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TMI Blog2018 (1) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... erial placed on record. From the record I found that the assessee is the proprietor of M/s. Khyber Restaurant. The assessee is the owner of Flat No.91-B, Colaba, Mumbai - 5. The area of the flat is 3000 sq.ft. The assessee vide leave and licence agreement dated 23/01/2008 let out the flat alongwith the one reserved covered car parking space in the compound to Induslnd Bank for a period of 33 months commencing on 1.2.2008 and ending on 31.10.2010 both days inclusive on a monthly rent of Rs. 16,500/- from April, 2009 to January, 2010 and Rs. 18,150/- from February, 2010 to March, 2010 and interest free security deposit of Rs. 5,75,00,000/-. The assessee had disclosed annual rental value of the said flat u/s. 23 of the I.T. Act at 2,01,300/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der (supra) has determined ALV at Rs. 28,000/- p.m. in respect of A. Yr. 2005-06, as against Rs. 15,000/- p.m. declared by the appellant. The operative part of the decision is as under: ' "4. We have heard the arguments of both the sides and also perused the relevant matter on record. The learned representatives of both the sides have cited various Judicial pronouncements on the issue involved in these appeals in support of their respective stand. It is, however, observed that in the decision recently delivered in the case of the CIT vs. Moni Kumar Subba 333 ITR 38 (Del), the full Bench of Hon 'ble Delhi High Court has considered and decided a similar issue after taking into consideration all the relevant aspects of the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parable instances and found on such examination that one of such comparable cases, namely, Poonam K. Rohira and GauriKapoo was the closest to the case of the assesses. In the said case, deposit taken was Rs. 2.5 crores and rent received was Rs. 27,902/- per month as against deposit of Rs. 2.24 crores taken by the assessee and rent of Rs. 23,000/- per month. On the basis of the said comparable case, the fair rent of the assessee's property was determined by the learned CIT(Appeals) at Rs. 28,000/- per month for assessment years 1999-2000 to 2002-03 which, in our opinion, is in consonance with the ratio laid down by the full Bench of Hon 'ble Delhi High Court in the case of Moni Kumar Subba (supra). We, therefore, find no infirmity in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the appellant himself on the same issue for the earlier A.Yrs 1999-2000 to 2005-06, held vide their order dated 22nd August 2014 as under: "All these appeals are filed by the Revenue. They are directed against an order of the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal has held that the ratio of the Full Bench decision of the Delhi High Court in the case of Commissioner of Income Tax V/s Moni Kumar Subba and which is reported in (2011) 333 ITR 38 (Delhi) does not permit the revenue to reject the amount determined as rent or license fees by the assesse on mere doubt or suspicion. There has to be cogent and satisfactory material to indicate that the rent or fees determined by the parties are not indicative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair. The appeals are devoid of any merit as they do not raise any substantial question of law and they are accordingly dismissed. No costs." The appellant has actively agitated against the action of the AO to resort to the adoption of rateable value in place of the actual rent received by the appellant. He has cited the decision of Bombay High Court in Tip Top Typography to justify his stand. He has strongly contended that the ratio of the said case squarely applies to the facts of the present case of the appellant as per the unambiguous observations made by the Hon'ble Bombay High Court in his own case. On going through the order of the Bombay High Court in the assessee's own case, it is observed that while dismissing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly by the Hon'ble High Court in the appellant's own case, covers the facts of the appellant's case. On the facts of the present case, the conditions precedent to resort to enquiry or adoption of the prevailing rateable value are absent. In view of the same, and in my considered opinion, the rent actually received by the appellant shall be taken to be the actual rent for tax purposes. Respectfully following the Hon'ble Bombay High Court in appellant own case order dtd. 22.08.2014, I am of the considered opinion that the estimation of rent done by the AO is not justifiable one. 5. It is clear that CIT(A) has deleted the addition after following the order of the Tribunal in assessee's own case for the A.Y.1999-2000 to 2005-06. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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