Itxa/759/2008 Of Bhansali International Private Limited v. Income Tax Officer - 8 (1) (2), Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.758 OF 2008ANDINCOME TAX APPEAL NO.759 of 2008ANDINCOME TAX APPEAL NO.866 OF 2008 Bhansali International Pvt. Ltd. ..Appellant. V/s. The Income Tax Officer..Respondent. Mr. P.J. Pardiwala, senior Advocate with A.K. Jasani for appellant.Mr. Suresh Kumar for respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 29TH AUGUST, 2009. P.C. :- 1.Heard learned senior counsel for the appellant and learned counsel appearing for revenue. All the appeals were admitted on 27/8/2008 on the following substantial questions of law:- 1. Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that the assessing officer rightly determined the annual rateable value of the property let out by the appellant at Rs.24,00,479/- ?was justified in law in holding that the assessing officer rightly determined the annual rateable value of the property let out by the appellant at Rs.24,00,479/- ? 2. Whether on the facts and in the circumstances of the case the annual rateable value for the purposes of sections 23(1)(a) of the Act should be different than that determined by the Municipal Authorities for the purpose of imposing property tax ?rateable value for the purposes of sections 23(1)(a) of the Act should be different than that determined by the Municipal Authorities for the purpose of imposing property tax ? 3. Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that the income from house property was to be computed under section 23(1)(a) of the Act as done by the Assessing Officer and not under section 23(1)(b) of the Act ? 2.The assessment year in question is A.Y. 2001-02. The Tribunal vide its order dated 11/4/2005 had remanded the matter to the assessing officer with direction to decide the issue issue afresh after considering the annual letting value as per municipal authorities and actual rent received by the assessee and other relevant facts and then pass necessary order as per law after hearing the assessee. It appears that even after remand, the assessing officer has taken the same view which was set aside by the Tribunal. The appeal went upto the Tribunal after crossing the hurdle of first appeal. The Tribunal has affirmed the order passed by the assessing officer which prima facie; in our view, travelled beyond the scope of the first remand order dated 11/4/2005. 3.Having heard both the parties, it is clear that the Tribunal has also not considered the judgment of this Court in the case of M.V. SonawalaV/s. CITreported in [1989] 177 ITR 246 or another judgment of this Court in the case of CIT V/s. J.K. Investors (Bombay) Ltd. reported in [2001] 248 ITR723. Both these judgments have not been taken into account by the Tribunal. It was also brought to the notice of the Tribunal the order passed in CIT V/s. Akshay Textiles Trading & Agencies P. Ltd. reported in [2008] 304ITR 401 (Bom), however, the same has also not been considered. 4.Considering the inconsistency in the orders, the impugned order is set aside looking to the consensus between the parties and the matter is remanded back to the assessing officer in the light of the judgments of this Court in M.V. Sonawala, J.K. Investors (Bombay) Ltd. and Akshay Textiles Trading & Agencies Ltd. referred hereinabove and the other judgments holding the field with one more clarification that the ratio of calculation of annual rateable value shall be based on the value determined by the municipal authorities. All other questions relating to the interpretation of law are kept open. 4.So far as Income Tax Appeal Nos.759 of 2008 and and 866 of 2008 are concerned, the impugned order is set aside for the reasons recorded in Income Tax appeal No.758 of 2008 and the matter is remanded back to the assessing officer. Court in M.V. Sonawala, J.K. Investors (Bombay) Ltd. and Akshay Textiles Trading & Agencies Ltd. referred hereinabove and the other judgments holding the field with one more clarification that the ratio of calculation of annual rateable value shall be based on the value determined by the municipal authorities. All other questions relating to the interpretation of law are kept open. 4.So far as Income Tax Appeal Nos.759 of 2008 and and 866 of 2008 are concerned, the impugned order is set aside for the reasons recorded in Income Tax appeal No.758 of 2008 and the matter is remanded back to the assessing officer. 5.All the petitions are disposed of accordingly with no order as to costs. (J.P.DEVADHAR, J.) (V.C.DAGA, J.)