TMI Blog2012 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee with municipal tax receipts in the name of her husband and the computation of income filed along with return of income by her husband to show that the other property was self acquired property of her husband - the A.O. has not brought any material on record to show that the property owned by assessee was ever let out - against revenue. - I.T.A. No.1805/Ahd/2010 - - - Dated:- 25-5-2012 - Shri D.K. Tyagi, Shri A. Mohan Alankamony, JJ. Department by : Shri S.P. Talati , Sr. D.R. Assessee by : Shri Jaswant C. Shah, A.R. ORDER PER : D.K. TYAGI, JUDICIAL MEMBER This is revenue s appeal against the order of ld. CIT(A)-XX, Ahmedabad dated 15.02.2010, passed in Appeal No.CIT(A)-XX/160/2009- 10. 2. The revenue has taken following grounds of appeal:- 1. The ld. CIT(A)-XX, Ahmedabad has erred in law and on facts in deleting the addition of Rs.2,70,000/- made by the AO u/s. of the Act on account of low household expenses, without properly appreciating the facts of the case and the material brought on record by the AO. 2. The ld. CIT(A)-XX, Ahmedabad has erred in law and on facts in deleting the addition of Rs.5,17,120/- made by the AO on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cases of her husband and son who are withdrawing cash for meeting the house. It is impossible to believe that the assessee would not incur any expenditure on the items mentioned above, in view of the facts stated above and the standing of the assessee in the social circle. The withdrawals made for meeting household expenses is therefore held to be on the lower side. The actual withdrawal made works out to Rs.2,500/- per family member per month which very much on the lower side. Considering the social standing of the assessee and the income earned (both exempt and taxable) by the entire family it would both fair and reasonable to at least estimate the withdrawal for household expenses at Rs.5,000/- per month for each family member. The total withdrawal for the entire family per month therefore works out to Rs.45,000/- which is very fair and reasonable. The yearly household expenses would therefore be workout to Rs.5,40,000/-. The difference of Rs.2,70,000/- would therefore be expenditure covered by s.69Cof the I.T. Act. Addition of Rs.2,70,000/- is therefore made and included in the total income computation. The addition of Rs.2,70,000/- u/s 69C is justified because it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue got shifted to the assessee to offer explanation about the source of such expenses to the satisfaction of the AO. Apparent is real onus is on the person who alleges apparent is not real. Our aforesaid view is duly supported by the decision of the Hon ble Supreme Court in the case of CIT Vs. Daulat Ram Rawatmall 87 ITR 349. Even so evidence was brought to our knowledge by the learned DR. We accordingly set aside the order of the CIT(A) and delete the addition made by the AO. In view of the above, ld. CIT(A) has rightly deleted this addition and the order passed by him is hereby upheld. This ground of Revenue is dismissed. 7. The second ground relates to addition of Rs.5,17,120/- made by the A.O. on account of property income. While making this addition the A.O. has observed as under:- On verification of the balance sheet it is seen that the assessee is in possession of a bunglow in Beverly Hill Co. Society Ltd. wherein she has invested an amount of Rs.82,08,277/-. In her reply dated 18/5/2009 she has twice replied that her residential address is Tenament No.1, Vrundavan Colony, Opp. Ghevar Complex, B/h. Rajasthan Hospital, Shahibaug, Ahmedabad. It is the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Ahmedabad had applied property income on interest percentage of 9% of the yield of the value of the property. The Income-tax Act is not recognized above method valuation of property income. 3. The Ld. Dy. CIT, Cir.12, Ahmedabad had not considered my letter 2/12/2009 for S.O. property income-as nil income. Section 23(4) of the Income-tax Act, 1961 gives option to the assessee to opt for S.O. property income for one property. The Ld. Dy. CIT, Cir.12, Ahmedabad had no right to above matter. He had not considered above options as per I.T. Act, 1961 of the right of the assessee. 4. The Ld. Dy. CIT, Cir.12, Ahmedabad has not considered of revised return of income for the AY 2007-08 for S.O. property income as Nil income with explanation letter dated 7/12/2009 by Speed Post voluntarily. The assessment order U/s. 143(3) was posted by Registered AD on 12/12/2009 and received by me on 14/12/2009. 5. The Ld. Dy. CIT, Cir.12 had erred to not considered Rent Control Act that rent cannot exceed the standard rent. Decision of Supreme Court-Smt. Sheela Kaushis Vs. CIT (131 ITR 435)(SC). 6. The Ld. Dy. CIT, Cir.12 had not considered the Municipal Tax Bill of uses of above property as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the law would be deemed to be under self-occupation. Owner s intention not to let out the property is a material factor. From the assessment order, it is evident that the AO did not examine the issue from proper perspective. Detailed facts are not recorded to show whether the property was a let out property or it was never intended to be let out and was a self-occupied property. In view of the above, it is very clear that the above property was vacant but was covered u/s 23(2) of the Act. Therefore, the addition of Rs.5,17,120/- made by the A.O. is hereby directed to be deleted. Aggrieved by this order of ld. CIT(A) now the Revenue is in appeal before us. 10. At the time of hearing ld. D.R. vehemently supporting the order of the A.O. submitted that ld. CIT(A) has failed to appreciate the fact that the assessee own two properties out of which one was used for residential purpose and the other remained vacant during the year under appeal and therefore, ALV of the property other than occupied by assessee has rightly been determined u/s 23(1)(a) read with Section 23(4)(b) of the Act by the A.O. He, therefore, prayed that order passed by ld. CIT(A) may kindly be set aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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