DR. TUSHAR ARVIND SHAH, MUMBAI v. INCOME TAX OFFICER 11(3)(4), MUMBAI

ITA 6388/MUM/2008 | 2003-2004
Pronouncement Date: 07-05-2010 | Result: Allowed

Appeal Details

RSA Number 638819914 RSA 2008
Assessee PAN AAFPS3790Q
Bench Mumbai
Appeal Number ITA 6388/MUM/2008
Duration Of Justice 1 year(s) 6 month(s) 3 day(s)
Appellant DR. TUSHAR ARVIND SHAH, MUMBAI
Respondent INCOME TAX OFFICER 11(3)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 07-05-2010
Date Of Final Hearing 15-12-2009
Next Hearing Date 15-12-2009
Assessment Year 2003-2004
Appeal Filed On 03-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI. N.V. VASUDEVAN (J.M.) AND SHRI. R.K. P ANDA (A.M) ITA NO.6388/MUM/2008 ASSESSMENT YEAR: 2003-2004 DR. TUSHAR ARVIND SHAH TRUPTI M.G. RD. VILEPARLE (E) MUMBAI 400 057. PAN : AAFPS3790Q VS. INCOME TAX OFFICER 11(3)(4) AAYAKAR BHAVAN 4 TH FLR. M.K. RD. MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DHIRENDRA M. SHAH RESPONDENT BY : SHRI NAVEEN GUPTA O R D E R PER N.V. VASUDEVAN J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 01.08.2008 OF LEARNED CIT(A) CENTRAL - VII MUMBAI RELATING TO ASSESSMENT YEAR 2003-04. THE GROUNDS OF APPEAL RAISED BY T HE ASSESSEE READ AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.60 000/- MADE AS PROPERTY INCOME WHICH BE DELETED. 2. THE ASSESSING OFFICER ERRED IN ESTIMATING THE P ROPERTY INCOME OF VILE PARLE PROPERTY AND MAKING ADDITION W HICH IS ARBITRARY AND CONTRARY TO THE FACT AND IT BE DELETE D AS THE SAID PROPERTY IS SELF OCCUPIED AND HENCE NO INCOME FROM SUCH PROPERTY BE ADDED. 3. WITHOUT PREJUDICE AS PER SECTION 23 ONLY THE IN COME OF LONAVALA PROPERTY BE INCLUDED AS PER THE INCOME. 4. THE APPELLANT PRAYS THAT THE ADDITION OF RS.60 000/- BE DELETED. 2. THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE IS A DOCTOR BY PROFESSION. THE ASSESSEE HAD TWO PROPERTIES ONE AT LONAWALA AN D OTHER AT TRUPTI M.G. RD. VILE PARLE (E) MUMBAI 57 AND HE RESIDES AT VILE PARLE PROPERTY. THE PROPERTY OF LONAWALA IS ALSO SELF OCCUPIED PROPERTY . WHILE FILING THE RETURN ITA NO.6388/MUM/2008 A.Y.: 2003-2004 2 OF INCOME ASSESSEE HAD NOT DECLARED ANY INCOME UNDE R THE HEAD INCOME FROM HOUSE PROPERTY. WHEN THE ASSESSING OFFICER P OINTED OUT THAT THE ASSESSEE HAS NOT DECLARED INCOME FROM HOUSE PROPERT Y THE ASSESSEE VIDE HIS LETTER DATED 12.01.2005 SUBMITTED THAT THE PROPERT Y AT LONAWALA SHOULD BE CONSIDERED AS SELF OCCUPIED PROPERTY AND PROPERTY A T VILE PARLE WAS RECEIVED AS LEGACY FROM LATE FATHER ARVIND SHAH AND THEREFOR E THE ANNUAL LETTING VALUE OF THE SAID PROPERTY SHOULD BE TAKEN AS NIL. 3. UNDER THE ABOVE CIRCUMSTANCES THE ASSESSING OFFI CER WAS OF THE VIEW THAT U/S.23(4) OF THE ACT WHERE THE ASSESSEE OWNS MORE THAN ONE PROPERTY WHICH IS SELF OCCUPIED HE HAS AN OPTION TO SPECIFY WHICH OF THE PROPERTY HAS TO BE TREATED AS SELF OCCUPIED PROPERTY. SINCE T HE ASSESSEE DID NOT GIVE ANY OPTION THE ASSESSING OFFICER TREATED THE LONAWALA PROPERTY AS SELF OCCUPIED PROPERTY AND COMPUTED INCOME FROM HOUSE PROPERTY IN RESPECT OF VILE PARLE PROPERTY. THE INCOME FROM HOUSE PROPERTY OF VIL E PARLE PROPERTY WAS DETERMINED BY THE ASSESSING OFFICER AT RS.42 000/-. 4. BEFORE THE LEARNED CIT(A) THE ASSESSEE SUBMITTE D THAT VILE PARLE PRPERTY SHOULD BE TREATED AS SELF OCCUPIED AND NOT THE LONAWALA PROPERTY. THE LEARNED CIT(A) HOWEVER HELD THAT SINCE ASSESSE E DID NOT EXERCISE OPTION BEFORE THE ASSESSING OFFICER THE ASSESSING OFFICER WAS JUSTIFIED IN TREATING THE LONAWALA PROPERTY AS SELF OCCUPIED PROPERTY. THE LEARNED CIT(A) THUS UPHELD THE ORDER OF THE ASSESSING OFFICER AGAINST W HICH ORDER ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US THE ASSESSEE HAS FILED THE WORKING OF THE ANNUAL VALUE OF THE PROPERTY AT LONAWALA WHICH IS AS FOLLOWS: WORKING OF PROPERTY INCOME BASIS OF NET RATABLE VAL UE(LONAVALA) NET RATABLE VALUE 24 750.00 ADD: 1/9 TH OF RS.24 750/- 2 750.00 27 500.00 LESS: MUNICIPAL TAX 8 359.00 19 141.00 LESS: DEDUCTION U/S.24(4) 30% OF ANNUAL VALUE 5 742.00 PROPERTY INCOME: 13 399.00 ======== ITA NO.6388/MUM/2008 A.Y.: 2003-2004 3 6. WE HAVE HEARD THE RIVAL SUBMISSIONS WE ARE OF T HE VIEW THAT U/S.23(4) THE OPTION IS ALWAYS WITH THE ASSESSEE TO CHOOSE WHICH ONE OF THE MANY PROPERTY OWNED BY HIM SHOULD BE TREATED AS SEL F OCCUPIED PROPERTY. BEFORE THE ASSESSING OFFICER THE ASSESSEE UNDER AN ERRONEOUS BELIEF THAT INHERITED PROPERTY IS NOT SUBJECT TO CHARGE U/S.22 OF THE ACT DID NOT EXERCISE ANY OPTION. BEFORE THE CIT(A) THE ASSESSEE EXER CISED THE OPTION TO TREAT VILE PARLE PROPERTY AS SELF OCCUPIED PROPERTY. I N OUR VIEW THE CIT(A) OUGHT TO HAVE ACCEPTED THE OPTION EXERCISED BY THE ASSES SEE. WE THEREFORE DIRECT THAT THE PROPERTY AT VILE PARLE BE TREATED A S SELF OCCUPIED PROPERTY. AS FAR AS THE DETERMINATION OF INCOME FROM HOUSE PR OPERTY IN RESPECT OF LONAWALA PROPERTY IS CONCERNED WE ARE OF THE VIEW THAT THE WORKING GIVEN BY THE ASSESSEE BEFORE US NEEDS TO BE CONSIDERED BY THE ASSESSING OFFICER. WE THEREFORE SET ASIDE THE ORDER OF THE CIT(A) AN D REMAND THE ISSUE WITH REGARD TO DETERMINATION OF INCOME FROM HOUSE PROPER TY IN RESPECT OF LONAWALA PROPERTY TO THE ASSESSING OFFICER FOR THE FRESH CONSIDERATION AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSE E BEFORE DECIDING THE ISSUE. THE APPEAL OF THE ASSESSEE IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 7 TH DAY OF MAY 2010. SD/- (R.K. PANDA) (ACCOUNTANT MEMBER) SD/- (N.V. VASUDEVAN) (JUDICIAL MEMBER) MUMBAI DATED 07.05.2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- CENTRAL - VII MUMBAI 4. COMMISSIONER OF INCOME TAX CITY- CENTRAL - VII MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH E MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI ITA NO.6388/MUM/2008 A.Y.: 2003-2004 4 DATE INITIALS 1. DRAFT DICTATED ON 28.04.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 29.04.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER