DCIT, NEW DELHI vs. SH. RANJANA GARG, NEW DELHI

Facts of the case in brief are that a search and seizure operation u/s 132 of the Income Tax Act, 1961 (hereinafter referred to as the Act) was carried out in Rajdarbar Group of cases including the case of the assessee on 31.07.2008. The AO issued the notice u/s 153A of the Act dated 13.11.2009 requiring the assessee to file her return of income. In response the assessee filed the return of income on 01.12.2009 declaring an income of Rs.2,87,110/-. The said return filed u/s 153A of the Act was the same as was filed earlier u/s 139 of the Act. The assessee had shown income from house property, capital gain and other sources. The AO during the course of assessment proceedings observed that the assessee was co-owner of the property at 11, Ring Road, Lajpat Nagar-IV, New Delhi. The said building was earlier given on rent to M/s Institute of Information Technology on lease on a monthly rent of Rs.8,85,000/-. However, for the year under consideration no rental receipt had been shown from the above tenant, instead of this, the property was let-out to a family concern 7 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg M/s Global Realty Venture Ltd. for meager rent of Rs.5,000/- per month. The AO asked the assessee a detailed questionnaire as under:

As per the provisions of Section 23 of the I.T. Act, 1961, the annual value of any property shall be deemed to be- (a) the sum for which the property might reasonably be expected to let from year to year; or (b) Where the property or any part of the property is let and the actual rent received or receivable by the owner in respect thereof is in excess of the sum referred to in clause (a) the amount so received or receivable; or (c) Where the property or any part of the property is let and was vacant during the whole or any part of the previous year and owing to such vacancy the 8 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg actual rent received or receivable by the owner in respect thereof is less than the sum referred to in clause (a), the amount received or receivable.

In the present case, the property was earlier let out for a sum of Rs, 8,85,000/- per month. Therefore, the market rental value of the property can reasonably be taken at this value. Therefore, in the present case Annual value of the property No. 11, Ring Road, Lajpat Nagar-IV, New Delhi is Rs.1,06,20,000/-. As per the provisions of the I.T. Act, income from House Property is chargeable on the basis of Annual value of the property.

You are, therefore, requested to show cause as to why for the purpose of computation of income from House Property, the annual value of the said property should not be taken at Rs.1,06,20,000/- and income from house property be computed accordingly."

The AO after considering the submissions of the assessee observed that the property in question was rented out to M/s NIIT Institute of Information Technology under the lease agreement dated 12.07.2005 on monthly rent of Rs.8,85,000/-, but the assessee had not shown any receipt from the above party for the year under consideration. However, it had offered a meager rent of Rs.5,000/- per month from her family concern M/s Global Realty Venture Ltd. He further observed that the assessee had not brought 9 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg any satisfactory reason in regard to the non offering of income from house property as per Section 23(1)(a) of the Act which states that for the purpose of determining the income from house property, the annual value of the property shall be deemed to be sum for which the property might reasonably be expected to let from year to year. He was of the view that the property in question was fit to fetch minimum rent of Rs.8,85,000/- per month or Rs.1,06,20,000/- per annum. The AO held that the assessee was having 50% holding in the said property. He, therefore, worked out the income chargeable under the head “income from house property” as under:

Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted that the assessee is the co-owner with Smt. Amita Garg of the property No. 11, Ring Road, New Delhi, which is admeasuring about 725 sq. yds. having ground floor, first floor, second floor, third floor and part of 10 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg roofs nearly admeasuring approximately 30,000 sq. ft. and the entire building was leased to M/s NIIT Institute of Information Technology at a monthly rent of Rs.8,85,000/- for running a coaching institute but the same was vacated by NIIT and since then it was lying vacant. The assessee produced the copy of rent agreement with NIIT before the ld. CIT(A) and stated that the terms of lease agreement had already been expired, which was choosen by the lessee not to renew and thus the property remained vacant thereafter. It was further submitted that along with the aforesaid tenant one of the family concern M/s Global Realty Ventures Ltd. had taken two table and two chair space at the basement and put an employee just to ensure proper care of the building assessed by the same AO and a meager consideration of Rs.5,000/- per month had been charged from this concern which had been assessed by the same AO who did not consider the areas of lease while making drastic comparison of the rentals. It was further submitted that the AO while framing the assessment in the case of M/s Global Realty Ventures Ltd. had himself assessed the rental expenses claimed by it @ Rs.5,000 per month only. It was contended that the addition was made by the AO without going through the agreement of lease in which the space and rent for the 11 ITA Nos. 2346, 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg same had clearly been given and that the provisions of Section 23(1)(c) of the Act were applicable to the facts of the assessee’s case and not the provisions of Section 23(1)(a) of the Act invoked by the AO. It was further submitted that the AO had not appreciated the fact that the lessee company could claim higher deduction as rental payments against the profits whereas the income from the same property under the head income from house property would entail 30% of the deduction against the same income. The assessee also produced copy of the balance sheet of M/s Global Realty Ventures ltd. along with copy of ledger account of rent paid to the assessee.

The ld. CIT(A) after considering the submissions of the assessee deleted the addition made by the AO by observing in para 5.3 of the impugned order as under:

Now the department is in appeal and the assessee has filed Cross Objection. The ld. DR reiterated the observations made by the AO in the assessment order dated 30.12.2010 and further submitted that the assessee filed copy of the rent agreement before the ld. CIT(A) and not before the AO. It was further submitted that there is a contradiction in the observation of the ld. CIT(A) who on the one hand stated that the premises was vacated on the other hand stated that it was given on rent @ Rs.5,000 per month. It was further submitted that when M/s Global Realty Venture Ltd. was taking care of the property then service charges were to be paid to the said concern instead of charging rent from it. Therefore, the provisions of Section 23(1)(a) of the Act were applicable to the facts of the assessee’s case which the AO has rightly invoked and

In his rival submissions the ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the AO did not doubt that the property was vacant. It was further submitted that this property was sealed by the Municipal Corporation on 09.11.2006. Therefore, it could not be leased out and remained vacant. As such the provisions of Section 23(1)(c) of the Act were applicable and the ld. CIT(A) rightly deleted the arbitratory addition made by the AO.

We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed that the property in question was leased out to M/s NIIT Institute of Information Technology under the lease agreement dated 12.07.2005 on a monthly rent of Rs.8,85,000/-. The said lease agreement was for a period of 3 years. However, the assessee claimed that the said property was prematurely vacated by the tenant and remained vacant. However, nothing is brought on record to substantiate that the lease agreement was not in existence for the year under consideration and what were the reasons 15 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg for vacating the premises. In the present case, it is noticed that the assessee claimed that the premise was vacated premature due to hanging sealing drive by MCD and later on the premise was sealed by MCD on 09.11.2006, the said fact has been mentioned by the ld. CIT(A) in para 5.3 of the order dated 14.03.2012 passed in the case of co-owner Smt. Amita Garg. However, these facts were not brought by the assessee before the AO and nothing is mentioned in the impugned order of the ld. CIT(A) that new evidences were admitted under Rule 46A of the Income Tax Rules, 1962. It is well settled that nobody should be condemned unheard as per maxim “audi alteram partem” but in the present case, it appears that opportunity was not given to the AO while admitting the fresh evidences, if any. In the instant case, it is also noticed that the assessee on the one hand claimed that the premise was sealed on the other hand it claimed that a portion of the property was given on rent to M/s Global Realty Ventures Ltd. @ Rs.5,000/- per month and the said company was taking care of the rented property. From the said submissions, it is not clear that when M/s Global Realty Ventures Ltd. was taking care of the property then why the service charges were not paid to the said company, on the contrary, the rent was received. It is also not clear 16 ITA Nos. 2346, 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg when the property in question was sealed on 09.11.2006 as mentioned in para 5.3 page no. 6 of the order dated 14.03.2012 by the ld. CIT(A) in the case of Co-owner of the property then how it was given on rent to M/s Global Realty Ventures Ltd.

From the aforesaid discussion we are of the view that the facts of the present case were not appreciated by the ld. CIT(A) in right prospective. Therefore, we set aside the impugned order and remand the issue back to the file of the ld. CIT(A) for fresh adjudication in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the Cross Objection also the assessee has raised the same issue which we have restored back to the file of the AO, therefore, no separate findings are being given on the grounds raised by the assessee in the Cross Objection.

In the case of Smt. Amita Garg, the facts related to the main issue raised vide Ground No. 1 in the departmental appeal is similar to the grounds taken by the assessee in its Cross objection which are worded in the same manner as were in the case of Smt. Ranjan Garg. Therefore, our

One another issue has been raised in for the assessment year 2008-09 in the case of Smt. Amita Garg vide Ground No. 3 which relates to the disallowance of Rs.5,58,089/- made by the AO in respect of interest paid on loan, bank charges, legal expenses and telephone expenses.

Facts related to this issue in brief are that the AO during the course of assessment proceedings noticed that the assessee had debited an amount of Rs.5,58,089/- towards interest paid on loan, bank charges, legal expenses and telephone expenses etc. and had claimed this amount as business expenditure. The AO noticed that the document filed by the assessee revealed that she was not carrying on any business and profession during the year under consideration. Therefore, the said amount was disallowed.

Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted that she had earned income of Rs.5,50,114/- as interest on capital from partnership firm which was shown as income from business and profession in 18 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg the profit and loss account and computation of income. It was further submitted that against the said income, the assessee had claimed the interest paid amounting to Rs.5,58,089/-, which the assessee had to incur in the normal course of business. It was further submitted that it was the nature of the business of the assessee to take money as unsecured loan on interest and invest the same to earn the interest thereupon and that the assessee had invested the interest bearing funds in the capital account with the partnership firm M/s Nagar Panchwati and earned the interest income of Rs.5,50,114/-. Therefore, the interest expenses incurred to earn interest income should have been allowed as per the provisions of Section 28 as well as 37 of the Act. It was contended that the AO had not considered the facts that the income was earned by way of interest by the assessee and the said income had been earned throughout the year on balance invested in partnership firm. Therefore, the presumption of the AO that no business activity was done during the year was erroneous. It was contended that the assessee correctly claimed expenditure from the interest income earned but the AO had not properly appreciated the facts and made the disallowance illegally. The reliance was placed on the following case laws:

Now the departmental is in appeal. The ld. DR reiterated the observations made by the AO and strongly supported the assessment order dated 29.12.2010. He further 20 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg submitted that the assessee was not having any business activity, therefore, the interest expenses were wrongly claimed by the assessee. And the AO rightly made the disallowance.

In his rival submissions the ld. Counsel for the assessee reiterated the submissions made before the authorities below and strongly supported the impugned order passed by the ld. CIT(A).

We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed that the claim of the assessee was that the loans were raised for making the investment in the partnership firm and from the said firm, the assessee earned the interest income, therefore, the interest paid on the loans raised for making the investment in the partnership firm was allowable against the interest income earned. However, in the present case, it is not clear from the material available on the record as to whether the assessee made the investment in the partnership firm from the interest bearing loans on which the interest of Rs.5,58,089/- was paid and that there was a direct nexus between the investment made in the partnership firm and 21 2347 & 2349/Del/2012 CO Nos. 250, 255 & 256/Del/2012 Ranjana & Amita Garg interest bearing loans raised. We, therefore, in the absence of clear facts available on record, deem it appropriate to set aside this issue also to the fie of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

In the result, appeals of the department and the Cross Objections of the assessee are allowed for statistical purposes. (Order Pronounced in the Court on 18/04/2016)