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IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH “D”,MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No.6574 to 6576/Mum/2016 (Assessment Year- 2007-08 to 2009-10) Mrs. Rupali Bhavesh Gandhi DCIT-CC-6(3), 19th Floor, Air India Building, C/o SKIL House, 209, Bank Street Cross Lane, Fort, Vs. Nariman Point, Mumbai-400023 Mumbai-400021. PAN: AEIPG4028E (Appellant) (Respondent)
Assessee by : Shri S.K. Mutsaddi (AR) Revenue by : Shri B. Pruseth (DR) Date of hearing : 04.10.2017 Date of Pronouncement : 04.10.2017
Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This set of three appeals by assessee under section 253 of Income Tax Act
(the Act) are directed against the separate order of Ld. Commissioner of Income-Tax-54, Mumbai [hereinafter referred as ld. CIT(A)] dated 8th July
2016 for Assessment Years (AY) 2007-08, 2008-09 & 2009-10. The
assessee has raised the identical grounds of appeal, facts are also similar
for all AYs. Thus, all appeals were heard together and are decided by a
common order. 2. The perusal of record reveals that all the appeals were filed after nine days
of prescribed period of limitation. The assessee has filed a combined
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application for condonation of delay of 9 days in all appeals. 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 2007-08. The
assessee has raised following grounds of appeal:
“1. On facts & circumstances of the case and in law the learned CIT(A) has erred in upholding the addition made by the AO of Rs.5,04,987/- in respect of under the head income from house property in respect of the appellant's share of 50% in the flat at H-3 Breach Candy Apartments, which was estimated by the AO. The CIT(A) further erred in rejecting the appellant's argument that since the properties were co-owned and the co-owner having occupied the same, the ALV of the property was Rs.NIL. Without prejudice to the above, the ALVs estimated by the AO in respect of the appellant's share in the properties is excessive. 2. On facts & circumstances of the case and in law the learned CIT(A) has erred in rejecting the appellant's plea that the addition made of Rs.5.04 Lakhs as stated in the above ground is bad in law.”
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Brief facts of the case are that the assessee filed return of income for relevant AY on 02.11.2007 declaring total income of Rs. 2,258/-. The assessment was completed under section 143(3) of the Act on 07.12.2009 assessing the total income of Rs. 3,563/-. 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. Consequent upon the search notice under section 153A dated 21.08.2012 was served upon the assessee. In response to the said notice, the assessee filed her return of income on 18.10.2012 declaring total income of Rs. 2260/- as declared originally. The assessment was completed under section 143(3) r.w.s. 153A on 26.03.2014. The Assessing Officer (AO) while framing the assessment order besides making the addition under section 14A of Rs.5413/- made an addition of Rs. 5,04,987/- under the head “Income from House Property”. The AO estimated the Annual Value of House Property being 50% share of assessee in Flat No. H-3, Breach Candy Apartments. On appeal before the ld. CIT(A), the action of AO was sustained. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us. 5. 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 during the search operation, no incriminating material qua the Income
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from House Property for the relevant assessment was found or seized. Thus, no addition can be made against the assessee in respect of assessment which has already been finalised. It was argued that the assessment under section 143(2) was completed on 07.12.2009. It is settled law that no addition in the concluded assessment in absence of incriminating material seized. In support of his submission, the ld. AR of the assessee relied upon the decision of CIT Vs Murli Agro Products Ltd. [2014] 49 taxmann.com 172 (Bombay), CIT Vs Continental Wharehousing Corporation Nava Sheva Ltd. 374 ITR 645 (Bombay HC), CIT Vs Kabul Chawla (61 taxman.com 412 (Delhi HC), Parag M. Sanghvi Vs ACIT (63 taxman.com 118 (Mumbai ITAT), Rawal Das Jaswani vs ACIT (61 taxman.com 343 (Raipur ITAT), ACIT Vs Jayendra P. Jhaveri (46 taxman.com 457 (Mumbai ITAT) and Bermaco Energy Systems Ltd. Vs DCIT (ITA No. 2198/2199 & 2022/Mum/2013). On the other hand, the ld. DR for the Revenue supported the order of authorities below. It was argued that incriminating material was seized during the search action on 12.10.2011. On specific query from ld. DR for the Revenue that if any incriminating material related to Income from House Property for relevant assessment year, found or seized in said search action. The ld. DR for the Revenue fairly conceded that no incriminating material related to Income from House Property for the year under consideration was seized.
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We have considered the rival submission of the parties and have gone through the orders of authorities below. It is an admitted fact that assessment for relevant AY was completed under section 143(3) on 07.12.2009. A search and seizure action was conducted on 12.10.2011. Admittedly, there is nothing on record which may suggest that any incriminating material was unearthed for the assessment year under consideration during the said search related with Income from House Property. The Hon’ble jurisdictional High Court in case of CIT vs. Continental Wharehousing Corporation Nava Sheva Ltd. (supra) held that no addition can be made in respect of assessment which has become final, if not incriminating material is found during the search. Similarly, the Hon’ble Delhi High Court in CIT vs. Kabul Chawla (supra) held that completed assessment can be interfered by AO while passing the assessment order under section 153A only on the basis of incriminating material unearthed during the course of search which was not produced or not already disclosed during the original assessment. Thus, considering the decision of Hon’ble jurisdictional High Court and Hon’ble Delhi High Court, no addition on account of Income from House Property could be made in the assessment order completed under section 143(3) way back on 107.12.2009. Hence, the grounds of appeal raised by assessee are allowed. ITA No. 6575/Mum/2016 AY-2008-09
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The assessee has raised the identical grounds of appeal as raised in appeal for AY 2007-08. The assessment for the year under consideration was completed under section 143(3) of the Act on 27.10.2010. Further, no
incriminating material was found in the search conducted on 12.10.2011. Considering the principle of consistency the ground of appeal raised by assessee is allowed.
ITA No. 6576/Mum/2016 AY-2009-10 8. The assessee has raised the identical grounds of appeal as raised in appeal for AY 2007-08 & 2008-09. The assessment for the year under consideration was completed under section 143(3) of the Act on
30.08.2010 accepting the total income of Rs. 6,35,250/-. A search and seizure action was conducted on 12.10.2011 under section 132 of the Act. No incriminating material related with Income from House Property was
found or seized. Considering the fact that we have already allowed the appeal for Ay 2007-08 & 2008-09. Thus, following the principle of consistency when the assessee has raised identical ground. Thus, this
ground of appeal raised by assessee is also allowed. 9. In the result, appeals filed by assessee for all AYs are allowed. Order pronounced in the open court on this 4th October, 2017. Sd/-/ - Sd/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 04/10/2017
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S.K.PS Copy of the Order forwarded to :
The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. BY ORDER, 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. (Asstt.Registrar) स�या�पत��त //True Copy/ ITAT, Mumbai