2020 (8) TMI 352 - AT - Income Tax

Power of CIT-A - Procedure in Appeal u/s 250 - plea has not been made before the AO but made before the appellate authorities - Valuation of property - whether the assessee can take an additional ground at appellate stage even when the same has not been raised before the lower authorities? - Determining the Annual Letting Value (ALV) of one of the property of the assessee which remained vacant during the period relating to the previous years relevant to the assessment years under consideration - AO determined the ALV of Property as per market rate and accordingly made the impugned additions after giving the benefit to the assessee of statutory deductions - HELD THAT - As decided in M/S JSW HOLDINGS LTD. 2017 (8) TMI 1609 - ITAT MUMBAI CIT(A) though, rightly admitted the question of law as to whether the income offered by the assessee in the return of income consequent to offer made in his statement recorded during the survey action can be challenged before the appellate authority, but wrongly decided the same in favour of revenue. In view of our findings given above and in view of the various case laws as discussed above, we have no hesitation to hold that the additional income was returned by the assessee perhaps under force, pressure, threat or coercion and under the mistaken belief. The assessee, in our view, was not liable to pay tax on the said additional income returned. We accordingly direct the Department to refund the taxes, if any, paid by the assessee in respect of additional income offered during the survey action. Even as per the provisions of sub section (4) and sub section (5) of section 250 of the Act, it was required of the CIT(A) to look into grounds taken by the assessee which were based on documentary evidence in the shape of Court orders and adjudicate upon them so as to determine the correct tax liability of the assessee. In view of this, the impugned orders of the CIT(A) which have been passed without considering the pleas taken by the assessee are not sustainable in the eye of law. However, the issue is required to be restored to the file of the CIT(A) for decision afresh. Appeal of assessee allowed for statistical purposes.

Summary

Issues Involved:

1. Determination of Annual Letting Value (ALV) of a property that remained vacant.
2. Legality of the CIT(A)'s decision without considering the assessee's pleas based on documentary evidence.
3. Jurisdiction of appellate authorities to entertain additional grounds not raised before lower authorities.

Detailed Analysis:

1. Determination of Annual Letting Value (ALV) of a property that remained vacant:
The primary issue in these appeals is the determination of the Annual Letting Value (ALV) of Property No. 13, which remained vacant during the relevant assessment years. The Assessing Officer (AO) observed that the assessee owned two properties, both in Lajpat Nagar, New Delhi. Property No. 73 was under a stay order from the Delhi High Court, preventing its transfer or letting out, while Property No. 13 was vacant and could be let out. The AO issued a notice to the assessee to explain why the ALV of Property No. 13 should not be determined per Sections 22 and 23 of the Income Tax Act, 1961. The assessee failed to provide sufficient reasons, leading the AO to determine the ALV based on market rates and make the necessary additions after statutory deductions.

2. Legality of the CIT(A)'s decision without considering the assessee's pleas based on documentary evidence:
The assessee appealed against the AO's order, arguing before the CIT(A) that Property No. 13 was self-occupied and thus no ALV should be determined under the Income Tax Act. For Property No. 73, the assessee highlighted a restrain order from the Delhi High Court, which prevented its letting out without the tenant's consent. The assessee also pointed out that the property was sealed by the MCD and was only desealed in 2010, making it impossible to rent or self-occupy the property during the relevant period. Despite these submissions, the CIT(A) did not address these arguments or the supporting documentary evidence. The tribunal noted that the CIT(A)'s order lacked findings on these crucial aspects, which should have been considered since the powers of the CIT(A) are co-terminus with those of the AO.

3. Jurisdiction of appellate authorities to entertain additional grounds not raised before lower authorities:
The tribunal emphasized that appellate authorities have the jurisdiction to entertain additional grounds not raised before lower authorities, as established by various judicial precedents. This includes the power to consider new claims or additional grounds based on changes in circumstances or law. The tribunal cited several cases, including the Supreme Court's decision in "National Thermal Power Co. Ltd. vs. CIT," which affirmed that appellate authorities could examine questions of law arising from the facts found by lower authorities, even if not raised earlier. The tribunal reiterated that the CIT(A) should have considered the assessee's claims based on documentary evidence, as mandated by Sections 250(4) and 250(5) of the Income Tax Act, to determine the correct tax liability.

Conclusion:
The tribunal found the CIT(A)'s orders unsustainable due to the failure to consider the assessee's pleas and documentary evidence. The tribunal restored the issue to the CIT(A) for fresh adjudication, ensuring that all relevant aspects and evidence are considered. Consequently, the appeals were allowed for statistical purposes, and the stay applications filed by the assessee were dismissed as infructuous. The order was pronounced in the open court on 06.05.2020.