TMI Blog2019 (12) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 425 of project Balaji Bhavan by the A.O by taking recourse to Sec. 23(1)(a), which thereafter was sustained by the CIT(A), is vacated. - ITA No. 5081/MUM/2018 - - - Dated:- 6-12-2019 - SHRI RAJESH KUMAR, HON. ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, HON. JUDICIAL MEMBER For the Appellant : Shri J.P. Bairagra, CA\ For the Respondent : Shri V. Vinod Kumar, Sr.DR ORDER PER RAJESH KUMAR, ACCOUNTANT MEMBER This is an appeal filed by the assessee against the order of Commissioner of Income Tax (Appeals)-22, Mumbai, dated 21/06/2018 for A.Y. 2013-14. 2. The only issue raised by the assessee in this appeal is against the confirmation of the action of the AO by the ld.CIT(A) in computing the ALV of the office premises at Balaji Bhavan at ₹ 99,21,226/- when the premises were as lying vacant. 3. Facts are in brief that the AO during the course of assessment proceedings observed that the assessee has made huge investments in house properties of ₹ 3,43,36,083/-, which were not categorized as stock-in-trade. Accordingly, a showcause notice was issued to the assessee as to why the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned u/s 23(1)(a) as held by the lower authorities. We find that it is an admitted fact that though the assessee had vide agreement dated April, 2007 let out the Unit No. 401 425 of project Balaji Bhavan to M/s Sterling Construction Pvt. Ltd. for a period of 36 months, and had offered the rental income received therefrom as its Income from house property in the preceding years, but after the expiry of the license period of 36 months the licensee had vacated the property and conveyed its intention of not getting the license agreement renewed any further. We further find from a perusal of the records before us that it is not the case of the department that after the property was vacated, the same thereafter had remained under the self occupation of the assessee. In light of the aforesaid factual position in the case of the present assessee, we find ourselves to be in agreement with the submissions of the Ld. A.R. that the issue raised before us is squarely covered by the orders of the coordinate benches of the Tribunal in the case of viz. (i). Vikas Keshav Garud Vs. ITO, Ward 1(2), Nashik (2016) 160 ITD 7 (Pune) (ii). ACIT, Circle-47(1), New Delhi Vs. Dr. Prabha Sanghi (2012) 139 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (a) of Section 23(1) if we see the combined reading of Sub-section (2) and (4) of Section 23. One thing is more important because we find that where the legislature have considered that actual letting out is required, they have used the words house is actually let‟. This can be seen in Subsection (3) of same Section 23. But in Clause (c) above, actually let‟ words are not used and this also shows that meaning and interpretation of the words property is let‟ cannot be property actually let out‟. In our opinion, it talks of properties which are held to letting out having intention to let out in the relevant year coupled with efforts made for letting it out. If these conditions are satisfied, it has to be held that property is let and the same will fall within the purview of this clause. We find ourselves to be in agreement with the aforesaid observations of the coordinate bench of the Tribunal, which analyzing the scope and gamut of Sec. 23(1)(c) of the Act‟, had therein concluded that in light of the words Property is let‟ used in clause (c) of Sec. 23(1) of the Act‟, unlike the term house is actually let‟ as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that the CIT(A) had misconceived the judgment of the Hon‟ble High Court of Andhra Pradesh in the case of Vikas Jain (supra), and on a perusal of the said judgment therein find that the Hon‟ble High Court in the concluding Para 14 15 had though concluded that the benefit of computing the ALV‟ u/s 23(1)(c) could not be extended to a case where the property was not let out at all, would however duly encompass and take within its sweep cases where the property had remained let out for two or more years, but had remained vacant for the whole of the previous year. Thus we are of the view that now when in the case of the present assessee the property under consideration had remained let out upto 04.12.2008, and thereafter though could not be let out and had remained vacant during whole of the year under consideration, but also had never remained under the self occupation of the assessee, the computation of the ALV‟ u/s 23(1)(c) of the Act‟, had rightly been carried out in light of the aforesaid judgment of the Hon‟ble High Court. 7.2 That in light of our aforesaid observations the Ground of appeal No. 2 of the assessee is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough subject to the condition that the same is not put under self occupation of the assessee and is held for the purpose of letting out of the same, would continue to be determined u/s 23(1)(c) of the Act‟. Thus, in light of the aforesaid order of the coordinate bench of the Tribunal and the reasonings flowing there from, we are of the considered view that the assessee in the present case had rightly determined the annual value‟ of the property at Nil by taking recourse to Sec. 23(1)(c) of the Act‟. 8. We may further observe that the CIT(A) had misconceived the judgment of the Hon‟ble High Court of Andhra Pradesh in the case of Vivek Jain Vs. ACIT (2011) 337 ITR 74 (AP). We find that in the said judgment the Hon‟ble High Court in the concluding Para 14 15 had observed that though the benefit of computing the ALV‟ u/s 23(1)(c) could not be extended to a case where the property was not let out at all, however the same would duly encompass and take within its sweep cases where the property had remained let out for two or more years, but had remained vacant for the whole of the previous year. Thus, we are of the considered view that n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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