TMI Blog2021 (7) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision of the concerned section and Hon'ble Bombay High Court decision in case of Tiptop typography [ 2014 (8) TMI 356 - BOMBAY HIGH COURT] . The order of Ld. CIT(A) is without any application of mind. There is no discussion whatsoever as to where the act mandates that if a flat is inhabitable and in a ruinous condition notional rent should be computed thereon and imposed upon the assessee. The ITAT decisions referred by the assessee despite being noted has been ignored by the CIT(A). For all the above reasoning including the lack of application of mind by the CIT(A) and the scant regard to the judicial discipline the order of Ld. CIT(A) is set aside and the notional rent addition in this regard is directed to be deleted. Annual letting value of the flats at 6% of the flats - solitary plea of the assessee in this regard is that the notional rent should be restricted to the municipal ratable value - AO has levied 8% of the cost as notional rent and CIT(A) has restricted the same to 6% - HELD THAT:- We fail to understand as to why the CIT(A) has chosen again to exhibit his scant regard to the judicial discipline and not follow the Hon'ble Bombay High Court decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83905/- in place of ALV to be restricted to Municipal rateable value which in this case was the value determined by Gram Panchayat as held by Bombay High Court and erred in assessing ALV of Yashodeep flats at Municipal rateable value when there was material filed to demonstrate that the flat was not fit for occupation 2. The Ld. CIT erred in not granting the benefit of vacancy allowance U/s. 23(1)(c) since the flats were lying vacant for the whole year 3. The Appellant craves leave to add alter or amend the grounds of appeal at or before the hearing of the appellant 5. We have heard both the parties and perused the record. One of the issues in the appeal related to estimation of notional rent for the flat at Navi Mumbai. The Assessing Officer on the issue has rejected the assessee's plea that assessee was not in possession of the said flat as the agreement was cancelled. This was duly submitted also before the Ld. CIT(A), who chose to confirm the order of AO on the ground that the documentary evidence has not been produced by the assessee. 6. The order of the Ld. CIT(A) in this regard is as under:- It was contended by the AR of the appellant that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his proposition, he noted the reference by the assessee to several ITAT decisions. However, Ld. CIT(A) chose to display scant regard for judicial discipline. He did not at all refer whatsoever to the ratio emanating from the ITAT decisions. But, simply referred to the provision of the concerned section and Hon'ble Bombay High Court decision in case of Tiptop typography. He did not refer at all as to how the Hon'ble Bombay High Court decision empowers him to impose notional rent on a flat, which is inhabitable and in a ruinous condition. We may gainfully referred to this order of Ld. CIT(A) as under:- Flat Nos. 9 11 in building called Yashodeep situated at Carter Road Bandra was valued at ₹ 8,70,000/- and ₹ 2,62,63,090/- respectively. During the assessment proceedings, appellant had produced certificate from Municipal Corporation alongwith photographs of the flat to show that the flat was in a ruinous condition and dangerous for occupation. Thus, it was contended by the AR of the appellant that since the flat could not be given on rent, the annual value of the said flat cannot be estimated at 8% of its cost value. In this regard, appellant had placed relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount so received or receivable; or (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: From the above provision of law, it can be construed that in case the property or part thereof was vacant during the period, the proportion deduction should be allowed from the sum on which the property might reasonably be let out from year to year. We find that it is the plea of the assessee that due to inherent defects, the flat could not be let out. Hence, the flat remained vacant. Hence, the assessee has claimed benefit of section 23(1)(c) which duly permits deduction in this regard. Further and without prejudice, the appellant submitted that even if ALV is estimated, since the flat was vacant for the whole period of ownership, vacancy allowance u/s. 23(1)(c) should be allowed and hence even on this count no addition of ALV is justifiable. Further the appellant also relied on the decision of Bombay High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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