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TMI Blog2019 (9) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities, we find, that the A.O without placing on record any supporting material had after estimating the rate of rent in respect of the property under consideration @ ₹ 20/- per sq. ft. worked out the ALV of the same at ₹ 3,38,160/-. We are unable to persuade ourselves to subscribe to the aforesaid methodology of estimation of the ALV by the A.O. In fact, we find substantial force in the claim of the assessee that the ALV of the aforesaid property ought to have been worked out as per its municipal rateable value . Our aforesaid view is fortified by the case of CIT-12 Vs. Tip Top Typography [ 2014 (8) TMI 356 - BOMBAY HIGH COURT] . Accordingly, we restore the matter to the file of the A.O who is directed to work out the ALV of the aforesaid property viz. Wanworie, Pune, after taking cognizance of the aforesaid judgment of the Hon ble High Court of Bombay in the case of Tip Top Typography Unearned income from let out house property - HELD THAT:- it is the claim of the assessee that the property under consideration had during the year remained let out only for a period of 8 months, and thus, for the said reason the rent for the remaining 4 months was not account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards property at Vora Apt., Ghatkopar, even though the same was Self Occupied by the assessee. 3. Without prejudice to the above, On the given facts, circumstances and judicial pronouncements; when the order giving effect is passed by the Ld. AO the property at Vora Apartments should be treated as Self Occupies Property and relief to that extent should be given. 4. On the given facts, circumstances and judicial pronouncements; Learned Commissioner of Income Tax Appeals erred in not passing any direction as regards the property at Wanworie, Pune. 5. Without prejudice to the above, On the given facts, circumstances and judicial pronouncements; the property at Wanworie, Pune should be assessed to tax under the head Income from House Property as deemed let out on the basis of the municipal valuation. 6. On the given facts, circumstances and judicial pronouncements; learned Commissioner of Income Tax Appeals erred in directing the Ld. AO to recomputed the unearned income from let out house property at Mahape, Navi Mumbai for four months, such direction by Commissioner is bad in law and erroneous in facts and liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount 1. Rent received, Mahape property as per statement 4,00,000/- Annual value of two flats 7,43,760/- 11,43,760/- Less: Deduction u/s. 24(a) 3,43,128/- 8,00,632/- 2. Deemed dividend under Sec. 2(22)(e) of the Act. ₹ 13,37,681/- 3. Aggrieved, the assessee carried the matter in appeal before the CIT(A). However, the CIT(A) not finding favour with the contentions advanced by the assessee as regards the additions made by the A.O towards deemed dividend under Sec.2(22)(e) of the Act, upheld the same. As regards the addition made by the A.O towards Annual Lettable Value (for short ALV ) of the properties owned by the assessee, it was noticed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the CIT(A) has carried the matter in appeal before us. We find that despite the fact that the assessee was aware of the date of hearing of the appeal, however, had failed to put up an appearance before us. Accordingly, being left with no other alternative we are constrained to dispose off the appeal as per Rule 24 of the Appellate Tribunal Rules, 1963 after hearing the respondent revenue and perusing the orders of the lower authorities. The ld. Departmental Representative (for short D.R ) had relied on the orders of the lower authorities. 5. We shall now advert to the various issues as regards which the order of the CIT(A) has been assailed by the assessee before us. We shall first advert to the claim of the assessee that now when he had filed with the CIT(A) a copy of the final possession letter , dated 14.01.2011 in respect of his property at Clover Regency, Ghatkopar, which revealed that the said property during the year under consideration viz. A.Y. 2009-10 was under construction, therefore, the CIT(A) was in error in directing the A.O to verify the said factual position. We have given a thoughtful consideration to the said claim of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty viz. Vora Apartment, Ghatkopar as a selfoccupied property and consequently take its ALV at Rs. nil. We have deliberated on the aforesaid claim of the assessee and finding ourselves to be in agreement with the same, hence direct the A.O that in case if in the course of the set aside proceedings the claim of the assessee that his property at Clover Regency, Ghatkopar during the year under consideration i.e A.Y. 2009-10 was under construction, is found to be in order, then the property of the assessee at Vora Apartment, Ghatkopar, which as claimed by the assessee was under his self-occupation during the year shall be worked out as per Sec.23(2)(a) of the Act. However, the A.O while giving effect to our aforesaid directions shall make necessary verification as to whether the aforesaid property viz. Vora Apartment, Ghatkopar, during the year under consideration i.e A.Y. 2009-10 was under the selfoccupation of the assessee, or not. Needless to say, the assessee in the course of the set aside proceedings shall be afforded a sufficient opportunity by the A.O to substantiate his aforesaid claim. The Grounds of appeal Nos. 2 3 are allowed for statistical purposes in terms of our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le computing the total assessed income of the assessee had taken the rental income in respect of the Mahape Property at ₹ 4,00,000/- only. On the basis of the aforesaid facts, it was observed by the CIT(A), that despite the aforesaid observation the A.O had taken the total rental income in respect of the aforesaid property at ₹ 4,00,000/-. Accordingly, the CIT(A) had directed the A.O to take remedial measures and re-compute the total income in respect of the property of the assessee at Mahape, Navi Mumbai, as per the facts on record. We find that it is the claim of the assessee that the property under consideration had during the year remained let out only for a period of 8 months, and thus, for the said reason the rent for the remaining 4 months was not accounted for as a part of his income in the return of income. In our considered view, as the CIT(A) had in all fairness directed the A.O to re-compute the total income from the property at Mahape, Navi Mumbai, as per the facts on record, therefore, no infirmity does emerge from the said direction. Accordingly, not finding favour with the aforesaid claim of the assessee, we uphold the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In order to fortify his aforesaid view, the CIT(A) relied on the judgment of Hon ble High Court of Bombay in the case of CIT Vs. Universal Medicare Pvt. Ltd. (2010) 324 ITR 263 (Bom) and the order of the Special bench of the ITAT, Mumbai in the case of ACIT Vs. Bhaumik Colours Pvt. Ltd. (2009) 118 ITD 1 (Mum) (SB). Accordingly, the CIT(A) upheld the order of the A.O in context of the aforesaid issue under consideration. 10. We have given a thoughtful consideration to the aforesaid issue and are persuaded to subscribe to the view taken by the lower authorities. Admittedly, the assessee during the year under consideration was the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) holding not less than 10% of the voting power, in both of the aforementioned companies viz. (i) M/s Nishitech Systems Pvt. Ltd.; and (ii) M/s Sanitech Engineers Pvt. Ltd. As per clause (e) of Sec. 2(22) of the Act, any payment by a company not being a company in which the public are substantially interested, of any sum, by way of an advance or loan to a shareholder, being a person wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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