TMI Blog2018 (4) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... EMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Shri. Yogesh Thar And Ms. Chaitanay Joshi For The Revenue : Shri M.C Omi Ningshen (DR) ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee, being ITA No. 7391/Mum/2016 , is directed against appellate order dated 28.09.2016 passed by learned Commissioner of Income Tax (Appeals)-39, Mumbai (hereinafter called the CIT(A) ), for assessment year 2012-13, the appellate proceedings had arisen before learned CIT(A) from assessment order passed by learned Assessing Officer (hereinafter called the AO ) u/s 143(3) of the Income-tax Act, 1961 (hereinafter called the Act ) for AY 2012-13. 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under:- GROUND I: LICENSE FEES ASSESSABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION AND NOT INCOME FROM HOUSE PROPERTY 1.1 On the facts and in the circumstances of the case and in law, the Learned CIT(A) erred in upholding the action of the Deputy Commissioner of Income Tax, Central Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taxed under the head Income from Other Sources if not under the head Profits and Gains under the head Profits and Gains of Business or Profession . WITHOUT PREJUDICE TO GROUNDS I, II III GROUND IV : NON-ADJUDICATION OF CLAIM OF MAINTENANCE CHARGES WHILE COMPUTING ANNUAL VALUE OF LET OUT FLATS 4.1 On the facts and circumstances of the case and in law, the Learned CIT(A) erred in not adjudicating the Ground dealing with the action of the AO in disallowing the claim for deduction of maintenance charges in computing Annual Letting Value and in computing income under the head 'Income from House Property' on fully furnished flats on the ground that the issue of deductibility of maintenance charges is of academic interest since even without considering this issue the assessed income is below the returned income. 4.2 He failed to appreciate and ought to have held that the deduction to which the Appellant is otherwise entitled, in accordance with the provisions of the Act, cannot be denied merely on the ground that even without considering such deduction the assessed income is below the returned income. 4.3 The Appellant, therefore, prays th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year, the assessee has come in an appeal before the tribunal . At the outset , Ld. Counsel for the assessee submitted that ground no. (I) to (IV) raised by the assessee in memo of appeal filed with the tribunal are not pressed and the same should be dismissed as not being pressed. The Ld. DR raised no objection for the dismissal of ground no. (I) to (IV). After hearing both the parties and on perusal of the material on record , we hereby dismiss ground no (I) to (IV) as raised by the assessee in memo of appeal filed with the tribunal as not being pressed. We order accordingly. With respect to the ground no (V) raised by the assessee in its appeal filed with the tribunal, it is the submission of ld. Counsel for the assessee that the said ground is covered by the decision of the tribunal in assessee‟s own case in ITA no. 273/Mum/2015 and 274/Mum/2045 for AY 2010-11 and 2011-12 respectively vide common order dated 28.07.2017 . The assessee has placed the said orders of the tribunal dated 28-07-2017 which is placed in file and our attention was drawn by learned counsel for the assessee to the decision of the tribunal in said orders. The Ld. DR fairly agreed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has declared total income of ₹ 12,14,75,531. While doing so, the assessee has treated the income derived from letting out of flats as business income. In the course of assessment proceedings, the Assessing Officer after considering the facts and material on record, in his own wisdom concluded that income from letting out of flats is to be assessed under the head income from house property and accordingly proceeded to compute the income of the assessee. However, as a result of such computation made by the Assessing Officer the income was determined at ₹ 11,79,83,380. Having found that the income determined by him is lesser than the income returned by the assessee the Assessing Officer adopting the income returned by the assessee, computed the tax liability. In our considered opinion, the aforesaid action of the Assessing Officer is legally impermissible. As could be seen, the Assessing Officer himself took a decision to treat the income from letting out of properties as a house property income instead of business income. Therefore, while computing the tax liability the Assessing Officer has to give full effect to the income computed by him by adopting such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if the same is shown by an assessee. There is no estoppel by conduct against law nor is there any waiver of the legal right as much as the legal liability to be assessed otherwise than according to the mandate of the law (sic). It is always open to an assessee to take the plea that the figure, though shown in his return of total income, is not taxable in law. The Tribunal, therefore, in our view did not commit any error in directing to fix the correct annual letting value of the premises in question, in accordance with the provisions of section 23 of the said Act with reference to the municipal valuation, although such sum was lower than the figure shown by the assessee in his returns of total income. The other decisions relied upon by the learned Authorised Representative also express similar view. Thus, keeping in view the ratio laid down in the decisions referred to above, we hold that the Assessing Officer is bound to compute the tax payable by the assessee on the income computed by him even if it is at a lesser figure than the income returned by the assessee. This ground is allowed. In the result, assessee s appeal is partly allowed. Respectively follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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