RUPALI BHAVESH . GANDHI,MUMBAI vs. ACIT CEN CIR 38, MUMBAI

The perusal of record reveals that both the appeals were filed after nine days of prescribed period of limitation. The assessee has filed a combined application for condonation of delay of 9 days. In support of application the affidavit of Shri Mutsaddi, ld. Authorized Representative (AR) of the assessee is filed. In the affidavit, the deponent has stated that he is practicing as Chartered Accountant (CA) and partner of GPS & Associates and the delay in filing the appeals occurred as he was hospitalised and operated on 10.10.2016 for bilateral Ingunial Harnia and was discharged on 12.10.2016. It was argued that the impugned order was received on 01.09.2016 and the assessee was required to file appeal on or before by 31st October 2016. Since, he was not attending the office due to post operative care which resulted delay of nine days in filing the appeals. The ld. DR for the Revenue not objected for condoning the delay. Considering the contents of application and the affidavit, the delay of nine days in filing the appeal is condoned.

For appreciation of fact, we are referring the fact for AY 2010-11. The assessee has raised following grounds of appeal:

Brief facts of the case are that the assessee filed return of income for relevant AY on 23.10.2010 declaring total income of Rs. 13,09,600/-. The assessment was accepted under section 143(1) of the Act on 19.01.2012 at the same income as declared in the return of income. Subsequently, a search under section 132 was conducted at the premises of M/s Pipavav Defence and Offshore Engineering Co. Ltd. on 12.10.2011, thereafter notice under section 153A dated 21.08.2012 was served upon the assessee. The assessee filed her return of income on 28.10.2012 declaring the same as in the return filed on 23.10.2010. The assessment was completed under section 143(3) r.w.s. 153A on 26.03.2014 assessing the total income at Rs.23,33,854/- . The Assessing Officer (AO) while passing the assessment order besides the other addition and disallowance made the addition of under the heard ‘income from house property in respect of assessee’s 50% share in House Property in Flat No. H-3, Breach Candy Apartments and 25% share in Sagar Villa. Consequent upon made the addition of Rs.13,50,063/- in the total income of assessee. On appeal before the ld. CIT(A), the action of AO was confirmed. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us.

We have heard ld. AR of the assessee and learned DR for the Revenue and perused the material available on record. The ld. AR of the assessee argued that the AO while passing the assessment order made the addition on account of ‘Income from House Property’ on the basis of estimation. The AO has not made any enquiry regarding Annual Letting Value (ALV) of the House Properties or brought any material on record. It was further argued that ld. CIT(A) also confirmed the action of AO on similar lines and without making any independent enquiry. The ld. AR of the assessee relied upon the decision of Hon'ble Bombay High Court in CIT vs. Tip Top Typography [2014] 368 ITR 330(Bom). The ld. AR of the assessee prayed that the matter may be remanded to the file of AO to pass the order afresh after considering the decision in CIT vs. Tip Top Typography (supra). On the other hand, the ld. DR for the Revenue supported the order of authorities below. It was submitted that he has no objection, if the matter is restored to the file of AO to pass the order afresh in accordance with the decision of Hon'ble Bombay High Court in CIT vs. Tip Top Typography (supra).

We have considered the rival submission of the parties and have noted that the AO while framing the assessment order made the addition under the head ‘Income from House Property’ on the basis of estimation. The Assessing officer has not made any independent enquiry before making the addition. The order passed by assessing officer is not in accordance with the provisions of section 23 of the Act. Thus, considering the facts of the case and the submission of both the parties, the ground of appeal raised by assessee is restored to the file of AO with the direction to pass the order afresh after considering the decision of jurisdictional High Court in case of CIT vs. Tip Top Typography (supra). Needless to say that before passing the order, the AO shall grant opportunity of hearing to the assessee.

In the result, appeal of the assessee is allowed for statistical purpose.

The assessee has raised the identical grounds of appeal as raised in appeal for AY 2010-11. The fact of the case under consideration is almost similar.