TMI Blog2016 (5) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... if the orders of the authorities below are set-aside and issue is restored to the file of the AO for de-novo determination after considering the evidences and explanation submitted by the assessee in his defense on merits. Needless to say proper and adequate opportunity of being heard will be provided by the AO to the assessee in accordance with the principles of natural justice in accordance with law. We order accordingly. - Decided in favour of assessee for statistical purposes. - I .T.A. No. 4919/Mum/2014 - - - Dated:- 21-4-2016 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Shri Behari Lal For The Revenue : Shri Anu Krishna Aggarwal,Addl. CIT ORDER PER RAMIT KOCHAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed before the Assessing Officer. 2) The order passed by the Hon ble CIT is devoid of any merit, arbitrary, uncalled for and bad in law, the appellant be given such relief or relief s as prayed for. 3. The brief facts of the case are that the assessee is an individual and derives income from trading and investment in shares and securities. 4.During the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, it was observed by the AO that the assessee has shown fixed assets which inter-alia comprised of Residential property at Juhu and residential property at Kripanidhi , which were not used for the purpose of business of the assessee. The flat at Juhu is self occupied and flat at Kripanidhi was va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he made submissions before the AO that the assessee got the possession of the flat in June 2008 and the said flat was not in habitable condition and the furniture work was going on in the said flat which was incomplete till 31.03.2010 and also continued up-to 31.03.2011. The flat was purchased with intention to gift to his son for his residence. Since the flat was not in habitable condition and furniture work was going on, his son could not occupy the same. The assessee submitted that the AO has stated in the assessment order that the assessee has not submitted any reply and the AO treated the said flat at Kripanidhi which was vacant during the year as deemed let out property and computed 8.5% of the book value of the vacant proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not made any application under Rule 46A of the Income Tax Rules, 1962 for admission of any additional evidence and order of the AO was confirmed/sustained by the CIT(A) vide orders dated 23.04.2014. 6. Aggrieved by the orders dated 23.04.2014 of the CIT(A), the assessee filed an appeal before the Tribunal. 7. The ld counsel for the assessee submitted that the assessee own s one residential flat at Juhu which is self occupied. The assessee purchased in June 2008 another residential flat at Kripanidhi at JVPD Scheme,Mumbai which was not habitable . The said new residential flat at Kripanidhi was lying vacant during the year under appeal and the furniture and fixture, civil works, electrical fitting, plumbing work, int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Mum/2009 and decision of Tribunal, Amritsar in the case of Shyam Sunder Behl v. ACIT 99 TTJ (Amr.) 1147. The ld. Counsel submitted that municipal rateable value of the flat at Kripanidhi is ₹ 59,460/- per month (Rs.7,13,520/- per annum) which should , without prejudice, be adopted as ALV of the flat and standard deduction @30% be allowed to the assessee from the above figure, the said computation of rateable value by Municipal Corporation of the said flat is placed at page 45 paper book filed with the Tribunal.The assessee submitted that this was also brought to the notice of the CIT(A). The assessee relied upon the decision of DCIT v. Shripal S Morakhia in ITA no. 4620 4621 /Mum/1996 ; (2006) 7 SOT 0609(Mum.Trib.). 8. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letting out the same. Whether the flat was habitable or not during the impugned assessment year is a question of fact and can be determined only after appreciation of evidences for which the authorities below may need to make necessary enquiries to appreciate the entire factual matrix. The computation of ALV is to be based on the provisions of Section 23 of the Act and Hon ble Bombay High Court in the case of CIT v. Tip Top Typography (2014) 48 taxmann.com 191 (Bom.) has laid down the guidelines with respect there-to. In our considered view interest of justice will be best served if the orders of the authorities below are set-aside and issue is restored to the file of the AO for de-novo determination after considering the evidences and exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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