TMI Blog2016 (7) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... ultaneously note on facts that the property has been actually let out in the financial year 2006-07 as noted above. It cannot be reckoned to be in the control of the assessee to let out the property throughout necessarily. The decision of Hon’ble Andhra Pradesh High Court in the case of Vivek Jain (2011 (1) TMI 897 - Andhra Pradesh High Court ) relied upon by the revenue cannot be read in a manner that if the property remains vacant throughout the year, section 23(1)(c) do not apply at all more so when the property was let out in proceeding or subsequent year. Therefore, in the totality of the circumstances and having regard to the provisions of the Act, we are of the view that the ALV of the property at Dande Towers which remained vacant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of any appearance by the assessee in person or through Authorized Representative inspite of service of notice, we are constraint to dispose of the appeal ex-parte qua the assessee after hearing the respondent/Revenue on merits in terms of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963. 4. As per the Grounds of Appeal, the assessee is aggrieved by the order of the CIT(A) in inter-alia not interpreting the provisions of section 23(1)(c) of the Act in perspective for ascertaining the Annual Letting Value (ALV) of the properties. 5. The relevant facts concerning Ground no. 1 are that the assessee is an individual and inter-alia owns and possesses commercial properties at Prathamesh Plaza, Nashik and Dande T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully considered the orders of the authorities below and material placed on record. We observe that the Assessing Officer has denied the application of section 23(1)(c) of the Act for determination of ALV on the ground that clause (c) does not apply to a situation where the property has either not been let out at all during the previous year or even if let out, was not vacant during the whole or any part of the previous year. As per the Assessing Officer, words where the property is let cannot be read as where the property is intended to be let . For this proposition, the Assessing Officer has heavily relied upon the decision of the Hon ble Andhra Pradesh High Court in the case of Vivek Jain (supra). The Assessee ardently contested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value how determined. 23. (1) For the purposes of section 22, the annual value of any property shall be deemed to be- (a) xxxxx (b) xxxxx (c) where the property or any part of the property is let and was vacant during the whole or any part of the previous year and owing to such vacancy the actual rent received or receivable by the owner in respect thereof is less than the sum referred to in clause (a), the amount so received or receivable : Provided that the taxes levied by any local authority in respect of the property shall be deducted (irrespective of the previous year in which the liability to pay such taxes was incurred by the owner according to the method of accounting regularly employed by him) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty remains un-traversed. We are not inclined to agree with the interpretation suggested by the Revenue that property should be actually let out in relevant to previous year. This interpretation does not appear consistent with the phraseology mandated in S. 23(1)(c) which includes a situation where the property can remain vacant during the whole of the relevant previous year. Hence, both situations namely property is let and remained vacant for the whole year cannot co-exist during the financial year. We also note from a reading of another provision i.e. subsection (3) of section 23 of the Act, where the legislatures in their wisdom have used the word house is actually let . This also shows that the expression property is let cannot me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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