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TMI Blog2019 (12) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee by submitting that impugned properties were lying vacant for the entire year as the tenant-M/s. Sterling Construction System Pvt. Ltd. has left the premises and no rent whatsoever was received. The assessee further stated before the AO that the case of the assessee is covered by section 23(1)(a) of the Act and therefore the annual value should be taken as NIL as it was vacant throughout the year. The reply of the assessee did not find favour with the AO and he calculated the deemed rent of Rs. 90,19,296/- and made the addition accordingly. 4. In the appellate proceedings, the ld.CIT(A) dismissed the appeal of the assessee by observing that in respect of earlier years i.e. A.Y. 2011-12 & 2012-13 the same issue was decided against the assessee by following the decision of the Hon'ble Andhra Pradesh High Court in the case of Vivek Jain vs. ACIT [(2011) 337 ITR 74 (AP)]. 5. At the outset, ld.AR submitted that the present issue is squarely covered by the decision of the Coordinate Bench in assessee's own case in ITA No. 2892/MUM/2016 and ITA No. 66/MUM/2017 for the A.Ys. 2011-12 & 2012-13 by order dated 19/09/2018 wherein the issue has been decided in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D 158 (Mum); and (iv). Informed Technologies India Ltd. Vs. DCIT3(2), Mumbai (2017) 162 ITD 153 (Mum). We find that in the case of Informed technologies India Ltd. (supra) the Tribunal after deliberating at length on the issue as regards the scope and gamut of Sec. 23(1)(c) of the Act, had observed as under : " "7.1 We have considered the rival submissions of either side and perused the relevant material on record, including the orders of the authorities below. The issue under consideration for adjudication before us is as to whether the "ALV‟ of the property owned by the assessee in Darshan Aparments, Malabar Hills, Mumbai, had rightly been determined by the assessee by taking recourse to Sec. 23(1)(c) of the "Act‟, or the same was liable to be determined u/s 23(1)(a) as so held by the lower authorities. We find that it is matter of undisputed fact that the property of the assessee remained let out upto 04.12.2008, and thereafter the same remained vacant. We further find from the perusal of the records before us that it is not the case of the department that after the property was vacated as on 04.12.2008, the same thereafter remained under the self occupation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conscious, purposive and intentional usage of the aforesaid term "Property is let‟ in Sec. 23(1)(c) of the "Act‟, cannot be substituted by the term "house is actually let‟ as used by the legislature in all its wisdom in sub-section (3) of Sec. 23. Thus it can safely be concluded that the requirement "house is actually let‟ during the year is not a prerequisite for bringing the case of an assessee within the sweep of Sec. 23(1)(c) of the "Act‟, as long as the property is let in the earlier period and is found vacant for the whole year under consideration, subject to the condition that such vacancy of the property is not for self occupation of the same by the assessee, who continues to hold the said property for the purpose of letting out. We are in agreement with the aforesaid observations of the coordinate bench that the usage of the term "Property is let‟ in Sec. 23(1)(c) had purposively been used to exclude those properties from the ambit of the clause which are held by the owner for self occupation purposes, because even though the "ALV‟ of oneself occupied property so chosen by the assessee is taken at Nil, however the "ALV‟ of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in agreement with the aforesaid observations of the coordinate bench of the Tribunal, which we find, had while analyzing the scope and gamut of Sec. 23(1)(c) of the "Act‟, concluded that in light of the words "Property is let‟ used in clause (c) of Sec. 23(1) of the "Act‟, unlike the term "house is actually let‟ as stands gathered from a conjoint reading of sub-section (2) to (4) of Sec. 23, it can safely and rather inescapably be gathered that the conscious, purposive and intentional usage of the aforesaid term "Property is let‟ in Sec. 23(1)(c) of the "Act‟, cannot be substituted by the term "house is actually let‟ as used by the legislature in all its wisdom in subsection (3) of Sec. 23. Thus, it can safely be concluded that the requirement that the "house is actually let‟ during the year is not to be taken as a prerequisite for bringing the case of an assessee within the sweep of Sec. 23(1)(c) of the "Act‟, as long as the property is let in the earlier period and is found vacant for the whole year under consideration, subject to the condition that such vacancy of the property is not for self occupation of the same by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be let out and had remained vacant during whole of the year under consideration, but had never remained under the self occupation of the assessee, thus, no infirmity emerges from the computation of the "annual value‟ of the said property under Sec. 23(1)(c) of the "Act‟ by the assessee. 9. That in light of our aforesaid observations the Ground of appeal No. 1 and 2 of the assessee are allowed and the determination of the "annual value‟ of the property under consideration viz. Unit No. 401 & 425 of project Balaji Bhavan at Rs. 81,99,360/- by the A.O by taking recourse to Sec. 23(1)(a), which thereafter was sustained by the CIT(A), is vacated. The order of the CIT(A) is set aside in terms of our aforesaid observations. 10. The appeal of the assessee is allowed." 8. Since the facts in the instant case are identical to ones as decided in favour of the assessee by the Coordinate Bench vide order dated 19/09/2018 as reproduced above, we therefore set aside the order of the ld.CIT(A) and direct the AO to delete the addition resulting from estimation of deemed annual letting value in respect of vacant properties. Thus, this appeal of the assessee is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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