2022 (2) TMI 340 - AT - Income Tax

Income from house property - higher value of the rent be treated as deemed income under the head Income from house property with respect to the property which was actually let out, vacant and/or kept for self uses - HELD THAT - We find that contention of the assessee was that the issue related to rateable value adopted by NDMC was under consideration for review before the Competent Authority at NDMC. This aspect is not addressed by Ld. CIT(A) therefore, we modify the order of Ld.CIT(A) and direct the Assessing Officer to consider the decision of NDMC in respect of the rateable value revised in the subsequent year and adopt the same for this year as well. This ground of assessee s appeal is allowed in terms stated herein above. Expenses incurred for earning rental income - CIT-A deleted the addition - HELD THAT - We do not see any infirmity into the order of Ld.CIT(A) as the Revenue itself has not made any disallowance in other years. Moreover, no reason is assigned for not following Rule of Consistency. The Revenue is under legal obligation to be consistent in its approach regarding taxability of any item. It cannot be purely on the whims and fancies of the Assessing Officer. The Ground No.1 of Revenue s appeal is dismissed. Disallowance of compensation paid to allottees - HELD THAT - We find that the similar issue was decided by the Hon ble High Court of Delhi in assessee s own case 2019 (3) TMI 1272 - DELHI HIGH COURT answered question of law in favour of the Assessee and against the Revenue by holding that the conclusion recorded by the ITAT that the compensation was paid by the Assessee for 'extraneous consideration' is perverse and contrary to the record - Decided against revenue. Addition of bank guarantee commission paid to Bank - HELD THAT - Issue decided in own case that the expenditure incurred subsequent to the completion of the project cannot be attributed to work and had to be allowed only as revenue expenditure. Consequently, the question is answered in the affirmative in favour of the Assessee and against the Revenue.. Addition u/s 14A r.w. Rule 8D - HELD THAT - We find that Ld.CIT(A) gave a finding on fact that the assessee had not earned any exempt income. Therefore, in the light of the judgement of Hon ble High Court of Delhi in the case of CIT vs Holcim India Pvt.Ltd 2014 (9) TMI 434 - DELHI HIGH COURT (Del.), we hereby dismiss the ground raised by the Revenue. Addition u/s 41(1) on account of cessation of liability - CIT-A deleted the addition - HELD THAT - CIT(A) has rightly followed the judgement of Hon ble High Court of Delhi in the case of CIT vs Shree Vardman Overseas Limited 2011 (12) TMI 77 - DELHI HIGH COURT Moreover, the Assessing Officer has not brought any material to suggest that the liabilities have seized to exist. In the absence of such material, no interference is called for. Addition on account of difference in receipt in Form No.26AS in Profit Loss Account - HELD THAT - A.O. could have made direct enquiries with the tenant or with the TDS Authorities and could have examined the bank statement and the Lease agreement with the tenant and also the extent of income offered by the appellant in respect of same tenants in subsequent assessment years before arriving at the decision. The Ld A.O. has evidently not made such efforts. Keeping in view the above in terms of the decision of Hon'ble Delhi High Court in the case of Court On Own motion Vs Union 2013 (3) TMI 316 - DELHI HIGH COURT the appellant cannot be asked the suffer on account of the errors committed by third party in filing the TDS statement. A.O. is therefore, directed to carry out enquiry from M/s Sahara and M/s EPCS to verify the actual amount of rental income for the twelve months falling in the period 01.04.2010 till 31.03.2011 and determine income of the appellant accordingly. With regard, one M/s Reliance Hyper Realty Ltd., since that party is not even a tenant, the mistake carried out by it in showing appellant as payee of rental income, cannot be the basis for making addition in the hands of appellant - Decided against revenue.

Issues Involved:
1. Determination of Annual Lettable Value (ALV) of a property.
2. Non-decision of a ground of appeal by CIT(A).
3. Disallowance of expenses under the head "Income from House Property".
4. Disallowance of compensation paid to allottees.
5. Disallowance of bank guarantee commission.
6. Disallowance under Section 14A.
7. Addition under Section 41(1) on account of cessation of liability.
8. Addition due to discrepancy between Form 26AS and Profit & Loss Account.

Issue-wise Detailed Analysis:

1. Determination of Annual Lettable Value (ALV) of a property:
The assessee contested the ALV of the 10th floor of Gopal Das Bhawan, which was determined by the Assessing Officer (AO) based on the provisional rateable value fixed by NDMC at ?1,64,53,100/-, as opposed to the actual rent of ?88,92,600/- received. The CIT(A) upheld the AO’s determination but directed the AO to compute the ALV based on the NDMC valuation for one month and multiply it by the number of months the property was actually let out. The Tribunal modified this order, directing the AO to consider the revised rateable value by NDMC for the subsequent year and apply it to the current year.

2. Non-decision of a ground of appeal by CIT(A):
The assessee raised a ground that the AO made an over-pitched assessment disregarding judicial precedents, which was not addressed by CIT(A). The Tribunal restored this ground to CIT(A) for a decision on merit.

3. Disallowance of expenses under the head "Income from House Property":
The AO disallowed expenses amounting to ?1,28,15,025/- claimed under "profits and gains of the business or profession" but related to "Income from House Property". The CIT(A) deleted the disallowance, and the Tribunal upheld this decision, noting that no similar disallowance was made in other assessment years and emphasizing the need for consistency.

4. Disallowance of compensation paid to allottees:
The AO disallowed compensation of ?37,98,932/- paid to allottees, which was deleted by CIT(A). The Tribunal upheld the deletion, referencing a precedent from the Delhi High Court in the assessee's favor, which recognized such payments as business expenditure.

5. Disallowance of bank guarantee commission:
The AO disallowed ?5,06,577/- paid as bank guarantee commission. CIT(A) deleted this disallowance, and the Tribunal affirmed, citing the Delhi High Court's decision in the assessee's favor, treating such payments as revenue expenditure.

6. Disallowance under Section 14A:
The AO made a disallowance of ?24,67,387/- under Section 14A read with Rule 8D. CIT(A) deleted the disallowance, noting the absence of exempt income. The Tribunal upheld this decision, referencing the Delhi High Court's judgment that Section 14A is inapplicable without exempt income.

7. Addition under Section 41(1) on account of cessation of liability:
The AO added ?77,24,546/- under Section 41(1) due to cessation of liability. CIT(A) deleted the addition, noting that the liabilities were not written off unilaterally and continued to exist. The Tribunal upheld this decision, citing the Delhi High Court’s ruling that liabilities not written off cannot be deemed to have ceased.

8. Addition due to discrepancy between Form 26AS and Profit & Loss Account:
The AO added ?1,35,37,730/- due to discrepancies between Form 26AS and the Profit & Loss Account. CIT(A) deleted the addition, directing the AO to verify the actual rental income from tenants. The Tribunal affirmed this decision, noting the need for proper verification and the errors in the TDS statement.

Conclusion:
The Tribunal partly allowed the assessee's appeals for statistical purposes and dismissed the Revenue's appeal. The decisions were based on detailed analysis and adherence to legal precedents, ensuring fair and consistent application of tax laws.

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