DCIT, CC-XXVII, Kolkata, Kolkata v. Radheshyam Saraf (HUF), Kolkata

ITA 296/KOL/2010 | 2004-2005
Pronouncement Date: 29-11-2011

Appeal Details

RSA Number 29623514 RSA 2010
Assessee PAN AADHR2616A
Bench Kolkata
Appeal Number ITA 296/KOL/2010
Duration Of Justice 1 year(s) 9 month(s) 17 day(s)
Appellant DCIT, CC-XXVII, Kolkata, Kolkata
Respondent Radheshyam Saraf (HUF), Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2011
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 29-11-2011
Assessment Year 2004-2005
Appeal Filed On 11-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BEN CH B KOLKATA [ () . .. .'# '#'# '#. .. . $% ] ]] ] [BEFORE SRI N.VIJAYAKUMARAN JM & SRI C. D. RA O AM] ' / I.T.A NOS. 296 & 297/(KOL) OF 2010 () *+/ ASSESSMENT YEARS : 2004-05 & 2006-07 D.C.I.T. CENTRAL CIRCLE-XXVII - - RADHESHYAM SARAF (HUF) KOLKATA -VERSUS- KOLKATA (PAN:AADHR 2616 A) (-. / APPELLANT ) ( /0-. /RESPONDENT) -. 1 2 $/ FOR THE APPELLANT: SHRI R.SALARPURIA /0-. 1 2 $/ FOR THE RESPONDENT: SHRI R.N.SAHA 3 1 #% /DATE OF HEARING : 25.11.2011. 4* 1 #% /DATE OF PRONOUNCEMENT : 29.11.2011. $5 / ORDER ( (( ( . .. .'# '#'# '#. .. . ) )) ) $% PER SHRI C.D.RAO AM THE ABOVE APPEALS FILED BY THE REVENUE ARE DIRECTE D AGAINST THE ORDER OF LD. C.I.T.(A)-CENTRAL-II KOLKATA DATED 19.11.2009 PERT AINING TO ASSESSMENT YEARS 2004-05 & 2006-07 RESPECTIVELY. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) HAS ERRED IN LAW AND FACTS OF THE CASE IN DELETING THE ADDITION OF RS.8 11 247/- (RS.5 10 148/- FOR A.YR.2006-07) BEING THE ENHANCED ANNUAL VALUE OF THE PROPERTY AT 21/1 J.M. AVENUE KOLKATA-06 WITHOUT A PPRECIATING THAT AO ESTIMATED THE INCOME FROM HOUSE PROPERTY @ RS.17 47 6/- PER MONTH PER FLOOR FOR THE VACANT PORTION OF THE BUILDING OWNED BY THE ASSESSEE HUF ON THE BASIS OF RENT RECEIVED FOR FIRST FLOOR OF THE SAME PROPER TY @ RS.17 476.17 PER MONTH. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND FACTS OF THE CASE IN DELETING THE ADDITION OF RS.4 40 000/- (RS.2 81 333/- FOR A.YR.2006-07) BEING THE ENHANCED ANNUAL VALUE OF THE PROPERTY AT FLAT NO.1 FAIR FIELD MUMBAI WITHOUT A PPRECIATING THE A.O. ESTIMATED THE ANNUAL RENT RECEIVABLE AT RS.5 60 000 /- ON THE BASIS OF ANOTHER FLAT OF THE ASSESSEE RENTED TO STANDARD CHARTERED B ANK AT THE SAME PLACE 2 2 INSTEAD OF ACTUAL LEASE AND LICENSE AGREEMENT RECEI VED BY THE ASSESSEE-HUF AT RS. 1 20 000/-. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND FACTS OF THE CASE IS HOLDING THAT THE ISSUES DECIDED IN THE APPELLATE PROCEEDINGS AGAINST THE EARLIER ASSESSMEN T MADE U/S 143(3) OF THE ACT CANNOT BE DISTURBED BY THE A.O. IN THE ORDER F RAMED U/S 153C OF THE ACT AGAIN. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND FACTS OF THE CASE IS DELETING THE DISALLOWANCE OF RS.8757/- MADE U/S.14A WITHOUT APPRECIATING THE INTENTION OF THE PROVISION OF SECTION 1 4A OF THE I.T. ACT. 5. THAT THE DEPARTMENT CRAVES LEAVE TO ADD MODIFY OR ALTER ANY OF THE GROUND(S) OF APPEAL AND / OR ADDUCE ADDITIONAL EVID ENCE AT THE TIME OF HEARING OF THE CASE. 3. THE GROUNDS RAISED BY THE REVENUE ARE COVERED B Y OUR EARLIERS ORDERS IN ASSESSEES OWN CASE FOR A.YR.2003-04 IN ITA NO.80/K OL/2010 DATED 8 TH OCTOBER 2010. 4. THE RELEVANT OBSERVATIONS OF THE LD. TRIBUNAL I N ITA NO.80/KOL/2010 ARE AS UNDER :- WE HAVE HEARD THE RIVAL SUBMISSIONS CONSIDERED THE MATERIAL AVAILABLE ON RECORD AND THE ORDER OF THE TRIBUNAL CITED SUPRA. WE FIND THAT THE SAME ADDITIONS WERE MADE IN THE ASSESSMENT ORDER PASSED U/S. 143(3) AND THE ISS UES HAD ALREADY BEEN DECIDED BY THE TRIBUNAL IN ITS ORDER DATED 30.4.20 10 IN ASSES SEES OWN CASE WHEREIN THE TRIBUNAL HAS HELD AS UNDER: 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD KEEPING IN VIEW OF THE FACT TH AT THE ANNUAL LETTING VALUE OF THE PROPERTY AT RS. 2 65 420/- FOR THE ENTIRE SEVEN FLO ORS AND THE ASSESSEE HAS OCCUPIED PART OF THE BUILDING FOR SELF-OCCUPATION AND PART O F THE BUILDING FOR LETTING OUT FOR COMMERCIAL PURPOSES THE LEFT-OVER PORTION WHICH IS VACANT IS SUBJECTED TO ANNUAL RENTAL VALUE PROPORTIONATE TO RS. 2 65 420/-. THERE FORE TAKING THE ANNUAL LETTING VALUE OF THIS PROPERTY AT NIL BY THE LD. CIT(A) IS NOT IN ACCORDANCE WITH LAW. THEREFORE WE SET ASIDE THE ORDERS OF THE LD. CIT(A ) ON THIS ISSUE AND DIRECT THE AO TO RECOMPUTE THE ANNUAL LETTING VALUE OF THE VACANT PORTION PROPORTIONATELY IN ACCORDANCE WITH ANNUAL RENTAL VALUE AS CERTIFIED BY THE KOLKATA MUNICIPAL CORPORATION IN RESPECT OF VACANT PORTION OF THE PRO PERTY AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS A RE SULT THIS ISSUE OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. AS REGARDING THE N OTIONAL INTEREST ON THE DEPOSIT OF RS.40 LAKHS WE FIND NO INFIRMITY IN THE ORDERS OF THE LD. CIT(A.) SINCE HE HAS FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. AS A RESULT THIS ISSUE OF THE REVENUE IS DISMISSED. AS REGARDING THE LONG TERN: CAPITAL GAINS ALSO KEEPING IN VIEW OF THE FACT THAT THE LD. DR COULD N OT CONTRADICT THE OBSERVATIONS OF THE LD. CIT(A) RECORDED AT PARA NO.4.3 OF THE ORDER WE FIND NO INFIRMITY IN THE ORDERS OF THE LD. CIT(A) ON THIS ISSUE. THEREFORE WE CONFIRM THE ORDER OF THE LD. 3 3 CIT(A) ON THIS ISSUE BY DISMISSING THE GROUND OF TH E REVENUE. IN THE RESULT THE APPEAL IN ITA NO. 266/K/08 OF THE REVENUE IS ALLOWE D IN PART FOR STATISTICAL PURPOSES. IN VIEW OF THE ABOVE AND SINCE THE SAME ADDITION M ADE IN THE ASSESSMENT ORDER PASSED U/S 143(3) AND THE INSTANT APPEAL IS ARISING OUT OF THE ORDER PASSED U/S. 153C/143(3) AGAIN AND ALSO IN THE ABSENCE OF ANY CONTROVERTING MATERIAL BROUGHT ON RECORD BY THE REVENUE TO REBUT THE FINDING OF THE LD. CIT(A) WE DO NOT FIND ANY INFIRMITY IN HIS ORDER AND THE SAME IS HEREBY UPHELD. THE APPEAL OF THE RE VENUE IS THEREFORE DISMISSED. BEING THE FACTS OF THESE TWO APPEALS ARE EXACTLY ID ENTICAL TO THAT OF THE ONE WHICH WE HAVE DECIDED RESPECTFULLY FOLLOWING THE SAME WE DI SMISS GROUND NOS. 1 TO 3 OF THE REVENUE IN BOTH THE APPEALS. 5. AS REGARDING GROUND NO.4 WHICH IS RELATING TO TH E DISALLOWANCE U/S 14A OF THE IT ACT THIS TRIBUNAL HAS CONSISTENTLY FOLLOWING THE PRACTICE THAT WHEN THE MAIN BUSINESS OF ASSESSEE IS NOTE RELATED TO THE DEALING IN SHARES THE DISALLOWANCE TO BE MADE U/S 14A OF THE ACT IS LIMITED TO 1% OF THE DIV IDEND INCOME OF ASSESSEE. SINCE IN THIS CASE THE LD. CIT(A) HAS DELETED THE ENTIRE AMO UNT DISALLOWED BY AO WE RESTRICT THE DISALLOWANCE TO 1% OF THE DIVIDEND INCOME OF THE AS SESSEE IN BOTH THE APPEALS. 6. IN THE RESULT GROUND NO.4 OF THE REVENUE IS ALLO WED IN PART IN BOTH THE APPEALS. 7. IN THE RESULT THE APPEALS OF THE REVENUE ARE ALL OWED IN PART. $5 6 7 89 #% _____________ ORDER PRONOUNCED IN THE COURT ON 29.11.2011. SD/- SD/- ( ( ( ( N.VIJAYAKUMARAN JUDICIAL MEMBER . .. .'# '#'# '#. .. . $% $% $% $% C.D.RAO ACCOUNTANT MEMBER. ( (( (#% #% #% #%) )) ) DATE: 29.11.2011. R.G.(.P.S.) 4 4 $5 1 /(( :$*;- COPY OF THE ORDER FORWARDED TO: 1. /0-. /RESPONDENT RADHESHYAM SARAF (HUF) 21/1 J.M.AVENU E KOLKATA-700006. 2 -. / APPELLANT : D.C.I.T. CENTRAL CIRCLE-XXVII KOLKATA 3. (5 /CIT (5() /CIT(A)-CENTRAL-II KOLKATA 5. DR KOLKATA BENCHES KOLKATA 0 /(/ TRUE COPY $5/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES