2025 (6) TMI 1121 - AT - Income Tax

ITAT deletes income addition for vacant commercial units, accepts assessee's competitive rate seeking claim

Classic Mall Development Company Limited Versus ACIT, Circle – 6 (2) (1), Mumbai

The ITAT Mumbai allowed the assessee's appeal regarding addition of income from house property for vacant commercial units. The AO had added income for ... Addition under the head Income from House Property in respect of vacant units during the year - HELD THAT:- It is seen that the vacant units, namely, S-29 and S-30 had been let out in AY.2016-17 and in AY.2018-19 onwards. Unit No.UG-28 was let out in AY.2019-20 onwards. Thus, claim of appellant that it was looking for prospective customers at competitive rate cannot be discarded. We find that similar addition was made by AO, which was confirmed by the CIT(A) in AY.2016-17. AO had added sum under the head “Income from house property” in respect of the vacant units of the commercial mall during the AY.2016-17. The addition was confirmed by the CIT(A). ITAT, Mumbai has discussed the facts, relevant provisions of the Act, CBDT Circular No.14 of 2001 and decisions of various Tribunals and Hon’ble Courts and thereafter, it deleted the addition made by the AO and allowed the appeal of the assessee. The issue in dispute is squarely covered in favour of the assessee by the decision of this Tribunal in its own case [2025 (4) TMI 140 - ITAT MUMBAI] for AY.2016-17. The revenue is unable to produce any material to controvert the aforesaid findings of this Tribunal. Assessee appeal allowed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this appeal are:(a) Whether the addition of Rs. 37,67,400 made under the head 'Income from House Property' in respect of eight vacant units during the assessment year 2017-18 is justified under section 23(1)(a) of the Income-tax Act, 1961 ('the Act') or whether the provisions of section 23(1)(c) apply, entitling the assessee to treat the annual value of such vacant units as Nil.(b) Whether the CIT(Appeals) erred in confirming the addition without providing the appellant a sufficient opportunity of being heard, particularly in passing an ex-parte order under section 250 of the Act.(c) Whether the delay of one day in filing the appeal before the Tribunal, beyond the prescribed period under section 253(3) of the Act, should be condoned.2. ISSUE-WISE DETAILED ANALYSISIssue (c): Condonation of Delay in Filing AppealRelevant Legal Framework and Precedents: Section 253(3) of the Act prescribes the time limit for filing an appeal before the Income Tax Appellate Tribunal (ITAT). Courts and Tribunals have consistently held that delay caused due to unavoidable circumstances or without negligence may be condoned in the interest of justice.Court's Interpretation and Reasoning: The appeal was filed one day beyond the prescribed deadline due to Eid-ul-Fitar, a public holiday. The Tribunal found that the delay was neither deliberate nor due to negligence on the part of the assessee.Application of Law to Facts: Considering the reasonable cause for delay, the Tribunal exercised its discretion to condone the delay and admit the appeal for hearing.Conclusion: Delay of one day in filing the appeal was condoned in the interest of justice.Issue (a): Legitimacy of Addition on Account of Income from Vacant Units under Section 23(1)(a) vs. Section 23(1)(c)Relevant Legal Framework and Precedents: Section 23(1)(a) of the Act states that the annual value of a property shall be the gross annual value, which is the higher of actual rent received/receivable or reasonable expected rent. Section 23(1)(c) provides that if a property is vacant throughout the year, the annual value shall be Nil. CBDT Circular No.14 of 2001 and various judicial precedents have interpreted these provisions in the context of commercial properties and vacancy allowance.Precedents relied upon include:Classic Mall Development Company Limited vs. ACIT (ITA No. 5320/Mum/2024)Premsudha Exports Pvt. Ltd. vs. ACITITO vs. Metaoxide P. Ltd.ACIT vs. Dr. Prabha SanghiInformed Technologies India Ltd. vs. DCITSonu Realtors P. Ltd. vs. DCITPriyananki Singh vs. ACITThe Phoenix Mills Ltd. vs. DCITCourt's Interpretation and Reasoning: The Assessing Officer (AO) had made an addition on the premise that the vacant units should be deemed to have earned reasonable expected rent under section 23(1)(a). The AO rejected the assessee's claim under section 23(1)(c) that the units were vacant throughout the year and that the rent receivable was Nil. The CIT(A) upheld the AO's view, noting lack of evidence of active efforts to let out the units.However, the Tribunal examined the facts and found that the vacant units were let out in the subsequent assessment years, indicating bona fide efforts to find tenants. The Tribunal relied heavily on its own earlier decision for AY 2016-17 in the appellant's case, where a similar addition was deleted after detailed consideration of facts and law. The Tribunal noted that the appellant's business of operating commercial complexes naturally entails efforts to let out premises, and it would be unreasonable to assume that the assessee intended to keep units vacant deliberately.The Tribunal also referred to the CBDT Circular No.14 of 2001 which clarifies that when a property remains vacant for the whole year, the annual value under section 23(1)(c) is Nil. The Tribunal emphasized that the provision is a deeming provision and overrides the general rule in section 23(1)(a) where the property is vacant throughout the year despite efforts to let it out.Key Evidence and Findings: The vacant units in question were let out in subsequent years, supporting the assessee's contention of active efforts to find tenants. The assessee's business nature and the fact that no tenant was available for the entire year justified application of section 23(1)(c).Treatment of Competing Arguments: Revenue's argument that the addition was justified under section 23(1)(a) was rejected due to lack of evidence that the units were not genuinely vacant or that the assessee did not attempt to let them out. The Tribunal found the AO's assumption that the premises were not intended to be let out as erroneous and contrary to the commercial realities of running a mall.Conclusion: The Tribunal held that the annual value of the eight vacant units for AY 2017-18 is Nil under section 23(1)(c). The addition made by the AO and confirmed by the CIT(A) was deleted.Issue (b): Alleged Violation of Principles of Natural Justice by Passing Ex-Parte OrderRelevant Legal Framework: Section 250 of the Act requires that the appellate authority provide an opportunity of hearing before passing an order. Principles of natural justice mandate that no order should be passed without giving the party a reasonable opportunity to be heard.Court's Interpretation and Reasoning: The assessee contended that the CIT(A) passed an ex-parte order without providing sufficient opportunity. However, the Tribunal's order does not elaborate extensively on this ground, implying either that the issue was not pressed or found to be unsubstantiated on the record.Application of Law to Facts and Conclusion: Since the appeal was allowed on merits and the Tribunal set aside the CIT(A) order, any procedural infirmity in hearing was rendered academic. The Tribunal did not find it necessary to interfere separately on this ground.3. SIGNIFICANT HOLDINGSThe Tribunal's crucial legal reasoning is encapsulated in the following verbatim excerpt from its own earlier decision for AY 2016-17, which was applied by analogy to the present case:'It is obvious that the assessee would have taken sufficient efforts to let out the property. No reasonable business person would not want to let out its premise at the loss of revenue, if any opportunity exists. Accordingly, Assessing Officer's assumption that the properties were not intended to be let out was held to be erroneous one. It was also noted that the vacant premises were let out in the subsequent year thus, concluded that the premises were intended to be let out. It was also concluded that since the property were vacant for the whole year, in view of the provisions contained in section 23(1)(c), assessee is entitled to vacancy allowance and thus, the addition made by the ld. Assessing Officer was deleted.'Core principles established include:The applicability of section 23(1)(c) overrides section 23(1)(a) when a property remains vacant throughout the year despite genuine efforts to let it out.Deemed annual value under section 23(1)(c) is Nil for such vacant properties.Assumptions by Assessing Officers regarding intention to let out property must be based on evidence and commercial realities, not mere conjecture.Subsequent letting out of vacant units is strong evidence of bona fide efforts to find tenants.Final determinations on the issues are:The appeal delay of one day is condoned.The addition of Rs. 37,67,400 under 'Income from House Property' on account of vacant units is deleted as the annual value is Nil under section 23(1)(c).The CIT(A) order confirming the addition is set aside.The appeal is allowed in favour of the assessee.