TMI Blog2011 (4) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... the previous year under the head Income from House Property. 2. Without prejudice to the above, the learned Commissioner of Income Tax (Appeals) erred in not appreciating, in correct perspective the submissions made before the appellant that no income could be liable under the head Income from House Property in respect of property which was vacant during the relevant previous year. 3. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the property was a single property and its annual value ought to have been determined as a single property in accordance with the provisions of section 23. 4. Without prejudice to the above, the learned Commissioner of Income Tax (Appeals) failed to appreciate that the annu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was done by way of abandoned caution and that under section 23 of the Income Tax Act, 1961(the Act) the annual value has to be determined by taking the Municipal valuation or the actual rent received whichever is higher. The AO however, did not accept the plea of the assessee. The AO also treated the income as declared by the assessee under the head income from house property under the head Income from other sources . 4. On appeal by the assessee the CIT(A) held that the income from letting of the property has to be assessed under the head income from house property. With regard to excluding the notional income declared by the assessee in respect of the vacant portion of the property, the CIT(A) held as follows: 3.3 I have consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual rent received for a part of the property has been taken as the basis. This is a better indicator of the annual letting value of the vacant portion. It cannot, therefore, be said that the income declared by way of annual letting value of the vacant portion is not according to the provisions of the Act. The AO in accepting the declaration made by the appellant was also following the provisions of the Act. In view of the above, the claim of the appellant is not acceptable and, therefore, dismissed. 5. Aggrieved by the order of the CIT(A) the assessee has field the present appeal before the Tribunal. 6. We have heard the rival submissions. We are of the view that the approach adopted by the CIT(A) is not correct. Admittedly the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2004-05. We direct the AO to accept the actual rent received which is much more than the Municipal valuation as criteria for determining the annual value of the property. With regard to the order of the CIT(A) holding that the assessee cannot make a claim contrary to the return of income without filing revised return by placing reliance on the decision of the Hon ble Supreme Court in the case Goetz India Ltd.(supra) we are of the view that the Tribunal can consider such a claim even in the absence of revised return. The Hon ble Delhi High court in the case of Jai Parobolic Springs Ltd. Vs. CIT 306 ITR 42(Del.) has held that the power of the Tribunal to entertain the additional ground is not in any way restricted in view of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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