TMI Blog2012 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. Rohit Garg for the Respondent. ORDER A.N. Pahuja, Accountant Member This appeal filed on 02nd May, 2011 by the assessee against an order dated 25th January, 2011 of the ld. CIT (Appeals)-XVI, New Delhi, raises the following grounds :- "1. That having regard to the facts and circumstances of the case, ld. CIT (Appeals) has erred in law and on facts in confirming the action of ld. AO in making addition of Rs. 6,00,000/- on account of deemed rental value of the GK-I property on estimate basis; 2. That in any case and in any view of the matter ld. CIT (Appeals) has erred in law and on facts in not quashing the impugned assessment order passed by ld. AO and in not deleting the impugned addition made by ld. AO and the assessment order is not sustainable on various legal and factual grounds and more so as the same has been passed by recording incorrect facts and finding and without giving adequate opportunity of hearing to the assessee and without cross examination; 3. That having regard to the facts and circumstances of the case, ld. CIT (Appeals) has erred in law and on facts in not reversing the action of the ld. AO in charging interest under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) as under :- "During the course of assessment the assessee was asked to explain the status of 3 properties, i.e. Palam Vihar, GK Enclave-I and Malviya Nagar. The assessee had filed his Return of Income (ROI) from the Malviya Nagar, address. The assessee explained that Palam Vihar was let out, that GK-J, was self-occupied, and that Malviya Nagar was occupied by this brother and co-owner. However, the ld. AO disbelieved this explanation of the assessee and treated the Malviya Nagar house as self occupied, based upon the ROI address, and treated the GK Enclave-I house as unoccupied, based upon the Inspector's Report and made an addition of Rs. 4,20, 000/- (50,000/- pm estimated market rent x 12 6,00,000/-less 30% allowance). It is submitted as under: 1. That the assessee has been filling his ROI from the Malviya Nagar address since the past many years as the house belonged to his father and the assessee was originally staying there. 2. That the assessee was, during the year, actually and factually residing at the GK Enclave-I house. This is corroborated by copies of his bank statements for the year under review which bear his GK Enclave-I address, and which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the consumption of electricity by the appellant during his residential occupation of the GK-I enclave premises from July 2002 to Dec. 2010. The same was downloaded by the appellant from the website of BSES. A perusal of the same clearly shows that the appellant has paid at least Rs. 88,432/- to BSES towards consumption of electricity during the previous year under review. This fact clearly proves that the appellant was residing in the said premises during the previous year under review. It is also pertinent to point out that the A.O. presumed that the said premises were unoccupied during the period April, 2006 to March, 2007 (being the previous year under review relevant to the A. Y. 2007-08) on the basis of the inspector's report of October/November 2009 which is clearly two and a half years from the end of the previous year under review. In view of our submission on 11.01.2011 and the above information it is prayed that the addition made by the AO be deleted." 4. In the light of aforesaid submissions the ld. CIT(A) concluded as under: "2.2 I have considered the submissions made by the authorized representative of the appellant company. When an individual assessee files ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to provisions of section 23 of the Act, contended that the assessee had the right to exercise his option to choose one of the property as self-occupied property in terms of provisions of section 23(4) of the Act. Since the assessee during the course of assessment proceedings, exercised the option, treating Greater Kailash Enclave-I property as self-occupied, the AO could not thrust upon the assessee Malviya Nagar property as self-occupied. The ld. AR further submitted that in the event Greater Kailash Enclave-I property is considered as self-occupied, then the annual letting value of the property at Malviya Nagar would have to be determined in the light of decisions in the case of CIT v. Moni Kumar Subba [2011] 333 ITR 38/199 Taxman 301/10 taxmann.com 195 (Delhi) (FB); CIT v. Satya Co. Ltd. [1997] 140 CTR (Cal.) 569/[1994] 75 Taxman 193 and Mrs. Sheila Kaushish v. CIT [1981] 131 ITR 435/7 Taxman 1 (SC). On the other hand, the ld. DR while supporting the order of the AO submitted that since the assessee himself mentioned address of the Malviya Nagar in his return of income, the said property alone could be treated as self-occupied property in terms of provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual value of such house or part of the house shall be taken to be nil. (3) The provisions of sub-section (2) shall not apply if- (a) the house or part of the house is actually let 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 option, specify in this behalf; (b) the annual value of the house or houses, other than the house in respect of which the assessee has exercised an option under clause (a), shall be determined under sub-section (1) as if such house or houses had been let." 6.1 What is chargeable in terms of provisions of sec. 22 of the Act is annual value. Annual value is deemed in terms of provisions of sec.23 of the Act. In terms of clause (a) of section 23(1) of the Act, ALV has to be determined on the basis of sum for which property might be reasonably expected to let from year to year. In the case of Satya Co. Ltd. (supra), a Division Bench of the Hon'ble Calcutta High Court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
