9911796707
TMI Blog2012 (5) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7,74,287 (gross amount Rs. 11,06,124, less 30% deduction towards repairs Rs. 3,31,837) under the head 'income from house property'. b) In confirming the addition of notional income which is neither received nor accrued to the Company c) In not appreciating that as per the correspondence the rent was not actually received and the properties were not actually used by the tenant for the period from 1.7.2005 to 31.12.2005 for which the AO has computed the notional income d) In not appreciating that the provisions of section 23(1)(c) are applicable in the facts and circumstances of the case and not that of section 23(1)(a) 2. In respect of confirmation letters submitted during the course of appellate proceedings: a) In treating the confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in their surrender letter dated 28.11.2005 has mentioned that it did not require the premises and will hand over the vacant possession of the flats on expiry of the lease agreement on 1.1.2006. The assessee was thus not right in showing rent from PCS only for 3 months i.e. upto June 2005 whereas it should have shown for 9 months upto December 2005, even if the rent had actually not been received. The Ld CIT(A) has upheld the same. The Ld CIT(A) also approved the action of the A.O that this case falls u/s. 23(1)(a) and not u/s. 23(1)(c) of the Act as pleaded by the assessee since as per the A.O, it is a case where the property was never vacant. 3. The A.O observed further that the above flats were also given on rent to PCS Industries Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmation letter dated 15.6.2009 filed from PCS, the Ld CIT(A) held that it was not filed before the A.O nor any application has been filed before him under Rule 46A of the I.T. Rules for the admission of this additional evidence. 4. Before the Tribunal, the Ld. A.R. submitted that PCS vide their letter dated 28.11.2005 had surrendered the flat under their tenancy from July 2005 and had also stopped paying the rent in respect of those flats. Thus, on the basis of this intimation, the assessee had not actually received rent for the period from 1.7.2005 to 31.12.2005 in respect of the above 4 flats. The assessee had given on rent the above referred 4 flats and 15 other flats to PCS since January 2000. In all these 19 cases, the last leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the refund of deposit, since this was done for all the 17 flats collectively. In fact, the deposits were refunded on 3rd February 2006. 6. The Ld. A.R. pointed out that the above 4 flats were given on rent to PCS Technology Ltd. (formerly PCS Industries Ltd.) w.e.f. 1.1.2006. The assessee was trying to find tenants for all the 17 flats. However, it was unable to find suitable tenants for these flats. The rent with Patni Computer System Ltd. (PCS) was fixed in 2000 with 15% increment every year. It was not possible to get the last drawn rent for the flats. Hence, 4 out of the 17 flats were given on rent to PC Industries Ltd at a mutually agreed rent. They had taken only 4 out of the 17 flats and the assessee was unable to find tenants fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the assessee that the above stated 4 flats were surrendered by the tenant PCS vide their letter dated 28.11.2005 (sample letter made available at page Nos. 9 and 16 of the paper book) making it clear that they had discontinued the use of the property w.e.f. 1.7.2005 and they did not pay rent from that date upto 31st December 2005 till which date leave and license agreement was effective. The 4 flats referred to above and 15 other flats were given on rent to PCS since January 2000. The last leave and license agreement was effective upto 31st December 2005. Out of the remaining 15 flats, in respect of 13 other flats at Mumbai, PCS had issued a formal letter in respect of all the flats stating that the agreements expired on 31st Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3.2.2006. The Ld. A.R. also tried to define the word "vacant" as per the law Lexicon as un-filled, empty, unoccupied. He also tried to define the word "unoccupied" as per order 20, rule 8 of Civil Procedure Code and Article 89(2) of the Constitution of India. He submitted that word "vacant" used in the Act means that the tenants should have ceased to occupy the accommodation with the intention of not coming back to it again. The above facts indicate that the above referred 4 flats were vacant from July 2005 in a sense that the tenant was not intended to lose the premises but handing over the possession was kept in abeyance till the refund of deposits since it was to be done for all the 17 flats collectively. In other words, in our view, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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