2018 (4) TMI 1513 - AT - Income Tax

Determination of annual letable value (ALV) of the house property - flat remained vacant during the relevant previous year - Held that - Where any part of the property is let out and was vacant during the whole or any part of the previous year and due to such vacancy rent received / receivable by the owner is less than the ALV determined under section 23(1)(a) in that case the actual rent received or receivable is to be treated as the ALV. The submissions of the DR, since the properties in dispute were not let out earlier, the assessee will not be eligible to avail the benefit of section 23(1)(c) is not acceptable. The expression ―the property or any part of the property is let as used in clause (c) of section 23(1) does not mean that for availing the benefit of the said sub clause the property must have been let out earlier. The Tribunal, Mumbai Bench, in Premsudha Exports Pvt. Ltd. (2007 (5) TMI 348 - ITAT MUMBAI) has also held that the expression ― property is let under clause (c) of section 23(1) does not mean that the property should have been actually let in the relevant previous year or during any time prior to the relevant previous year. But it will mean the property is intended to be let out. Thus we hold that the learned Commissioner (Appeals) was justified in directing the Assessing Officer to allow the deduction under section 23(1)(c) to the assessee - Decided against revenue

Summary

Issues:
- Determination of annual letable value (ALV) of the house property.

Analysis:
1. The appeals by the Revenue pertained to two separate orders for different assessment years. Since the appeals involved common issues, they were heard together. The main grievance of the Revenue was related to the determination of ALV of the house property.

2. The Assessing Officer found discrepancies in the income declared by the assessee from house property for the assessment year 2012-13. The flats owned by the assessee were located in a posh area, and the Assessing Officer determined the ALV based on the market rates of similar properties in the vicinity. The ALV was calculated at different rates per sq.ft. for each flat, resulting in additions to the assessee's income.

3. The assessee argued before the Commissioner (Appeals) that since the properties were vacant due to difficulties in finding suitable tenants, they should be eligible for deduction under section 23(1)(c) of the Act. The Commissioner (Appeals) agreed with the assessee's contention, citing relevant legal provisions and precedents, and directed the Assessing Officer to delete the additions made based on ALV calculations.

4. The Departmental Representative disagreed, stating that the provisions of section 23(1)(c) were not applicable as the properties were not let out earlier. However, the Authorized Representative supported the assessee's position, emphasizing that the properties were ready for letting out but remained vacant due to genuine reasons.

5. The Tribunal analyzed the provisions of section 23(1)(c) and the interpretation of "property is let" in relevant case laws. It held that the expression did not require the property to have been actually let out earlier, but it should be intended for letting out. Relying on precedents, the Tribunal upheld the Commissioner (Appeals)'s decision to allow the deduction under section 23(1)(c) to the assessee, dismissing the appeals by the Revenue.

6. In conclusion, all the appeals were dismissed, and the Tribunal upheld the decision to allow the deduction under section 23(1)(c) for the assessee, emphasizing the intention to let out the properties despite their vacancy during the relevant previous year.