2012 (11) TMI 58 - AT - Income Tax

Whether income from house property estimating at 10% of value of property Assessee submitted that the 3 flats and one shop having value of which comes to are being used for assessee s political activities - AO treat it as violation of the provisions of section 22/23 and estimated 10% of the investment in such House Property as the notional income Held that - Assessee has also not furnished the details of payment of Municipal Taxes. In totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the AO to ascertain as to whether the 3 flats and a shop in question are being used for the political activities of the assessee or not. Issue remand back to AO A house in village of assessee is being used for agricultural activities AO estimates 10% of the investment in such House Property as the notional income - Held that - Since in the assessment order AO has determined the agricultural income at Rs. 75,000/-. Therefore, if the house at Village is used for agricultural activities then no notional rent could be computed. Therefore restore back the same to AO for fresh verification Assessee has 2 vacant plots - AO has adopted 10% of the investment value as the notional rent under head income from house property Held that - Since the adoption of 10% of the investment appears to be on the higher side. We, therefore, direct the AO to adopt 8% of the investment as the notional rent from such house properties. Addition on the basis of report of valuation officer on under constructions property AO made reference to Department valuation officer to determine cost of construction, in absence of books Held that - As the assessee neither produced books of accounts before the AO nor any books of accounts were found during the course of search could not be controverted by the assessee. Therefore under these circumstances AO rightly referring the matter to the DVO for determining the cost of construction. Whether CIT(A) accepting the report of DVO after passing the assessment order by AO Held that - Since the DVOs report was received after passing of the order by the AO, therefore, the CIT(A) was fully justified in accepting the report of the DVO. It is the settled proposition of law that the powers of the CIT(A) are co-terminus with that of the powers of the AO. He may confirm, reduce, enhance or annul any assessment made by the AO. Issue decides in favour of revenue

Summary

Issues Involved:
1. Estimation of notional income from house property.
2. Addition based on the valuation officer's report for under-construction property used for self-occupation.

Issue-wise Detailed Analysis:

1. Estimation of Notional Income from House Property:

The assessee challenged the confirmation of income from house property at Rs. 2,44,217/- on an estimated basis at 10% of the value of the property. The Assessing Officer (AO) noted that the assessee had made investments in multiple immovable properties but did not offer any income under the head "Income from House Property" for these properties, except for the self-occupied property at 58A, MCCH Society, Panvel. The AO estimated 10% of the investment in these properties as notional income and made an addition of Rs. 5,99,262/- after deducting 30% towards repairs under section 24 of the Income Tax Act.

The CIT(A) observed that two properties were vacant plots and excluded them from notional income estimation. However, the CIT(A) upheld the AO's estimation of notional income at 10% for the remaining properties, noting that the properties were in growing areas and the assessee did not provide evidence of their use for political purposes or details of municipal tax payments.

The Tribunal found merit in the assessee's argument regarding the house at Village Kalote being used for agricultural activities, as the AO had determined agricultural income at Rs. 75,000/-. The Tribunal restored this issue to the AO for fresh adjudication. Similarly, the issue of the 3 flats and one shop at Sawali building, Panvel, used for political activities, was also restored to the AO for verification. The Tribunal directed the AO to adopt 8% of the investment value as the notional rent for the remaining properties, considering 10% to be on the higher side.

2. Addition Based on the Valuation Officer's Report for Under-construction Property:

The assessee contested the addition of Rs. 19,84,650/- based on the valuation officer's report under section 55A read with section 142A of the Income Tax Act. The AO noted an investment of Rs. 5,47,784/- in the construction of the assessee's residential house at 58A, MCCH Society, Panvel, and referred the property to the Valuation Cell. The valuation report, received after the assessment, estimated the construction cost at Rs. 78.24 lakhs against Rs. 41.13 lakhs declared by the assessee. The AO treated the excess expenditure as unexplained investment and added it to the returned income under section 69B.

The CIT(A) justified the reference to the DVO, noting that the assessee neither produced books of accounts nor were any books found during the search. The CIT(A) allowed an additional 4% for self-supervision charges, determining the total construction cost at Rs. 74,94,822/- and sustaining the addition of Rs. 19,84,650/-.

The Tribunal upheld the CIT(A)'s decision to refer the matter to the DVO, as the assessee did not produce books of accounts. However, the Tribunal noted that the CIT(A) determined the cost of construction as if the house was fully complete as on 31-03-2008, whereas the construction was ongoing. The Tribunal restored the issue to the AO to determine the cost of construction up to 31-03-2008 and decide the issue afresh.

The Tribunal dismissed the assessee's argument against the CIT(A) accepting the DVO's report received after the assessment order, stating that the CIT(A)'s powers are co-terminus with those of the AO.

Conclusion:

The appeal by the assessee was partly allowed for statistical purposes, with directions to the AO for fresh adjudication on specific issues.