Income Tax Appellate Tribunal - Mumbai
Dcit Cc 6(4), Mumbai vs Satypal Jain, Mumbai on 28 November, 2018
IN THE INCOME-TAX APPELLATE TRIBUNAL "G" BENCH MUMBAI
BEFORE SHRI PAWAN SINGH JUDICIAL MEMBER AND
SHRI N.K. PRADHAN, ACCOUNTANT MEMBER
ITA No. 3656/Mum/2017 (Assessment Year 2011-12)
ITA No. 3657/Mum/2017 (Assessment Year 2012-13)
DCIT-6(6) Satyapal Jain,
Room No. 1952, 19th C/o Harish Jain,
Floor, Air India Building, 82, Makers Chambers-III,
Nariman Point, Vs. Nariman Point,
Mumbai-400021 Mumbai- 400021
PAN: AABPJ1888Q
Appellant Respondent
ITA No. 3917/Mum/2017 (Assessment Year 2011-12)
ITA No. 3918/Mum/2017 (Assessment Year 2012-13)
Satyapal Jain, DCIT-6(6)
82, Makers Chambers-III, Room No. 1952,
Nariman Point, 19th Floor, Air India Building,
Mumbai- 400021 Vs. Nariman Point,
PAN: AABPJ1888Q Mumbai-400021
Appellant Respondent
Revenue by : Shri Chaudhary Arun Kumar Singh
(DR)
Assessee by : Shri Rakesh Mohan (AR)
Date of Hearing : 28.11.2018
Date of Pronouncement : 28.11.2018
ORDERUNDER SECTION 254(1)OF INCOME TAX ACT
PER PAWAN SINGH, JUDICIAL MEMBER;
1. This group of four appeal, out of which two appeal by revenue and two cross appeal by assessee are directed against the separate order of ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) ld. CIT(A)-37, Mumbai dated 28.02.2017 and 27.02.2017 for AY 201
-12 and 2012-13 respectively. For both the years, the Revenue as well as assessee has raised the identical grounds of appeal, therefore, all the appeals were clubbed, heard and are decided by common order for the sake of convenience. The Revenue in appeal for AY 2011-12 has raised the following grounds of appeal:
(1) On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred in holding that the rateable value of the properties as determined by principal authorities is the yardstick while failing to consider that section 23(1)(a) mandates that the annual value is team to be the sum for which the property might be expected to be let out from year to year? (2) On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred in ignoring the fact that the assessing officer had made local enquiries to determine the sum for which the properties could be expected to be let for the year as per section 23(1)(a) of the IT Act?
(3) On the facts and in the circumstances of the case and in law, learned Commissioner (Appeals) erred in ignoring the facts is brought on record by the assessing officer regarding the estimated rent for the properties for the purpose of computing income under section 23(1)(a) of the IT Act.
2. The assessee in its cross appeal has raised following ground of appeal for AY 2011-12:
(i) in the facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the annual letting value (ALV) of the premises owned by the appellant at Central Garden complex Chunna Bhatti, Mumbai and Green field, Andheri, Mumbai at Rs. 10,03,000/- instead of Rs. 7,72,608/- and Rs. 23,424/-
respectively offered by the appellant based on the Municipal ratable value of the said premises.
The learned Commissioner (Appeals) failed to appreciate that the aforesaid premises were vacant throughout the previous year and accordingly the appellant had rightly adopted the municipal ratable value for the purpose of determining income under the head "income from house property".
(ii) The order passed by learned Commissioner (Appeals) is illegal, bad in law, ultra vires and contrary to the provisions of law and facts and 2 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) is passed without application of mind in violation of principle of natural Justice..
3. At the outset of hearing, the learned AR of the assessee submits that the grounds of appeal raised by revenue as well as by assessee in cross appeal are covered by the decision of Tribunal in assessee's own case for assessment year 2010-11 in ITA No. 3831/Mum/2014 and in ITA No. 3965/Mum/2014.
4. On the other hand after going through the order up treble in assessee John case for assessment year 2010-11, the learned AR for the revenue submits that in revenues appeal he supports the order of assessing officer and so far as appeal by assessee is concerned he relied upon the order of Commissioner (Appeals). The learned DR for the revenue further submits that in principle the revenue has not accepted the order passed by honorable Tribunal and the revenue already filed appeal before the Hon'ble Bombay High Court.
5. We have considered the rival submission of the parties and have gone through the orders of authorities below. We have also gone through the factual matrix of the appeals filed by the respective parties. First we are taking the appeal filed by the revenue in ITA No. 3656/Mum/2017. We have seen that on identical grounds of appeal the Tribunal by following the decision in assessee's own case for earlier years (in AY 2006-07 in ITA No. 2719/Mum/2013, for AY 3 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) 2007-08 in ITA No. 2718/Mum/2013 and for AY 2008-09 in ITA No.2119 &2120/Mum/2012) passed the following order :
"2.1. We have considered the rival submissions and perused the material available on record. In view of the above, we are reproducing hereunder the relevant portion from the aforesaid order of the Tribunal dated 20/01/2016 for ready reference and analysis:-
"1. These two appeals by the Revenue are preferred against the very same order of the Ld. CIT(A)-41, Mumbai dated 09.1.2012 pertaining to assessment years 2008-09 & 2009-
10. As common issue is involved in both these appeals, they were heard together and disposed of by this common order for the sake of convenience.
2. In both these appeals, the Revenue has challenged the order of the Ld. CIT(A) in determining the ALV of the property as fixed by the Municipal authorities.
3. The Ld. Counsel for the assessee at the very outset submits that the issue in both these appeals has been decided in favour of the assessee for assessment years 2006-07 and 2007-08 by the Coordinate Bench of this Tribunal in assessee's own case in ITA Nos. 2719 & 2718/M/2013 dated 26.11.2015.
4. However, the Ld. Departmental Representative, referring to para-8 of the Tribunal's order submits that the findings of the Tribunal that "in the assessment order the AO has not referred to any material that annual rental value shown by the assessee is not correct" are not applicable to the assessment year under appeal. According to the Ld. DR, since the Assessing Officer pointed out certain materials in the assessment order i.e. the summons issued u/s. 131 of the I.T. Act to the society and the Inspector's enquiry report dt. 23.12.2010, which goes to show that the ALV is much more than the value fixed by Municipal authorities, the Tribunal order for the earlier years cannot be relied upon.
5. The Ld. Counsel for the assessee submits that the Inspector's report, which the DR is referring to has been considered by this Tribunal in the case of assessee's wife Smt. Laxmi Jain, in ITA No. 2118/M/2012 dated 26.11.2014 for assessment year 2009-10, where the properties are situated in the same complex and held 4 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) that the ALV as determined by the Municipal Authorities should be considered. He submits that the Assessing Officer is relying on the very same Inspector's report dated 23.12.2010 in the assessee's case also and determined the ALV.
6. We have perused the orders furnished before us in the case of the assessee and his wife and find that there is no material difference in the orders passed in earlier years and this year. No new material has come on record to suggest that the ALV of the vacant flats should not be fixed at some other value other than the Municipal value. There is no change in fact therefore, the contention of the Ld. DR that during this year there are materials to show that the ALV is more than the Municipal valuation may not be correct. We find from the Co- ordinate Bench order dated 26.11.2015 in ITA Nos. 2719/M/2013 a n d 2 71 8/ M /1 3 in as s e s ee' s o wn ca s e th at t his is s ue has b e en decided in assessee's favour holding as under: "Apart from the aforesaid contention, he submitted that on merits also, the issue of ALV of vacant flats u/s 23(1)(a) in the same very complex stands covered in favour of the assessee by series of decisions of the Tribunal in the Group/family concerns of the assessee, wherein the Hon'ble Tribunal upheld that the ALV on the vacant flat can be determined at a municipal ratable value. Not only that, now the determination of ALV as per the Municipal r a t a b l e value has been principally upheld by the Hon'ble jurisdictional High Court in the case of Tip Top Typography, reported in [2014] 368 ITR 330.
On the other hand, Ld. DR on both the issues i.e. legal as well as on merits, strongly relied upon the order of the CIT(A).
We have carefully considered the rival submissions and also perused the relevant finding in the order and also the various Tribunal orders as referred and relied upon by the Ld. Counsel. The assessee had shown Flat Nos. B-4/64, D-4/65, D-4/66 & B4 / 6 7 a t G r e e n F i e l d C o m p l e x , H e a v e n View, 4th Floor, Jogeshwari- Sat}pal Jain ITA No. 2 7 1 9 / M u m / 2 0 1 3 I T A No.2718/Mum/2013 4 Vikroli Link Road, Andheri (East), Mumbai - 400 093 as 'vacant' and has offered the annual rental value of the flats as per the Municipal ratable value. The AO rejected the assessee's contention without assigning any reason and sought for information from the society of Green Field Complex. In response the society in 5 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) its reply, furnished a copy of leave and license agreement of a flat in the same complex showing a monthly rent of R s . I7,000/- for the financial year 2010-11. The AO after r e duc i ng/i n de xi ng t h e a ve ra ge a nn ua l re nt fee s o f 10 % a n d applying the same for AY 2006-07, he worked out monthly rent of Rs. 10,550/- for each flat and determined the deemed ALV at Rs. 5,06,400/- in terms of section 23(1)(a). This action of the AO has been confirmed by the Ld. CIT(A). From the perusal of the assessment order, we find that nowhere AO has referred to any material that annual rental value shown by the assessee is not correct. ALV as per Municipal ratable value is an accepted method of valuation at least in cases of vacant premises. As pointed out by ld. counsel Tribun al in series of decisions in Group cases the Tribunal on similar facts and for similar complex has held that, where the flat has been lying vacant then the ALV u/s 23(1)(a) can be valued at Municipal ratable value. The lists of such cases are as under:-
Remark
Relation ITA No Whether
Sr. Name of Date of Particulars
with AY ITAT Vacant
No. Assessee Order of Property
Assessee Mumbai or not
Central Hon'ble ITAT held that
1 Harsh fain Nephew 2009-10 2710 of Vacant
17.7.15 Garden amount to be taxed u/s23(
2013
Complex )(a) of the Act would be
municipal ratable value
Arland Hon'ble ITAT held that
2 Jain Brother 2009-10 2709/13 17.4.15 Central Vacant amount to be taxed
Garden u/s23(1)(a) of the Act would
Complex be municipal ratable value
Central Vacant Hon'ble ITAT held that
3 Laxmi Jain Wife 2009-10 2118/12 26.11.1 Garden amount to be taxed u/s23(I
4 Complex )(a) of the Act would be
municipal ratable value
4 Rametidevi Mother 2005-06 3268/11 25.4.12 Vacant Hon'ble ITAT held that
Jain 2006-07 3269/11 amount to be taxed u/s23( I
)(a) of the Act would be
municipal ratable value
Not only in the aforesaid cases, but now Hon'ble jurisdictional High Court in the case of Tip Top 6 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) Typography, reported in 1 -20141 368 ITR 330 has upheld that Municipal ratable value can be adopted for determining the ALV u/s 23(1)(a). The Hon'ble High Court held that for disturbing the ALV or rent shown by the assessee, the AO must have cogent and satisfactory material in his possession indicating that the parties have concealed the real position. He must not make a guess work or act on conjectures and surmises. There must be definite and positive material to indicate that the parties have suppressed the prevailing rate and then only the enquiries can be made, for ascertaining the market rate. The Hon 'ble High Court has also held that, if the standard rent is fixed by the Rent Controller or Municipal Ratable value is available then same is to be accepted as an ALV. Here, it is not a case that assessee has rented out the property and the rent received or receivable is less but the flat has been lying vacant, thus, it cannot be held that municipal ratable value cannot be the basis for determination of deemed AL V. Accordingly, respectfully fb ilowing the decisions of the Tribunal and also the principle laid down by the Hon 'b/c jurisdictional High Court, we decide this issue in favour of the assessee and accordingly, ground no. 2 & 3 are treated as al/owed."
Similarly in the assessee's wife's case this Tribunal by order dated 26.11.2014 in ITA No. 2118/M/2012 for assessment year 2009-10 held as under:
" Briefly s tated relevant facts of the case are that the assessee is an individual and filed the return showing the house property income on account of couple of properties ie., (i) Gala No.311 and (ii) Central Garden Complex. In the return of income, for the purpose of computation of AL V of the properties, assessee relied on the rateable values of these properties. AO completed the assessment u/s 143(3) of the and rejected the computation of AL V of the said properties and held that a percentage of investment in t h e p r o p e r t i e s s h o u l d r e f l e c t c o r r e c t A L V A c c o r d i n g l y , h e quantified the ALVs and the cumulative ALV of the properties was taken at Rs. 1, 65, 51,6321- (Galas ALV is Rs. 3, 94,5081- and Rs.1,61,57,1241- is the ALV of other properties). Otherwise, assessee 's computation in this regard worked out at Rs. 94,181/ie., Galas rateable value is Rs.5,8801- and other properties is Rs.88,3011-. AO relied on the Inspector's report of comparable cases in this regard. Aggrieved with the same, assessee is in appeal before the first appellate authority.7
ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) During the proceedings before the first appellate authority, CIT (A) rejected the AO's method of computation of ALV of the said two properties and upheld the assessee 's rateable value.
For this, CIT(A) relied on various decisions including the judgment of the jurisdictional High Court in the case of Smitaben N Ambani vs. CWT, 323 ITR 104 wherein it was held that rateable value of the properties determined by the Municipal Authorities shall be the yard stick. Aggrieved with the decision of the CIT (A), Revenue is in appeal before the Tribun al by raising the above mentioned grounds. During the proceedings before us, Ld DR relied on various decisions to state that the ALV as determined by the Municipal Authorities is only one of the factors and same can be ignored if it does not reflect the true ALV. Ld DR relied on the order of the AO.
On the other hand, Ld Counsel for the assessee heavily relied on the order of the GIT(A) and reiterated the submissions made before the lower authorities. We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed before us. On hearing both the 3 parties and on perusal of the orders of the Revenue Authorities, we find that the CIT (A) has rightly relied on the binding judgment of the Hon 'b/c jurisdictional High Court in the case of Smitaben N Ainbani (supra). There are many other decisions from the jurisdictional High Court in the similar lines, the copies of which are placed in the paper book of the assessee. The Revenue has not demonstrated that the facts of the assessee's case are covered by the decisions cited in ground no.] of the present appeal. Considering the binding nature of the jurisdictional High Court judgment in the case of Smitaben N Amnhani (supra), we are of the opinion that the finding of the CIT (A) is an Order and it does not call for any interference on this issue. In an y case, the percentage of investment in the impugned properties is no basis ft.r arriving at the ALV of the properties. Accordingly, the grounds raised by the Revenue are dismissed.
Respectfully following the said decisions of the Co-ordinate Bench, we decide this issue in favour of the assessee and reject the ground of the Revenue.
7 . I n t h e r e s u l t , b o t h t h e a p p e a l s f i l e d b y t h e R e ve n u e a r e dismissed."
8ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) 2.2. So far as the facts and the issue is concerned, the Bench has already deliberated upon the same in earlier paras of this order that too in the case of assessee for earlier Assessment Year. The aforesaid finding and the conclusion of the Tribunal will be apply mutatis mutandis in the above Assessment Year also, because the facts, documents and the issue are identical. No contrary facts were brought to our notice by either side or more specifically the Revenue, therefore, the appeal of the Revenue deserves to be dismissed. Our view further find support from the decision for Assessment Year 2008-09 and 2009-10 in the case of assessee itself (ITA No.2119 and 2120/Mum/2012) order dated 20/01/2016. Identical ratio was laid down by the Bench of this Tribunal in the case of Anand Jaikumar Jain, in ITA No.4243 and 3830/Mum/2014, order dated 02/08/2016 "2.1. We have considered the rival submissions and perused the material available on record. We find that on identical facts, in the case of DCIT vs Laxmi Satyapal Jain (ITA No.4726 & 4831/Mum/2014) for Assessment year 2010-11, identical issue arose. The Tribunal held as under:-
"The Revenue as well as assessee is in across appeal against the impugned order dated 24/03/2014 of assessment year 2010-11of the Ld. First Appellate Authority, Mumbai. First, we shall take up appeal of the assessee, wherein, confirming the assessment order to the extent of municipal rateable value at Rs.10,12,858/- as against municipal rateable value of Rs.8,44,048/-, offered by the assessee for the premises at central garden complex has been challenged and further the annual letting value of the premises at creative industrial centre premises cooperative society at Rs.3,94,508/- against Rs.4,497/-, offered by the assessee, which is based on municipal rateable value.
2. During hearing of these appeals, Shri Anuj Kishnadwala, ld. counsel for the assessee, contended that the Tribunal, identically, decided the issue for A.Y. 2009-10. The assessee furnished the copy of the order dated 26/11/2014 (ITA No.2118/Mum/2012), wherein, the appeal of the Revenue was dismissed. This factual matrix was not controverted by Shri G. N. Makwana, ld. counsel for the assessee.9
ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) 2.1. We have considered the rival submissions and perused the material available on record. Before coming to any conclusion, we are reproducing hereunder the relevant portion from the order of the Tribunal dated 26/11/2014 for ready reference and analysis:-
This appeal filed by the Revenue on 30.3.2012 is against the order of the CIT(A)-41, Mumbai dated 9.1.2012 for the assessment year 2009- 2010.
2. In this appeal, Revenue raised the following grounds which read as under:
"1. Whether on the facts and in the circumstances of the case and in law, the Ld CIT (A) was justified in holding that rateable value as determined by the municipal authorities shall be yard stick by following the order of the Hon'ble Bombay High Court in the case of Smitaben N. Ambani vs. CWT 323 ITR 104. By doing so, he has ignored the decision in the following cases wherein it has been held that the annual letting value as determined by the municipal authorities is only one of the facts and the same can be ignored if it does not reflect the true ALV. These decisions are:
1. ITO vs. Spearhead Properties (P) Ltd. 46 SOT 208
2. Tivoli Investment and Trading company Pvt Ltd vs. ACIT 130 ITD 521
3. ITO vs. Hansa motor works 46 SOT 160
2. Whether on the facts and in the circumstances of the case and in law, the Ld CIT (A) was justified in holding that the determination of ALV of House property of Rs.1,65,51,632/- (3,94,508 + 1,61,57,124) jis not correct and same cannot be exceed Rs. 94,181/- (5,880 + 88,301) i.e., ALV as determined by municipal corporation when in the present case there are evidences to suggest that the AO23.12.2010."
3. Briefly stated relevant facts of the case are that the assessee is an individual and filed the return showing the house property income on account of couple of properties ie., (i) Gala No.311 and (ii) Central Garden Complex. In the return of income, for the purpose of computation of ALV of the properties, assessee relied on the rateable values of these properties. AO completed the assessment u/s 143(3) of the and rejected the computation of ALV of the said properties and held that a percentage of investment in the properties should reflect correct ALV. Accordingly, he quantified the ALVs and the cumulative ALV of the properties was taken at Rs. 1,65,51,632/- (Galas ALV is Rs.
3,94,508/- and Rs.1,61,57,124/- is the ALV of other properties). Otherwise, assessee's computation in this regard worked out at 10 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) Rs.94,181/- ie., Galas rateable value is Rs.5,880/- and other properties is Rs.88,301/-. AO relied on the Inspector's report of comparable cases in this regard. Aggrieved with the same, assessee is in appeal before the first appellate authority.
4. During the proceedings before the first appellate authority, CIT (A) rejected the AO's method of computation of ALV of the said two properties and upheld the assessee's rateable value. For this, CIT(A) relied on various decisions including the judgment of the jurisdictional High Court in the case of Smitaben N Ambani vs. CWT, 323 ITR 104 wherein it was held that rateable value of the properties determined by the Municipal Authorities shall be the yard stick. Aggrieved with the decision of the CIT (A), Revenue is in appeal before the Tribunal by raising the above mentioned grounds.
5. During the proceedings before us, Ld DR relied on various decisions to state that the ALV as determined by the Municipal Authorities is only one of the factors and same can be ignored if it does not reflect the true ALV. Ld DR relied on the order of the AO.
6. On the other hand, Ld Counsel for the asssessee heavily relied on the order of the CIT(A) and reiterated the submissions made before the lower authorities.
7. We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed before us. On hearing both the parties and on perusal of the orders of the Revenue Authorities, we find that the CIT (A) has rightly relied on the binding judgment of the Hon'ble jurisdictional High Court in the case of Smitaben N Ambani (supra). There are many other decisions from the jurisdictional High Court in the similar lines, the copies of which are placed in the paper book of the asssessee. The Revenue has not demonstrated that the facts of the assessee's case are covered by the decisions cited in ground no.1 of the present appeal. Considering the binding nature of the jurisdictional High Court judgment in the case of Smitaben N Ambani (supra), we are of the opinion that the finding of the CIT (A) is an Order and it does not call for any interference on this issue. In any case, the percentage of investment in the impugned properties is no basis for arriving at the ALV of the properties. Accordingly, the grounds raised by the Revenue are dismissed. 8. In the result, appeal of the Revenue is dismissed.
11ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) During assessment proceedings, it was observed by the ld. Assessing Officer that the assessee has declared net annual value of office premises no.311 at creative Industrial Centre and flats at Central Garden Complex, as per municipal rateable value at Rs.8,48,545/- and the same were shown as vacant. The ld. Assessing Officer invoked the provisions of section 23(1)(a) of the Act on the premise that the annual value of the property deemed to be the sum for which the property might reasonably be expected to let out from year to year, therefore, the municipal valuation is not binding upon the Department for determining the reasonable rent, by following the decision in ITO vs Makrupa Chemicals Pvt. Ltd. 108 ITD 95 (Bom.). The ld. Assessing Officer hold that the rateable value adopted by the assessee, as per municipal laws, is not reasonable within the meaning of section 23(1)(a) of the Act. Without going into much deliberation, we find that in the aforesaid case of the assessee itself, the Tribunal, for A.Y. 2009-10, the appeal of the Revenue was dismissed, affirming the stand of the ld. Commissioner of Income Tax (Appeals). In such a situation, one fact is oozing out that unless and until contrary facts are brought on record, no other decision is expected to be taken. It is also noted that while coming to the conclusion, event the ld. First Appellate Authority relied upon the binding decision of Hon'ble jurisdictional High Court in the case of Samitaben N Ambani vs CWT (323 ITR 104) (Bom.). Before us, also, the Revenue has not demonstrated that the facts of the case of the assessee are covered by the aforesaid decision.
xxxxxxxxxxxxxxxxxx the appeal of the assessee is allowed and that of the Revenue is dismissed."
2.3. If this issue is analyzed with the principle of consistency, it can be said that in the absence of contrary facts/material, consistency has to be maintained, for which the ratio laid down in the following cases supports our view.
i. Parshuram Pottery Works Ltd. vs ITO 106 ITR 1 (SC) ii. Security Printers 264 ITR 276(Del.) iii. CIT vs Neo Polypack Pvt. Ltd. 245 ITR 492 (Del.) iv. CWT vs Allied Finance Pvt. Ltd. 289 ITR 318 (Del.) v. Berger Paints India Ltd. vs CIT 266 ITR 99 (SC) 12 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) vi. DCIT vs United Vanaspati (275 ITR 124) (AT)(Chandigarh ITAT) vii. Union of India vs Kumudini N. Dalal 249 ITR 219 (SC) viii. Union of India vs Satish Pannalal Shah 249 ITR 221 ix. B.F.Varghese vs State of Kerala 72 ITR 726 (Ker.) x. CIT vs Narendra Doshi 254 ITR 606 (SC) xi. CIT vs Shivsagar Estate 257 ITR 59 (SC) xii. Pradip Ramanlal Seth vs UOI 204 ITR 866 (Guj.) xiii. Radhaswamy Satsang vs CIT 193 ITR 321 (SC) xiv. Aggarwal warehousing & Leasing Ltd. 257 ITR 235 (MP) The sum and substance of the aforesaid judicial pronouncements is that on the basis of principle of judicial discipline, consistency has to be followed and once in a particular year, if any view is taken, in the absence of any contrary material, no contrary view is to be taken as finality to the litigation is also a principle which has to be followed. Before us, no contrary facts or any adverse material was brought on record by the Revenue, therefore, we find merit in the argument of the ld. counsel for the assessee, because, for earlier Assessment Years vide order dated 26/11/2015 and 20/01/2016., the Tribunal on identical facts, dismissed the appeal of the Revenue, affirming the stand of the ld. First Appellate Authority, therefore, we dismiss the appeal of the Revenue.
6. Considering the decision of treble in assessee John case for assessment year 2010-11, on similar set of fact, and respectfully following the same, the appeal of the revenue for AY 2011-12 is dismissed.
ITA No 3917/Mum/2017 by assessee for AY 2011-12 13 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13)
7. We find that similar ground of appeal was raised by assessee in appeal for in assessment year 2010-11 and by following the decision of earlier years the coordinate bench of Tribunal passed the following order :
3. In the appeal of the assessee (ITA No.3965/Mum/2014), the assessee has challenged the addition of Rs.1,59,206/- increasing the municipal rateable value. The crux of the argument is that such an enhancement is contrary to the provisions of law and non-appreciation of facts in proper prospective. We find that Hon'ble jurisdiction High Court in 323 ITR 104 (supra) has thrown light on the issue. The decision in ITO vs Spearhead Properties Pvt. ltd. 46 SOT 208, in Tivoli Investment and Trading Company Pvt. Ltd. vs ACIT 130 ITR 521 and in ITO vs Hansa Motors Works. 46 SOT 160 has also discussed identical issue. The Ld. Commissioner of Income Tax (Appeal), while confirming the addition and enhancing the annual increase of 5% to the rateable value is without any basis. So far as, the observation of the Ld. Commissioner of Income Tax (Appeal) that municipal authorities have not revised the rateable value of the flats cannot be a ground to increase the same as that decision lies with the municipal authority and the Ld. Commissioner is not expected to step into the shoes of the municipal authorities. Before us, the ld. counsel for the assessee also claimed that the still the flats are not let out due to various reasons. The Hon'ble jurisdictional High Court in the case of Tip Top Typography (2014) 368 ITR 330 upheld that the ALV on the vacant flat can be determined at municipal rateable value. Thus, our view has been principally upheld by the Hon'ble HighCourt. No evidence was brought on record by the ld. Commissioner for making enhancement, thus, even otherwise, such an enhancement on presumptive basis cannot be said to be justified. Admittedly, rateable valuation depends upon so many factors like locality, nearness to park, sea, road, jhuggi cluster, nearness to educational/sports institutions, hospitals, means of transport etc, which has not been considered by the Ld. Commissioner of Income Tax (Appeal), thus, the appeal of 14 ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) the assessee is allowed and the consequent addition made by the Ld. Commissioner of Income Tax (Appeal) is deleted.
8. Considering the decision of Tribunal in assessee own case for assessment year 2010-11, on similar set of fact, and respectfully following the same, the appeal of the assessee is allowed similar observation.
ITA No. 3656/Mum/2017 by revenue for AY 2012-139. We have noted that the revenue assessee has raised identical grounds of appeal as raised in appeal for AY 2011-12. Facts of the case under consideration are identical. Considering the fact that we have already dismissed the appeal of the Revenue on identical facts and on identical grounds of appeal. Therefore, this appeal is also dismissed with similar finding.
ITA No. 3918/Mum/2017 by assessee for AY 2012-1310. We have noted that the assessee has raised identical grounds of appeal as raised in appeal for AY 2011-12. Facts of the case under consideration are identical. Considering the fact that we have already allowed the appeal of the assessee on identical facts and on identical grounds of appeal. Therefore, this appeal is also allowed with similar finding
11. In the result, both the appeal of the Revenue is dismissed and the appeal filed by assessee is allowed.
15ITA No. 3656&3657/M/2017 ITA No. 3917&3918/M/2017 Satyapal Jain (AY 2011-12 &12-13) Order pronounced in the open court on 28 /11/2018.
Sd/- Sd/-
N.K. PRADHAN PAWAN SINGH
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Date: 28.11.2018
SK
Copy of the Order forwarded to :
1. Assessee
2. Respondent
3. The concerned CIT(A)
4. The concerned CIT
5. DR "G" Bench, ITAT, Mumbai
6. Guard File
BY ORDER,
Dy./Asst. Registrar
ITAT, Mumbai
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