 04.08.2017 O R D E R
Per Sunil Kumar Yadav, Judicial Member
This appeal is preferred by the assessee against the order of CIT(Appeals) inter alia on the following grounds:-
“1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The finding of the authorities below is perverse and is contrary to the evidence or record and thus is vitiated. 3. The order of the learned CIT Appeals is erroneous, as the main ground that the assessing officer ought to have considered the books of company which was not rejected but taken the Rentals as per the Agreements with the tenants, was never considered.
4. The learned CIT Appeals failed to appreciate that when the books of accounts are maintained, and accepted, without rejecting u/s 145, there is no scope for arriving the income on the basis of Rental Agreements.
5. The learned CIT Appeals is not correct in stating that "the grounds are not pressed and therefore the same are treated dismissed."
The books of account of the assessee which also contained the Rent received from different tenants' had not been rejected by the Assessing Officer for the relevant period and that there was no adverse material available with the Assessing Officer in respect of Rentals as per books, without finding any discrepancy in the books of account taking as per Agreements, was presumptive and contrary to the law. The reliance was placed on the following case laws:
1. 1. Sakthi Tourist Home vs. CIT [2009] 308 ITR 228 (Ker) 2. Smt. Amiya Bala Paul vs. CIT [2003] 262 ITR 407 (SC) 3. CIT vs. Star Builders [2007] 294 ITR 338 (Guj.) Now the Department is in appeal.
4. Sargam Cinema vs. CIT [2010] 328 ITR 513 (SC) 7. Appellant maintained books of account which were produced before the Assessing Officer who test checked those books, however, could not point out any discrepancy in those books of account. The books of accounts therefore not rejected u/s 145, Officer simply relied on the Agreements, while making the impugned addition is not justified.
8. CIT Appeals further has not considered the ground of appeal with regards to credit not given for the Self assessment tax paid of Rs. 1,47,016/- and also charging interest u/s 234 B & 234 C which is charged without giving credit for taxes paid.
9. For these and other grounds which may be taken up at the time of the hearing, the appellant pray for allowing the appeal by treating as Business Income and for allowing the Partners remuneration thereon.”
During the course of hearing, the ld. counsel for the assessee has contended that the CIT(Appeals) has not properly appreciated the facts and material placed before him and dismissed the appeal of the assessee. He has not rather considered the actual rent received by the assessee.
During the course of hearing, a specific query was raised that if there is factual in the order of AO, whether assessee has moved an application u/s. 154 of the Act and in response thereto, it was contended that he has moved application u/s. 154 and AO has passed an order thereon. The AO has accordingly taken rental income of Rs.31,45,508 without appreciating the contentions of the assessee that it has received lesser rent.
The ld. counsel for the assessee further contended that the matter be restored to the AO to re-examine the details of the actual rent received by the assessee and also the service tax paid out of rent received by the assessee.
The ld. DR, on the other hand, has placed reliance on the order of CIT(Appeals).
6. Having carefully examined the order of lower authorities in the light of rival submissions, I find that the CIT(Appeals) has examined the issue in detail in the light of assessee’s contentions. The CIT(A) has also taken note of the fact that actual rent received was Rs.31,45,508 against the rent considered by the AO at Rs.37,81,647. Though the assessee has argued orally, but no ground is raised with regard to payment of service tax by the assessee itself. General grounds were raised before me. I have, however, carefully examined the orders of lower authorities and I find that the CIT(Appeals) has taken note of actual rent received and has directed the AO to compute the actual rental income received after considering the fact that part period of property was vacant. Since the CIT(Appeals) has taken cognizance of the relevant facts and issued necessary directions to the AO, I find no infirmity in his order. Accordingly, I confirm his order.
In the result, the appeal of assessee is dismissed.
Pronounced in the open court on this 4th day of August, 2017.