Jyantibhai M. Patel, Ahmedabad v. The ACIT.,Circle-7,, Ahmedabad

ITA 4503/AHD/2007 | 2005-2006
Pronouncement Date: 01-09-2010 | Result: Allowed

Appeal Details

RSA Number 450320514 RSA 2007
Assessee PAN ALRPS6235P
Bench Ahmedabad
Appeal Number ITA 4503/AHD/2007
Duration Of Justice 2 year(s) 8 month(s) 7 day(s)
Appellant Jyantibhai M. Patel, Ahmedabad
Respondent The ACIT.,Circle-7,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 01-09-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 01-09-2010
Date Of Final Hearing 20-08-2010
Next Hearing Date 20-08-2010
Assessment Year 2005-2006
Appeal Filed On 24-12-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND D. C. AGRAWAL AM) ITA NO.4504/AHD/2007 A. Y.: 2005-06 SHRI ASHISH N. SOPARKAR 13B NO.246 SATYAGRAH CHAVNI SATELLITE ROAD AHMEDABAD VS THE A. C. I. T. CIRCLE-7 AAYAKAR BHAVAN AHMEDABAD PA NO. ALRPS 6235 P (APPELLANT) (RESPONDENT) ITA NO.4503/AHD/2007 A.Y.: 2005-06 SHRI JAYANTIBHAI M. PATEL LANE 18 B. NO. 359 SATYAGRAH CHAVNI SATELLITE ROAD AHMEDABAD VS THE A. C. I. T. CIRCLE-7 AAYAKAR BHAVAN AHMEDABAD PA NO. AEHPP 7163 E (APPELLANT) (RESPONDENT) APPELLANT BY SMT. URVASHI SHODHAN AR ASSESSEE BY SHRI BHUBNESH KULSHRESTHA DR O R D E R PER BHAVNESH SAINI: BOTH THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST DIFFERENT ORDERS OF THE LEARNE D CIT(A)-XI AHMEDABAD DATED 25-10-2006 FOR ASSESSMENT YEAR 2005-06 CHALL ENGING THE ADDITION OF RS.4 71 935 ON ACCOUNT OF PROPERTY TAX.. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH TH E PARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERE D THE MATERIAL ON RECORD. 3. THE LEARNED COUNSEL FOR THE ASSESSEE FILED PAPER BOOK IN THE CASE OF ASSESSEE SHRI ASHISH N. SOPARKAR AND SUBMITTED T HAT THE FACTS ARE IDENTICAL IN BOTH THE APPEALS AND MAINLY ARGUED IN THIS CASE. ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 2 4. THE GROUNDS OF APPEAL ARE SAME IN BOTH THE APPEA LS. THE GROUNDS OF APPEAL RAISED IN ITA NO.4504/AHD/207 IN THE CASE OF ASHISH N. SOPARKAR READ AS UNDER: 1. THE LEARNED CIT(A) HAS GROSSLY ERRED IN LAW AND ION FACTS IN CONFIRMING ACTION OF THE AO IN DISALLOWING AMOUNT OF RS.4 71 935/- ON ACCOUNT OF PAYMENT OF PROPERTY TAX. BOTH THE LOWER AUTHORITIES HAVE NOT APPRECIATED THE FACT THAT AS PER THE LEASE AGREEMEN T THE PROPERTY TAX WAS TO BE BORN BY THE LESSOR AND HENCE WAS CLAIMED AS A DEDUCTION U/S 23 OF THE ACT. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED CI T(A) OUGHT TO HAVE ALLOWED THE SAID EXPENSES TAKING INTO CONSIDERATION THE TAX BILL AND THE CERTIFICATE ISSU ED BY THE SOCIETY. 2. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN CONSIDERING VARIOUS EXPLANATIONS SUBMISSI ONS AND EVIDENCES PLACED ON RECORD BY THE APPELLANT IN ITS PROPER PERSPECTIVE AND FURTHER ERRED IN HOLDING THA T THE RECEIPT OF THE PAYMENT OF THE PROPERTY8 TAX SHOULD HAVE BEEN IN THE NAME OF THE APPELLANT I.E. THE LESSEE. THIS ACTION OF BOTH THE LOWER AUTHORITIES IS IN CLEAR BR EACH OF PRINCIPLE OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 3. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE LEVY OF INTEREST UNDER SECTION 234A 234B AND 234C OF THE ACT. 5. BRIEFLY THE FACTS OF THE CASE ARE THAT WORKING OF THE INCOME FROM HOUSE PROPERTY HAS BEEN GIVEN BY THE AO AT PARA 4 O F THE ASSESSMENT ORDER. IT WAS NOTICED BY THE AO THAT THE ASSESSEE H AS CLAIMED EXCESS DEDUCTION OF RS.4 71 935/- IN RESPECT OF PROPERTY T AX. ACCORDING TO THE AO THERE WAS NO DISTINCT FACT OF LIABILITY OF PROPE RTY TAX TO BE BORNE BY THE ASSESSEE. IT APPEARS THAT IN THE RENT ACCOUNT ALSO NO SUCH EXPENDITURE HAS BEEN DEBITED BY THE ASSESSEE. THEREFORE AFTER DISCUSSING THE ISSUE IN THE ASSESSMENT ORDER THE AO HAS DISALLOWED ASSESSE ES CLAIM OF ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 3 DEDUCTION U/S 23 OF THE IT ACT AMOUNTING TO RS.4 71 936/- IN RESPECT OF PROPERTY TAX AND ADDED TO THE TOTAL INCOME OF THE A SSESSEE. 6. IT WAS CONTENDED BEFORE THE LEARNED CIT(A) THAT WHILE MAKING THE ABOVE ADDITION THE AO HAS NOT APPRECIATED THE FACT S OF THE CASE. IT WAS SUBMITTED THAT THE PROPERTY IN QUESTION IS DEVELOPE D BY TATA GROUP OF COMPANIES. THE DEVELOPER COMPANY I.E. THDC LTD. HAV E COLLECTED RS.6 74 193/- FROM THE ASSESSEE TOWARDS REPAIRS AND MAINTENANCE CHARGES AS WELL AS PROPERTY TAX. IN SUPPORT OF THE CONTENTION THE ASSESSEE HAS FILED COPY OF THE CERTIFICATE ISSUED B Y THDC LTD. DATED 08-06-2006 BEFORE THE LEARNED CIT(A) SHOWING THE BI FURCATION OF THE AMOUNT PAID BY THE ASSESSEE. IT WAS ALSO CONTENDED THAT THE AMOUNT OF RS.6 74 193/- IS INCLUSIVE OF THE PROPERTY TAX OF R S.4 34 565/- WHICH IS SAID TO HAVE BEEN PAID BY THE ABOVE COMPANY ON BEHA LF OF THE ASSESSEE. IT WAS CONTENDED THAT THE SAID AMOUNT WAS PAID BY T HE ASSESSEE AS PER THE RENT AGREEMENT WITH THE LESSEE WHICH CLEARLY IN DICATED THAT PROPERTY TAX IS TO BE BORNE BY THE LESSOR. IT WAS SUBMITTED THAT THE PROPERTY TAX PAID BY THE ASSESSEE SHOULD BE ALLOWED AS DEDUCTION U/S 23 OF THE IT ACT WHILE DETERMINING THE ANNUAL VALUE OF THE RENTED PR OPERTY AND DELETION OF THE ADDITION WAS PRAYED FOR. 7. THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS O F THE ASSESSEE AND THE DETAILS PRODUCED BEFORE HIM DISMISSED THE A PPEAL OF THE ASSESSEE. HIS FINDINGS IN PARA 2.2 TO 3 ARE REPRODU CED AS UNDER: 2.2 THE SUBMISSIONS OF THE A. R. OF THE APPELLANT HAVE BEEN PERUSED. THE DETAILS PRODUCED BEFORE ME B Y THE A. R. OF THE APPELLANT AND THE OBSERVATIONS OF THE ASS ESSING OFFICER IN THE ASSESSMENT ORDER HAVE ALSO BEEN PERU SED. 2.2.1 THE MUNICIPAL TAXES RECEIPT IS NOT FOUND IN THE NAME OF THE APPELLANT HOWEVER THE APPELLANT HAD C LAIMED HAT THE SAID MUNICIPAL TAXES ARE SUPPOSED TO HAVE B EEN PAID TO THE DEVELOPER FOR ONWARD PAYMENT TO MUNICIPAL CO RPORATION. ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 4 THEREFORE THE A. O. WAS DIRECTED BY MY PREDECESSOR TO CONDUCT NECESSARY ENQUIRIES WITH THE DEVELOPER I.E. TDHC AND WITH J. P. MORGAN SERVICES INDIA (P) LTD. WHO HAPPE NED TO BE A LESSEE. IN FACT THE RECEIPT APPEARS TO HAVE BEEN FO UND IN THE NAME OF M/S. NATIONAL EKCO RADIO & ENGG. CO. LTD. AND NOT IN THE NAME OF THE APPELLANT. IT IS SEEN THAT THE A SSESSING OFFICER VIDE HIS LETTER DATED 23-8.-07 SUBMITTED TH AT THE LETTER SENT TO THE THDC WAS RETURNED BY THE POSTAL AUTHORI TIES WITH THE REMARKS PARTY HAS LEFT PREMISES WHERE AS THE PARTY J. P. MORGAN SERVICES INDIA PVT. LTD. HAS STATED THAT IT HAS NOT PAID ANY MUNICIPAL TAX ON BEHALF OF T HE APPELLANT DURIN G THE F. Y. 2004-05. 2.2.2 FURTHER IT IS SEEN THAT THE APPELLANT HAS N OT PRODUCED ANY DOCUMENTS FOR HAVING PAID MUNICIPAL TA XES BY IT. IT IS PERTINENT TO NOTE THAT WHO SO EVER PAYS M UNICIPAL TAXES TOWARDS PROPERTY THE RECEIPT IS NECESSARILY SUPPOS ED TO HAVE BEEN ISSUED IN THE NAME OF THE OWNER OF THE PROPERT Y. THEREFORE RECEIPT ISSUED TOWARDS PAYMENT OF MUNICIP AL TAXES SHOULD HAVE BEEN IN THE NAME OF THE APPELLANT I.E. OWNER OR BY THE LESSEE OR BY THE DEVELOPER. THEREFORE IN ABSEN CE OF THE SAID DOCUMENT TOWARDS PAYMENT OF MUNICIPAL TAXES I T APPEARS TO ME THAT THE ASSESSING OFFICER HAS RIGHLY 8 DISALLOWED THE APPELLANTS CLAIM. THEREFORE THIS G ROUND OF APPEAL IS DISMISSED. 3. IN THE RESULT THE APPEAL IS DISMISSED. 8. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED HAT PREMISES IN QUESTION IS MANAGED BY THDC LTD. THE SOCIETY PASSED THE PAYS THE PROPERTY TAX ON BEHALF OF THE MEMBERS. THE MUNICIPA L CORPORATION ISSUED CONSOLIDATED TAX BILL IN THE NAME OF THE SOCIETY. T HUS THE SOCIETY COLLECTED TAX FROM ALL THE MEMBERS AND MADE CONSOLI DATED PAYMENT TO THE MUNICIPAL CORPORATION. HENCE THE TAX BILL AND THE RECEIPT IS ALSO CONSOLIDATED ONE. THE SOCIETY HAS GIVEN CERTIFICATE TO EACH MEMBER TO THE EFFECT THAT PROPERTY TAX IS PAID BY THE SOCIETY. TH E ASSESSEE HAS REFERRED TO PB -3 CERTIFICATED DATED 08-06-2006 FILED BEFORE THE LEARNED CIT(A). SHE HAS REFERRED TO PB-4 TO PB-6 WHICH ARE THE CONS OLIDATED RECEIPTS OF PAYMENT OF THE TAXES AND ALSO REFERRED TO PB- 9 WHI CH WAS THE REPLY FILED ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 5 BEFORE THE AO. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE DOCUMENTS PRIMA FACIE PROVE THAT THE ASSESSEE PAID THE MUNICIPAL TAXES BUT THE REQUISITE INDIVIDUAL CERTIFICATE IN T HE NAME OF THE ASSESSEE COULD NOT BE PRODUCED AND THEREFORE PRAYED THAT ON E MORE CHANCE MAY BE GIVEN TO THE ASSESSEE TO PRODUCE THE MATERIAL AN D EVIDENCE TO INDICATE THAT I INDIVIDUAL CASE OF THE ASSESSEE SUCH MUNICIP AL TAXES HAS BEEN PAID THROUGH THDC LTD. AND THEREFORE PRAYED THAT REASON ABLE TIME OF SIXTY DAYS MAY BE GIVEN TO THE ASSESSEE TO FILE MATERIAL AND EVIDENCE IN THIS REGARD BEFORE THE AO. ON THE OTHER HAND THE LEARNE D DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL ON RECORD. SECTION 23 OF THE IT ACT PROVIDES HOW TO DETERMINE ANNUAL VALUE FOR THE PURPOSE OF DETERMINING INCOME FROM HOUSE PROPERTY. THE SAME READS AS UNDER: 23. (1) FOR THE PURPOSES OF SECTION 22 THE ANNUAL VALUE OF ANY PROPERTY SHALL BE DEEMED TO BE (A) THE SUM FOR WHICH THE PROPERTY MIGHT REASONAB LY 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 PROPERT Y IS LET AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR A ND OWING TO SUCH VACANCY THE ACTUAL RENT RECEIVED OR RECEIVABLE BY T HE OWNER IN RESPECT THEREOF IS LESS THAN THE SUM REFERRED TO IN CLAUSE (A) THE AMOUNT SO RECEIVED OR RECEIVABLE : PROVIDED THAT THE TAXES LEVIED BY ANY LOCAL AUTHORITY IN RESPECT OF THE PROPERTY SHALL BE DEDUCTED(IRRESPECTIVE OF THE PREV IOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH TAXES WAS INCURRED BY THE OW NER ACCORDING TO THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY HIM) IN DETERMINING THE ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 6 ANNUAL VALUE OF THE PROPERTY OF THAT PREVIOUS YEAR IN WHICH SUCH TAXES ARE ACTUALLY PAID BY HIM. EXPLANATION.FOR THE PURPOSES OF CLAUSE (B) OR CLAU SE (C) OF THIS SUB- SECTION THE AMOUNT OF ACTUAL RENT RECEIVED OR RECE IVABLE BY THE OWNER SHALL NOT INCLUDE SUBJECT TO SUCH RULES AS MAY BE MADE IN THIS BEHALF THE AMOUNT OF RENT WHICH THE OWNER CANNOT REALISE. (2) WHERE THE PROPERTY CONSISTS OF A HOUSE OR PART OF A HOUSE WHICH (A) IS IN THE OCCUPATION OF THE OWNER FOR THE PUR POSES OF HIS OWN RESIDENCE; OR (B) CANNOT ACTUALLY BE OCCUPIED BY THE OWNER BY R EASON OF THE FACT THAT OWING TO HIS EMPLOYMENT BUSINESS OR PROFESSION CAR RIED ON AT ANY OTHER PLACE HE HAS TO RESIDE AT THAT OTHER PLACE IN A BU ILDING NOT BELONGING TO HIM THE ANNUAL VALUE OF SUCH HOUSE OR PART OF THE HOU SE SHALL BE TAKEN TO BE NIL. (3) THE PROVISIONS OF SUB-SECTION (2) SHALL NOT APP LY IF (A) THE HOUSE OR PART OF THE HOUSE IS ACTUALLY LE T DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR; OR (B) ANY OTHER BENEFIT THEREFROM IS DERIVED BY THE OWNER. (4) WHERE THE PROPERTY REFERRED TO IN SUB-SECTION ( 2) CONSISTS OF MORE THAN ONE HOUSE (A) THE PROVISIONS OF THAT SUB-SECTION SHALL APPLY ONLY IN RESPECT OF ONE OF SUCH HOUSES WHICH THE ASSESSEE MAY AT HIS OPTI ON SPECIFY IN THIS BEHALF; (B) THE ANNUAL VALUE OF THE HOUSE OR HOUSES OTHE R THAN THE HOUSE IN RESPECT OF WHICH THE ASSESSEE HAS EXERCISED AN OPTI ON UNDER CLAUSE (A) SHALL BE DETERMINED UNDER SUB-SECTION (1) AS I F SUCH HOUSE OR HOUSES HAD BEEN LET.] 9.1 ACCORDING TO THE PROVISO TO SECTION 23(1) OF TH E IT ACT IN ALL CASES IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH LIABILIT IES TO PAY TAX WHATEVER AMOUNT OF MUNICIPAL TAX IS PAID BY THE OWNER TO THE MUNICIPALITY IT SHALL BE DEDUCTED IN COMPUTING THE NET ANNUAL VALUE. THER EFORE THE ISSUE RELATING TO DEDUCTION OF MUNICIPAL TAX FROM THE ANN UAL VALUE IS STATUTORILY REFERRED TO IN THE DEFINITION OF ANNUAL VALUE IN SECTION 23 OF ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 7 THE IT ACT BY PROVISO TO SUB-SECTION (1) WHICH ALL OWS SUCH DEDUCTION FULLY IN THE YEAR OF PAYMENT TO THE EXTENT ACTUALLY PAID IRRESPECTIVE OF THE FACT WHETHER THE PROPERTY IS OCCUPIED BY THE ASSESS EE OR IN CASES WHERE SUCH INCOME IS TAXABLE OR WHETHER IT IS LET OUT. TH IS POSITION OF LAW IS NOW STATUTORILY PROVIDED U/S 23 PROVISO TO SUB SECTION (1) WHICH ALLOWS DEDUCTION FOR TAXES LEVIED BY THE LOCAL AUTHORITIES TO THE EXTENT ACTUALLY PAID. THE ASSESSEE CLAIMED THE PROPERTY IN QUESTION IS MANAGED BY THDC LTD. WHO PAYS PROPERTY TAX ON BEHALF OF THE ASSESSE E AND THE MUNICIPALITY HAS ISSUED CONSOLIDATED TAX BILL IN TH E NAME OF THE SOCIETY. THEREFORE THE TAX BILL AND THE RECEIPTS ARE ISSUED CONSOLIDATED. THE SOCIETY HAS ALSO GIVEN CERTIFICATE IN FAVOUR OF THE ASSESSEES COPY OF WHICH WAS FILED BEFORE THE LEARNED CIT(A) BEARING DATED 0 8-06-2006 COPY OF WHICH IS ALSO FILED AT PAGE 3 OF THE PAPER BOOK WH ICH READS AS UNDER: 08-06-06 TO WHOMSOEVER IT MAY CONCERN THIS IS TO CONFIRM THAT MR. ASHISH SOPARKAT & MR. J . M. PATEL HAS PAID THE FOLLOWING AMOUNT FOR THE UNIT NOS. GF-017-GF-021 & 1FLR 105 AT TECHNOPOLLS KNOWLEDGE PARK MAHAKALI CAVES ROAD CH AKALA ANDHERI (E) MUMBAI (TOTAL AREA 15518.37 SFT FOR THE PERIOD 24 TH JULY04 TO 31 ST DEC04 AND AREA 17717.47 SQ. FT. FOR THE PERIOD 1 ST JAN05 31SR MARCH05) FOR THE PERIOD 24.07.04 TO 31.3.05. MR. ASHISH SOPARKAR MR. J. M. PATEL TOTAL MAINTENANCE RS.172555.00 RS.172555.00 RS.345110.00 CHARGES PROPERTY TAXES RS.434565.50 RS.434565.50 RS.869131 .00 REPAIRS & RS. 50531.00 RS. 50531.00 RS.101062.00 MAINTENANCE FUND SINKING FUND RS. 16843.50 RS. 16843.50 RS. 336 87.00 TOTAL RS.674495.00 RS.674495.00 RS.1348990.00 FOR THDC LTD. SD/-YOGESH SAKHARKAR AUTHORIZED SIGNATURE ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 8 9.2 FROM THE ABOVE FACTS IT APPEARS THAT THERE ARE SOME SUBSTANCES IN THE ARGUMENTS OF THE LEARNED COUNSEL FOR THE ASSESS EE THAT SINCE THE PROPERTY IN QUESTION IS MANAGED BY THE SOCIETY AND THE TAXES WOULD HAVE BEEN PAID CONSOLIDATED ON BEHALF OF THE MEMBERS BY THDC LTD. THEREFORE ACCORDING TO THE ASSESSEE MUNICIPAL TAXE S HAVE ALSO BEEN PAID ON BEHALF OF THE ASSESSEE. HOWEVER WE MAY NOTE FRO M THE CERTIFICATE DATED 08-06-2006 THAT THDC LTD. HAVE CONFIRMED THAT AMOUNTS HAVE BEEN PAID ON BEHALF OF BOTH THE ASSESSEE FOR THE UN ITS NO. GF -017 GF- 021 AND FIRST FLOOR 105 AT TECHNOPOLLS KNOWLEDGE PARK MAHAKALI CAVES ROAD CHAKALA ANDERI (E) MUMBAI. THE TOTAL AREA OF THE PROPERTY IS ALSO MENTIONED. IT WOULD SHOW THAT EVEN IF CONSOLID ATED MUNICIPAL RECEIPTS HAVE BEEN ISSUED BY THE MUNICIPAL AUTHORIT IES ON PAYMENT OF CONSOLIDATED AMOUNT OF THE MUNICIPAL TAXES THROUGH THE SOCIETY ON BEHALF OF ALL THE MEMBERS BUT THE MUNICIPALITY MUST HAVE MAINTAINED SEPARATE RECORD OF ALL THE UNIT HOLDERS HAVING PLOT S/UNITS ALONG WITH THEIR COVERED AREA. SINCE SPECIFIC NUMBERS/UNIT NUMBERS H AVE BEEN GIVEN TO THE ASSESSEES PROPERTY IN QUESTION OCCUPIED BY THE M THEREFORE THE ASSESSEE COULD OBTAIN A CERTIFICATE FROM THE MUNICI PAL AUTHORITY WITH RESPECT OF THEIR UNIT THAT MUNICIPAL TAXES HAVE BEE N PAID IN RESPECT OF THE ASSESSMENT YEAR UNDER APPEAL. THE ASSESSEE THEREFO RE COULD OBTAIN DETAILS / CERTIFICATE FROM THE MUNICIPALITY THAT IN THEIR CASES MUNICIPAL TAXES HAVE BEEN PAID EITHER BY THE ASSESSEE THEMSEL VES OR THROUGH THE SOCIETY. BUT THE ASSESSEE DID NOT MAKE ANY EFFORTS IN THIS REGARD. THE ASSESSEE SHALL HAVE TO PROVE THAT MUNICIPAL TAXES A RE ACTUALLY PAID ON HIS BEHALF AND THEREBY TO IDENTIFY THAT ACTUAL PAYMENT IS MADE TO THE MUNICIPAL AUTHORITY ON BEHALF OF THE ASSESSEE EITH ER BY THE ASSESSEE PERSONALLY OR THROUGH THE SOCIETY. THE LEARNED COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE MAY BE GIVEN REASONABLE TIME OF SIXTY DAYS TO OBTAIN SUCH CERTIFICATE FROM THE MUNICIPAL AUTHO RITIES TO SATISFY THE AO THAT MUNICIPAL TAXES HAVE BEEN ACTUALLY PAID BY THE ASSESSEE IN THIS ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 9 REGARD. CONSIDERING THE FACTS AND CIRCUMSTANCES NOT ED ABOVE WE ARE OF THE VIEW THAT INTEREST OF JUSTICE REQUIRES THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO PRODUCE SUFFICIENT MATE RIAL / EVIDENCE BEFORE THE AO TO PROVE THAT THE MUNICIPAL TAXES LEVIED BY THE LOCAL AUTHORITY HAVE ACTUALLY BEEN PAID BY THE ASSESSEE IN THIS REG ARD. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIRECTION TO THE ASSESSEE TO PR ODUCE SUFFICIENT MATERIAL AND EVIDENCE BEFORE THE AO TO SATISFY THE AO THAT M UNICIPAL TAXES HAVE BEEN ACTUALLY PAID BY THE ASSESSEE IN THEIR INDIVID UAL CASES MAY BE THROUGH CONSOLIDATED RECEIPT THROUGH THE SOCIETY BY ACTUALLY IDENTIFYING THE PAYMENT. THE ASSESSEE MAY OBTAIN CERTIFICATE IN THIS REGARD FROM THE LOCAL AUTHORITY AND SHALL CO-OPERATE WITH THE AO FA ILING WHICH THE AO SHALL BE FREE TO TAKE ACTION IN THIS MATTER IN ACCO RDANCE WITH LAW. THE AO SHALL PROVIDE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT THE APPEAL OF THE ASSESSEE IN THE CASE OF SHRI ASHISH N. SOPARKAR IS ALLOWED FOR STATISTICAL PURPO SES. 10. BY FOLLOWING THE ORDER IN THE CASE OF THE ASSES SEE SHRI ASHISH N. SOPARKAR WE SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW IN THE CASE OF ANOTHER ASSESSEE SHRI JAYANTIBHAI M. PATEL AND REST ORE THE ISSUE TO THE FILE OF THE AO AS IS DIRECTED IN THE CASE OF SHRI A SHISH N. SOPARKAR (SUPRA). IN THE RESULT THE APPEAL OF THE ASSESSEE IN THE CASE OF SHRI JAYANTIBHAI M. PATEL IS ALSO ALLOWED FOR STATISTICA L PURPOSES. ITA NO.4504 AND 4503/AHD/2007 SHRI ASHISH N. SOPARKAR AND SHRI JAUANTIBHAI M. SOP ARKAR VS ACIT CIR-7 AHMEDABAD 10 11. IN THE RESULT BOTH THE APPEALS OF THE DIFFEREN T ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1-09-2010 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 1-09-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR ITAT AHMEDABAD