Itxa/1452/2012 Of Commissioner Of Income Tax- 16 v. Ms. Daksha S. Wahal

itxa-1452-12.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1452 OF 2012 … Commissioner of Income Tax-16 ...Appellant v/s. Ms.Daksha S. Wahal ...Respondent … Mr.A.R.Malhotra with Mr.N.A.Kazi for the Appellant.Mr.Ameya Nargolkar with Mr.Abhineet Sharma i/b Pallavi Sharma for the Respondent. ... CORAM : S.C.DHARMADHIKARI & A.A. SAYED, JJ. DATED : 10 DECEMBER 2014 P.C. We have heard Mr.Malhotra for the Revenue in support of this Appeal, which challenges the order of the Income Tax Appellate Tribunal dated 16 March 2012 in Income Tax Appeal No.3894/Mum/2011 for the Assessment Year 2007-08. 2.The Four questions and which have been framed by the Revenue at pages 6 & 7 of the Paper Book are stated to be substantial questions of law. 3.In relation to questions Nos.6.1 and 6.2, we find that the Tribunal has relied upon its decision of Special Bench in the case of Manjula J. Mehta. That decision which was relied upon so as to itxa-1452-12.doc uphold the claim of the Assessee was appealed to this Court by the Revenue. Income Tax Appeal No.3378 of 2010 of the Revenue was dealt with and decided by the Division Bench of this Court. It rendered a judgment on 11 November 2011. The Division Bench upheld the view taken by the Special Bench of the Tribunal and dismissed the Revenue's Appeal. We are of the view that therefore these two substantial questions having been concluded and against the Revenue by this judgment, so also no contrary material being place on record, we proceed to dismiss this Appeal on these two questions. 4.In relation to other two questions, we find that the Tribunal has not decided them at all. The Tribunal has adverted to the contentions of parties and the findings of the Assessing Officer. However, the Tribunal concluded that the Commissioner has not examined as to whether two flats were being used as single residential unit. If no inquiry has been made by the Commissioner and equally on this issue by the Assessing Officer, then the Tribunal deemed it fit to remand the issue back to the Assessing Officer. It is, while remanding the issue, referred to the legal provisions namely deduction under section 54 of the IT Act. We do not find that any itxa-1452-12.doc observations, much less findings being rendered by the Tribunal and so as to bind the Assessing Officer either way. It is only sending back the issue for verification and scrutiny and whether the two flats are having only one kitchen and are being used as a single residential unit, we have no doubt that the Assessing Officer would consider the rival contentions, material on this issue but equally legal position and as noted in several decisions of this Court including the order passed in Income Tax Appeal No.2483 of 2011 decided on 10 June 2014. 5.With this clarification, we do not find that the Appeal raises any substantial questions of law. It is dismissed. No costs. (A.A. SAYED, J.) (S.C.DHARMADHIKARI,J.)