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2017 (6) TMI 172 - AT - Income TaxAddition on account of Notional income from House property from a house kept vacant for self occupation - Entitlement for the benefit of the section 23(2) - Held that:- In the instant case, the property was not occupied by the owner and therefore, provision of section 23(2)(a) of the Act are not applicable. The provision of section 23(2)(b) of the Act are also not applicable, as the owner of the property was not staying at other place due to his employment, business or profession carried out at other place. In the circumstances, the assessee was not allowed to avail benefit of section 23(2) of the Act, irrespective of the fact whether the property was residential or commercial Weather the assessee was running retail shop ? - Held that:- The assessee has not filed property tax return form for the year under consideration. The only evidence relied by the Revenue, is the affidavit of the assessee filed before the Municipal Corporation of Delhi. No other evidences as to the structure of the building of commercial nature, in relevant period has been brought on record. No evidences have been filed by the assessee for expenditure in respect of change of a structure from residential to commercial in the year under consideration. The affidavit was filed on 29/06/2007, which is corresponding to the assessment year 2008-09. In the affidavit, the assessee has claimed that she was running retail shop in the premises. No period has been specified since when the assessee was running shop. In our opinion, from this affidavit it cannot be presumed that the assessee was running retail shop in the year corresponding to the assessment year 2007-08 i.e. the assessment year in consideration. In absence of any other evidences to support that the property was commercial in the year under consideration, the contention of the Assessing Officer and Ld. CIT-A, cannot be accepted. Estimation of monthly rent - Held that:- CIT-(A) has not held in clear terms, whether the property was residential or commercial and he has not given any basis for estimating monthly rent of ₹ 1,80,000/-. The rent has been estimated in the ad-hoc manner, which cannot be permitted in law. In the circumstances, we feel it appropriate to restore issue to the file of the Assessing Officer to make enquiries as deemed fit and decide afresh – whether during the year, property in question was residential or commercial and determine the annual lettable value, for which the property could be let out in the year under consideration, on the basis of documentary evidences, like rent deed of surrounding area etc. It is needless to mention that assessee shall be afforded sufficient opportunity of hearing on the issue in dispute. Accordingly, the grounds No. 1.2 to 1.4 of the appeal are allowed for statistical purposes.
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