MEENA AGARWAL, MUMBAI v. DCIT 24(2), MUMBAI

ITA 1698/MUM/2016 | 2011-2012
Pronouncement Date: 27-11-2017 | Result: Allowed

Appeal Details

RSA Number 169819914 RSA 2016
Assessee PAN ADUPA8824D
Bench Mumbai
Appeal Number ITA 1698/MUM/2016
Duration Of Justice 1 year(s) 8 month(s) 5 day(s)
Appellant MEENA AGARWAL, MUMBAI
Respondent DCIT 24(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 27-11-2017
Assessment Year 2011-2012
Appeal Filed On 22-03-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI BEFORE SHRI P K BANSAL VICE PRESIDENT & SHRI AMARJIT SINGH JUDICIAL MEMBER ITA NO.1698/MUM/2016 ASSESSMENT YEAR : 2011-12 MEENA AGARWAL 1004 ORCHID TOWER FILM CITY ROAD MALAD (E) MUMBAI 400 097. PAN ADUPA8824D VS. DCIT 24(2) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M SUBRAMANIAN RESPONDENT BY : SHRI M C OMI NINGSHAM DATE OF HEARING : 14. 11 .2017 DATE OF PRONOUNCEMENT : 27 . 11 .2017 O R D E R PER P K BANSAL VICE-PRESIDENT: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-41 MUMBAI DATED 08.02.2016 FOR A.Y.2011-1 2. 2. GROUND NO.1 RELATES TO THE ADDITION OF RS4 52 66 7/- AS INCOME FROM HOUSE PROPERTY FOR FLAT NO.1202 WHICH WAS SELF OCC UPIED. THE FACTS RELATING TO THIS ADDITION ARE THAT THE ASSESSING OFFICER NOT ED FROM THE BALANCE SHEET OF THE ASSESSEE THAT SHE WAS OWNER OF ONE OFFICE PROPE RTY AND THREE FLATS BUT HAD NOT DECLARED ANY INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. ITA NO.1698/MUM/2016 MEENA AGARWAL 2 ON BEING QUESTIONED THE ASSESSEE SUBMITTED THAT SH E IS A CO-OWNER IN TWO RESIDENTIAL PROPERTIES AND NOT AN ABSOLUTE AND SING LE OWNER OF ANY OF THE TWO RESIDENTIAL FLATS I.E. FLAT NOS. 1202 AND 1003. SH E FURTHER SUBMITTED THAT THE PROPERTY SHOWN AT ` 38 78 526/- WAS UNDER CONSTRUCTION. SHE HOWEVER DID NOT MENTION ANYTHING ABOUT THE OFFICE PREMISES. TH E ASSESSING OFFICER TREATED FLAT NO.1003 AS SOP. HE FURTHER NOTED THAT THE VALUE OF THE DELHI OFFICE PREMISES IS SHOWN AT ` 49 15 814/- AND THE VALUE OF FLAT NO.1202 IS SHOWN AT ` 31.67 545/-. HE THEREFORE COMPUTED THE ANNUAL L ETTING VALUE (ALV) OF THESE PROPERTIES U/S 23(1) AT ` 6 46 668/- BEING 8% OF THE CAPITAL VALUE OF ` 80 83 359/- AND AFTER ALLOWING DEDUCTION U/S. 24(A ) THE HOUSE PROPERTY INCOME WAS DETERMINED AT ` 4 52 667/-. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). 3. BEFORE THE CIT(A) THE ASSESSEE REITERATED THE SU BMISSIONS MADE BEFORE THE ASSESSING OFFICER. SHE STATED THAT HER HUSBAND SHRI RAJENDRA KUMAR AGARWAL AND HIS BROTHER USED TO RESIDE IN FLAT NOS . 1201 AND 1202 WHICH WAS COMBINED INTO A SINGLE FLAT. SUBSEQUENTLY HER HUSBAND AND HIS BROTHER BOUGHT TWO MORE FLATS I.E. 1003 AND 1004 WHICH WER E ALSO COMBINED INTO A SINGLE FLAT BASED ON FAMILY ARRANGEMENT AND THOUGH THE ASSESSEE IS THE CO- OWNER OF FLAT NO.1202 AND 1003 FOR ALL PRACTICAL P URPOSES SHE RESIDES IN THE JOINED FLAT NO.1003 AND 1004 AND THEREFORE THE AL V OF HE SAID FLAT WILL BE TAKEN AT NIL. FURTHER AS PER THE FAMILY ARRANGEME NT SHE DOES NOT OWN THE ITA NO.1698/MUM/2016 MEENA AGARWAL 3 SINGLE JOINT FLAT NOS.1201 AND 1202 SO THE PROVISIO N OF SECTION 23(4) WOULD NOT APPLY ON THE SAID FLAT. IN RESPECT OF COMMERC IAL PROPERTY IT WAS SUBMITTED THAT IT WAS NOT A RESIDENTIAL PROPERTY TH EREFORE NOT COVERED U/S.23(2) AND NOT INCLUDED IN SECTION 23(4). THUS IT CANNOT BE HELD AS DEEMED TO BE LET OUT. 4. AFTER HEARING THE SUBMISSIONS FROM BOTH THE PART IES AND GOING THROUGH THE PROVISIONS OF SECTION 23(2) WE NOTED THAT IN R ESPECT OF THE COMMERCIAL PROPERTY AT DELHI OFFICE NO ALV CAN BE COMPUTED U/S . 23 OF THE I T ACT AS SECTION23(4) REFERS TO THE PROPERTY AS GIVEN U/S. 2 3(2). SECTION 23(2) RELATES TO TAXATION OF HOUSE OR PART OF HOUSE; OFFICE PROPE RTY CANNOT BE SAID TO BE A HOUSE. THEREFORE SO FAR AS THE ESTIMATION OF INCO ME IN RESPECT OF DELHI OFFICE IS CONCERNED WE DELETE THE SAME. 5. NOW COMING TO THE DETERMINATION OF INCOME FROM HOUSE PROPERTY IN RESPECT OF RESIDENTIAL FLAT NO.1202. WE NOTED THAT THE ASSESSEE HAS CATEGORICALLY STATED THAT TWO FLATS OWNED BY HER HA VE BEEN CONVERTED INTO A SINGLE JOINT FLAT. SIMILAR THE OTHER TWO FLATS OWN ED BY HER HUSBAND AND HIS BROTHER I.E. FLAT NO.1003 AND 1004 HAVE ALSO BEEN C OMBINED INTO A SINGLE FLAT AS PER THE FAMILY ARRANGEMENT AND SINCE BOTH BROTHE RS WERE CO-OWNERS THE ASSESSEE WAS PUTTING UP IN FLAT NO 1003 AND 1004 WH ILE HER HUSBANDS BROTHER WAS PUTTING UP AT FLAT NOS.1201 AND 1202 AL SO COMBINED INTO A SINGLE FLAT. THEREFORE WE ARE OF THE VIEW THAT FOR ALL P URPOSES BOTH THE FLATS HAS TO ITA NO.1698/MUM/2016 MEENA AGARWAL 4 BE TREATED AS A SINGLE HOUSE. THE SECTION DOES NOT TALK OF THE VALUE OF EACH FLAT BUT OF A HOUSE OR PART OF A HOUSE. HOUSE HAS NOT BEEN DEFINED U/S. 23 OF THE IT ACT BUT A HOUSE IS WE FEEL MEANS A BUILDING FOR HUMAN HABITATION ESPECIALLY ONE I.E. HIRED IN BY A FAMILY OR A SIMIL AR GROUP OF PEOPLE AND CONSISTS OF A GROUND FLOOR AND ONE OR MORE UPPER ST OREY. IT IS NOT DENIED THAT BOTH THE FLATS CONVERTED INTO A SINGLE ONE ARE NOT BEING USED BY THE ASSESSEE OR HER FAMILY FOR THEIR HABITATION. IN VIEW OF THI S FACT WE ARE OF THE VIEW THAT NO ALV HAS TO BE COMPUTED U/S. 23(2) OF THE I.T. AC T IN RESPECT OF THE SAID FLAT. WE THEREFORE SET ASIDE THE ORDER OF THE CI T(A) AND DELETE THE ADDITION OF ` 4 52 667/- ADDED UNDER THE HEAD INCOME FROM HOUSE PROPERTY 5. GROUND NO.2 RELATES TO DISALLOWANCE OF CREDIT FO R SELF ASSESSMENT TAX OF ` 1 07 630/- PAID BY THE ASSESSEE ON 26.07.2011. AF TER HEARING THE SUBMISSIONS OF BOTH THE PARTIES WE DIRECT THE ASSE SSING OFFICER TO GIVE CREDIT TO THE ASSESSEE IN RESPECT OF THE SELF ASSESSMENT T AX PAID BY THE ASSESSEE AMOUNTING TO ` 1 07 630/-. NEEDLESS TO SAY THAT THE ASSESSING OF FICER WILL DULY VERIFY WHETHER THE ASSESSEE HAS PAID THE SAID TAX AND THE ASSESSEE ALSO IS DIRECTED TO PRODUCE NECESSARY EVIDENCE TO PROVE THE PAYMENT OF THE SELF ASSESSMENT TAX AS CLAIMED BY HER. THIS GROUND IS AL LOWED FOR STATISTICAL PURPOSES. ITA NO.1698/MUM/2016 MEENA AGARWAL 5 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH DAY OF NOVEMBER 2017. SD/- SD/- (AMARJIT SINGH) (P K BANSAL) JUDICIAL MEMBER VICE-PRESIDENT MUMBAI; DATED: 27 TH NOVEMBER 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT. 2. THE RESPONDENT. 3. T HE CIT(A) MUMBAI 4. THE CIT 5. DR H BENCH ITAT MUMBAI BY ORDER #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI