ITO 25(3)(2), MUMBAI vs. PALLAVI V. GORADIA, MUMBAI

Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JM: 1. The present appeal filed by Revenue u/s 253 of the Income-Tax Act against the order of Commissioner of Income-tax (Appeals) [for short ‘the CIT(A)] –32, Mumbai dated 12.11.2014 for Assessment Year (AY) 2011-12. The Revenue has raised the following grounds of appeal: 1. "On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in holding that the income of Rs.2,00,000/- is income from house property and not as income from other sources ignoring that the assessee was not the owner of the property and was just carrying the tenant rights only. 2. "On the facts and in the circumstances of the case and in law, the Ld CIT(A) has erred in allowing deduction u/s 54F of the IT. Act without properly appreciating the fact that the deduction u/s 54F was claimed during assessment proceedings and without revising the Return of income and also the fact that the consideration received by the assessee was not appropriated towards the purchase of residential house and also beyond the time limit prescribed". 3. "On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deleting the addition of Rs. 10,37,725/- as unexplained income on account of capitalization of jewellery"

2 Smt. Pallavi V. Goradia 4. "The appellant prays that the order of Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored."

relates to the treatment of Income from House Property. The ld. DR for the Revenue supported the order of AO. The ld. DR argued that assessee is not the owner of the property which was let out on rent. Hence, the AO rightly treated the income from house property as ‘income from other sources’. On the other hand, the ld. AR of the assessee argued that the tenancy agreement dated 11.07.1991 contained the clause that the assessee has a right to sub-let the premises. The assessee exercised her right and let out the property to earn income from the house property. The ld AR of the assessee relied on the decision of Delhi High Court in Smarts (P) Ltd. vs. CIT (2008) 166 Taxman.53 (Del.) and further on the decision of the Tribunal in Machinery & Spares Vs JCIT in ITA No. 5965/M/2013 dated 21.01.2016.

4. We have considered the rival contention of the parties and seen the order of authorities below. The AO while framing the assessment issued a show cause notice to the assessee as to why the rental income on tenanted property should not be taxed under the head “Income from Other Sources”. The assessee filed his reply dated 30.12.2013 and contended therein that assessee has acquired the tenanted property

3 Smt. Pallavi V. Goradia with the right to exercise and to sublet the tenanted property and to earn rental income. The contention of the assessee was not accepted by the AO holding that the income derived by subletting is liable to be treated as income from other sources as the assessee is not the owner of the property. The ld. CIT(A) while considering this ground of appeal considered the definition of deemed ownership u/s 27(iiib) which is only for the purpose of charging of section 22 to 26 of the Act for the purpose of computation of income from House Property. The ld. CIT(A) concluded that the assessee was having full control over the property which was sublet for earning the rental income. The ld. CIT(A) relied upon the decision of Hon’ble Delhi High in Smarts (P) Ltd. vs. CIT (Supra) and directed the AO to treat the rental income of assessee as Income from House Property instead of Income from Other Sources. We have seen the contents of the rent agreement and by virtue of clause No. 26 the assessee has right to sublet the property. The assessee is holding the tenancy right in the property from last more than 24 years. The assessee has full control over the property from more than two decades and by exercising the right to sublet the property was sublet to the tenant for earning the rental income. Thus, we do not find any illegality or infirmity in the order passed by ld. CIT(A)while granting relief to the assessee. Thus, this ground of appeal raised by the Revenue is dismissed.

5. Ground No.2 relates to the deduction u/s 54F. The ld. DR for the Revenue argued that assessee during the assessment proceeding claimed the benefit u/s 54F without claiming any exemption at the time of furnishing the return of income and the AO rightly denied the exemption u/s 54F of the Act. On the other hand, ld. AR of the assessee argued that the assessee is eligible to raise the claim before the appellate authority in view of the decision of jurisdictional High Court in CIT vs. Pruthvi brokers and Shareholders( 349 ITR 336). It was further argued that the second ground for rejecting the exemption was that assessee not invested the sale proceed in purchase of new house and purchase the new house from other sources. It was further argued that one to one nexus is not required while investing the sale proceed to purchase a new house as per the decision of Mumbai Tribunal in ACIT vs. Dr. P.S. Pasricha (2008) 20 SOT 468 and the decision of Hyderabad Tribunal in Munner Khan vs. ITO (2010(14 SOT 504 (Hyd.)

4 Smt. Pallavi V. Goradia 6. We have considered the rival contentions of the parties and gone through the orders of the authorities below. The AO denied the claim of exemption u/s 54F holding that no such claim was made while filing return of income but the same was made during the course of assessment proceeding. The ld. CIT(A) while considering the decision of jurisdictional High Court in CIT vs. Pruthvi brokers and Shareholders (supra) admitted the grounds of appeal. The ld CIT(A) while considering the claim on of assessee on merit followed the decision of Munner Khan vs. ITO (supra) and the decision of Mumbai Tribunal in ACIT vs. Dr. P.S. Pasricha allowed the claim of assessee u/s 54F of the Act. We have gone through the decision of co-ordinate bench in Munner Khan vs. ITO (supra) and Dr. P.S. Pasricha wherein it was categorically held that it is quite irrelevant that the same fund must be utilized for purchase of the new house. We have noticed that the ld CIT(A) considered all the facts before granting exemption u/ s 54 of the Act. Thus, is no infirmity or illegality in the order passed by ld. CIT(A). Thus, ground of appeal raised by the Revenue is dismissed.

7. Ground No.3 relates to the deletion of addition of Rs. 10,37,725/- as unexplained income on account of capitalization of jewellery. The Ld. DR for the Revenue supported the order and argued that assessee was unable to explain the source of jewellery as shown in the balance-sheet of the order under consideration. On the other hand, ld. AR for the assessee supported the order of ld. CIT(A) and would argue that the AO made the addition without any independent enquiry and any cogent material on record against the assessee. The ld. CIT(A) appreciated the fact of the case and granted the relief. The assessee was in possession of the Gold Jewellery since 1982 worth Rs. 86,761/- which is valued by the Valuer at Rs. 10,37,725/-. The ld. AR of the assessee further filed the copy of Valuer and the order of Wealth Tax for Ay 1982-83.

5 Smt. Pallavi V. Goradia holding that the assessee failed to produce the original valuation report and Wealth Tax order and there is no variation, only item which was possessed by the assessee on 31.03.1982 till date. The AO concluded that the assessee did not disclosed similar item of Gold and Diamond in any of her Income Tax returns. The ld CIT(A) considered the contentions of the assessee and concluded that AO has not made any independent investigation before making addition. The reasoning of the AO is merly based on suspicion. The assessee was not required to file wealth tax return as her net wealth was below the taxable limit. The AO has no valid reasons to doubt the jewelry which has been assessed under the Wealth Tax. The finding of the ld CIT(A) is well reasoned and does not require any further interference which we affirm. Thus, this ground of appeal is also failed.

Order pronounced in the open court on this 13th day of January, 2017.