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Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: Shri Joginder Singh, & Shri N.K. Pradhan
आदेश / O R D E R
Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 19/11/2015 of the First Appellate Authority, Mumbai.
M/s Patel India Pvt. Ltd. 2. During hearing, the ld. counsel for the assessee, Shri Rakesh Joshi, did not press ground no.3 and 4. The Ld. DR, Ms. Bharti Singh, had no objection to the request of the assessee, therefore, both these grounds, raised by the assessee, are dismissed as not pressed.
The only ground raised by the assessee pertains to confirming the addition of Rs.3,23,79,873/-. The ld. counsel explained that the assessee is the owner of seven properties since 1960 and all the properties are tenanted one. All the properties were claimed to be protected tenants. It was contended that in earlier years, the matter was examined by the Department and even travelled to the Tribunal, wherein, the matter was restored to the file of the Assessing Officer. Our attention was invited to page-94 of the paper book. It was also pleaded that the Department for Assessment Year 2004- 05 and 2005-06, on identical facts, accepted the claim of the assessee, while framing the assessment u/s 143(3) of the Act and no appeal has been preferred against those orders and also against the order of the Tribunal. On the other hand, ld. DR, contended that in the present assessment year, the Assessing Officer has brought on record certain new facts, therefore, the assessee has to explain the same. So far as, passing of earlier orders u/s 143(3) of the Act by the Assessing Officer and the remaining order, setting aside to the file of the Assessing Officer were not disputed by the Revenue.
3.1. We have considered the rival submissions and perused the material available on record. In the light of the M/s Patel India Pvt. Ltd. foregoing discussion/arguments, we are reproducing hereunder the relevant portion from the order of the Tribunal (ITA No.1037/Mu,/2007), order dated 19/12/2008 for ready reference and analysis:-
“These are cross appeals, the first one filed by the assessee and the second one filed by the Revenue and are directed against the order dated 12.1206 of the CIT(A) Central-IV, Mumbai, relating to Assessment Year 2003-04, For the sake of convenience both the appeals were heard together and are being disposed off by this common order.
The assessee in its only effective ground of appeal has challenged the order of the CIT(A) in disallowing an amount of Rs.7,47,365/- on account of salary. Similarly, the Revenue in the grounds has challenged the order of the CIT(A) in directing the Assessing Officer to re-compute the income of the block period after determining the standard rent of the property of the assessee under provisions of Bombay, Rent Control Act, 1997.
3. At the outset, the Learned Counsel for the assessee submitted that as far as the ground of the assessee is concerned, the Tribunal at para 18 of the order vide and ITA No.115/Mum/2003, order dated 17/03/2006 for the Assessment Year 1999-2000 has discussed the issue and has restored the matter to the file of the Assessing Officer. As regards, grounds raised by the Revenue in the appeal is concerned, the learned counsel for the assessee drew the attention of the Bench to para-9 of the said order and submitted that the Tribunal has also restored the matter to the file of the Assessing Officer with a direction that the standard rent may be determined as per provisions of Bombay Rent Control Act, 1997, and after taking into account cases referred by the Tribunal in the said order. He submitted that the co-ordinate Benches of the Tribunal in subsequent years have followed the order of the Tribunal for the Assessment Year 1999-2000. He accordingly, submitted that both the appeals should be restored to the file of the Assessing Officer to decide issue afresh in the light of the directions of the Tribunal in assessee’s own case for Assessment Year 1999-2000.
The Learned DR on the other hand fairly conceded the facts as stated by the Ld. Counsel for the assessee.
M/s Patel India Pvt. Ltd. 5. After hearing both the sides, we find similar isues have been considered by the Tribunal in assessee’s own case for Assessment Year 1999-2000. As regards the appeal of the assessee is concerned, we find the Tribunal vide and ITA No.115/Mum/2003 order dated 17/03/2006 at para 18 of the order has observed as under:
“18 We have heard the rival submissions. We are of the view that nature of these expenses are not elaborated. It is also not known whether entire expenditure was incurred against earning compensation income. The assessee has also shown income from house property. A part of such expenses seems to have been incurred on earning house property income. We therefore, restore the matter to the file of the Assessing Officer to decide as to whether entire expenditure was incurred for earning compensation income. If it is so it would be allowed u/s 56. If part of the expenditure is incurred o earning house property income than it would be suitably bifurcated and the expenditure relatable to earning house property income should dealt with under sec. 22 to 27. The other part pertaining to compensation income should be allowed u/s 53. The issue is decided accordingly.”
Similarly, as for as the grounds of appeal of the Revenue is concerned, we find the Tribunal towards the end of para 9 of the said order has observed as under:-
“The Assessing Officer will work out the standard rent by assuming himself as a Court under Bombay Rent Control Act and take into account factors as laid down in Shreyas K. Doshi’s case (Supra) and Laul’s case (Supra), while determining standard rent. With above observations we dismiss the appeal of the Revenue.”
We find, the co-ordinate Benches of the Tribunal, following the order of the Tribunal for Assessment Year 1999-2000 have restored the matters back to the file of the Assessing Officer for deciding the issues afresh in the light of the direction given by the Tribunal. We, therefore, respectfully following the order of the Tribunal in assessee’s own case for various assessment years restore the matter to the file of the Assessing Officer to decide the issues afresh in the light of the direction of the Tribunal in assessee’s own case for the Assessment Year 1999-2000.
In the result, appeals filed by the assessee as well as by the Revenue are allowed for statistical purposes.”
M/s Patel India Pvt. Ltd. 3.2. We find that in the aforesaid order, on identical facts, the Tribunal remanded the matter back to the file of the Assessing Officer in the light of direction of the Tribunal in the earlier years. On the same reasoning and following the earlier order of the Tribunal, on the principle of parity, we restore this appeal to the file of the Assessing Officer. The Ld. Assessing Officer is also directed to examine whether the facts are identical or there is difference in facts. After providing due opportunity of being heard, the Ld. Assessing Officer is directed to decide afresh in accordance with law. Thus, ground no. 1 & 2 raised by the assessee are restored to the file of the Assessing Officer and allowed for statistical purposes.
Finally, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 03rd, May, 2017.