VIRENDRA JAIKUMAR JAIN,MUMBAI vs. DCIT CEN CIR 39, MUMBAI

In the captioned appeals, the solitary common issue relates to the determination of Annual Letting Value (ALV) of the property owned by the assessee at Central Garden Complex, Chunabhatti.

The learned representative for the assessee while explaining the background of the dispute pointed out that the assessee was owning a flat at Central Garden Complex, Chunabhatti which was vacant during the year and accordingly, the ALV was offered on the basis of the municipal ratable value of Rs. 3,86,376/-. The Assessing Officer, however, determined the ALV at Rs.68,36,502/- which was purported to be based on the market value. In the appellate proceedings before the CIT(A), assessee succeeded in its plea that the ALV is to be based on the municipal ratable value. So however, the CIT(A) considered the municipal ratable value of Rs.3,86,376/- as the base and thereafter enhanced it to Rs.4,63,651/- on the ground that the municipal authorities had not revised such ratable value since 2006-07. Accordingly, the CIT(A) directed the Assessing Officer to adopt the ALV of the said flat at Rs.4,63,651/- as against Rs.68,36,502/- considered in the assessment order.

In this background, the assessee is in appeal challenging the enhancement of the municipal ratable value to Rs.4,63,651/- as against Rs. 3,86,376/- for the purpose of determining the ALV whereas the Revenue is in appeal contending that the ALV be determined on the basis of the market value as determined by the Assessing Officer at Rs.68,36,502/-.

In the above background, the learned representative pointed out that in the immediately preceding Assessment Year of 2009-10 similar issue was involved in the assessee’s own case and vide order in dated 12.8.2015, the matter has been restored back to the file of Assessing Officer for de novo adjudication. The learned representative, however, made a detailed submission pointing out that the Tribunal in its order dated 12.8.2015 (supra) has unjustly departed from various decisions of the Tribunal in the case of other family members of the assessee wherein the stand of the assessee that ALV is to be determined on the basis of the municipal ratable value has been upheld. The learned representative has enumerated the following decisions, which are in the case of the other family members of the assessee (out of which some of them were before the bench), and it is also pointed out that some of the decisions relate to the flats owned at similar premises, i.e., Central Garden Complex, Chunabhatti. The list of such decisions is as under :-

The learned representative for the assessee pointed out that some of the said decisions were relied upon before the coordinate bench for the Assessment Year 2009-10 but the same have been distinguished and one of the points of distinction noted by the bench is that in the case of the assessee the Assessing Officer was guided by the report of the Inspector whereas in the case of other family members, there was no such report of the Inspector. In this context, the learned representative has taken us through the decision in the case of some of the family members, viz. Smt. Laxmi Jain (ITA No. 2118/M/2012 dated 26.11.2014 (supra) to point out that in the said case also the Assessing Officer had relied upon a similar report of the Inspector, which was relied upon in the case of assessee. Inspite of that, the Tribunal in the case of Smt. Laxmi Jain (supra) held that the ALV is to be determined on the basis of the municipal ratable value. In this manner, the learned representative pointed out that the Tribunal vide its order dated 12.8.2015 (supra) for Assessment Year 2009-10 has wrongly remanded the matter back to the file of Assessing Officer instead of deciding the issue based on municipal ratable value by noticing a point of distinction which was, in fact, not prevalent.

The ld. DR, on the other hand, vehemently pointed out that the decision of the Tribunal in assessee’s own case ought to prevail.

Having considered the rival stands, in our considered opinion, it would be in the fitness of things that the matter be remanded back to the file of Assessing Officer for a de novo adjudication on the issue of determination of ALV primarily for the reason that for the immediately

In the result, order of the CIT(A) is set-aside and matter is restored to the file of Assessing Officer to decide afresh as per law.

Resultantly, appeals of the assessee as well as that of the Revenue are treated as allowed for statistical purposes, as above.