TMI Blog2022 (6) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... it was admitted by way of additional evidence and the remand report on its factual aspects was called it cannot be brushed aside by calling it a self-serving document unless the same was factually controverted by evidence or on oath statement on the part of revenue. Thus, the bench is of the considered opinion that there was sufficient material before the ld. Tax Authorities which established that there was a genuine dispute in the locality where the commercial building of assessee was situated and that dispute was of such nature that no prudent person could be expected to have taken the disputed building on rent. The fact that this meeting was called on 28.11.2011 where a consensus was reached between the authorities and owners of building indicate that during the relevant financial year the property was actually not available in the hands of assessee to be let out. Admittedly it was let out in next FY. Reliance on judgment of Vivek Jain [ 2011 (1) TMI 897 - ANDHRA PRADESH HIGH COURT] is not justified as that was a case where residential flat free of any sort of dispute was available in the hands of assessee to be let out. However, in the case in hand the property of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was framed u/s 153A/143(3) vide order dated 23.03.2016. In the assessment a sum of Rs.1,26,00,000/- was added to the income of assessee on the basis of the notional rent estimated by the Ld.AO on vacant commercial house property taking a view that tax is imposable on vacant property even though no rent is realized by interpreting section 23(1)(c) that benefit of the vacancy allowance cannot be granted if property is not let out during previous year. There is no dispute between Ld.AO and assessee that the property was vacant and no rent was realized or earned by any means/methods nor any kind of evidence is there. However, the claim of the assessee was that when this property was built at Sultanpur, MG Road, Government of Delhi was having a cealing drive on unauthorized property. This fact was brought to the notice of Ld.AO by filing minutes of meeting between owners of property who represented delegation before Hon ble Lieutenant Governor of Delhi to intervene in the working of MCD to support the stakeholder, since there was no need for sanction of map in Lai Dora land . Due to this sealing drive tenant were not easily available in the area and there was a genera resista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of MG Road Building Owners Association with Hon ble Lieutenant Governor, NCT Delhi on 08.12.2011 which is placed on page no. 2 to 4 of the paper book. It was contended that these minutes of the meeting indicate that there was an active disputes with regard to certain aspects of existing buildings which were not considered to be in accordance with the municipal laws. He relied the judgment of Hon ble Mumbai ITAT in Premsudha Exports (P.) Ltd. vs. Assistant Commissioner of Income Tax, Central Circle 10, [2008] 110 ITD 158 (Mum.) to contend that the phrases property is let as appearing in Section 23(1)(c) of the Act has been appropriately interpreted by the Mumbai Bench while holding that the phrases property is let does not mean actual letting of a property and if the property is left out unlet during any part or whole of the previous year due to circumstances beyond the control of owner then the vacancy allowance shall be given for whole of the year and the annual letting value should be considered NIL. 4.1 In this context, he also relied the judgment in Ms. Priyananki Singh Sood Vs. Assistant Commissioner of Income Tax, Circle 52(1), New Delhi 101 taxmann.com 45 (Delhi- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be read in a manner that if the property remains vacant throughout the year, section 23(1 )(c) do not apply at all more so when the property was let out in proceeding or subsequent year. Therefore, in the totality of the circumstances and having regard to the provisions of the Act, we are of the view that the ALV of the property at Danda Towers which remained vacant for the whole year has to be assigned Nil value in terms of section 23(1)(c) of the Act. 4.3 He also relied judgment (i) Sachin R. Tendulkar Vs. Deputy Commissioner of Income-tax, 23 (3), Mumbai [2018] 96 taxmann.com 253. (ii) DLF Ltd. vs. Assistant Commissioner of Income-tax, Range 10, New Delhi [2019] 106 taxmann.com 294 (Delhi Tribunal) and (iii) Sonu Realtors (P) Ltd. vs. Deputy Commissioner of Income-tax, 14(3)(2), Mumbai [2018] 97 taxmann.com 534 to contend that when there are genuine efforts to let out the property but same cannot be let out then no notional rent can be estimated. 4.4 On the other hand, the Ld. DR submitted that the ld. First Appellate Authority in para no. 4.3, 4.4 and 5.1 has taken into consideration the affidavit of the assessee tendered in additional evidence. It was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea and the issue was that building owners claimed that as per the 1963 Resolution of the Corporation, it was not mandatory to have prior sanction of building plans for constructions done within Lal Dora. It is not disputed that the property of assessee is situated in the Lal Dora and as per affidavit it is part of Khasra no. 356 and 357 Sultanpur, M.G.Road, New Delhi. The father of assessee was also part of the delegation. The minutes dated 28.11.2011 establish that in regard to partly demolished buildings status qua was directed to be maintained. While with regard to the objections raised by building owners, which included the asseessee s family, Hon ble Lieutenant Governor observed that Building bye- laws were meant to be followed for all buildings in Delhi, including those within Lal Doras and Village Abadi areas. It was also observed that there can be no compromise on structural and fire safety norms of any building in the Capital. 6.1 However, the ld. Tax Authorities failed to take into consideration, these minutes which substantially indicated that there was a genuine dispute in the locality where the property of assessee was situated with regard to failure of owners of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 where a consensus was reached between the authorities and owners of building indicate that during the relevant financial year the property was actually not available in the hands of assessee to be let out. Admittedly it was let out in next FY. 7. On the basis of above discussion the Bench is of considered opinion that the reliance of the ld. Tax Authorities on judgment of Andhra Pradesh High Court in Vivek Jain vs. ACIT (supra) is not justified as that was a case where residential flat free of any sort of dispute was available in the hands of assessee to be let out. However, in the case in hand the property of the assessee cannot be said to be one actually available with him to be let out. The claim of assessee is not merely that in spite of his efforts he could not let out a property which was otherwise rentable. His claim rests on the fact that the property was actually not rentable for the reasons of issues with regard to demolition drive and sealing in the area making it not worthy of being taken on rent for any commercial purpose. 8. This Bench is of considered opinion that the legal disability created by the action of municipal authorities or under course of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
