TaxTMI 
TaxTMI 
2012 (8) TMI 9
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd on facts in not appreciating that the assessee owned two properties out of which one was used for residential purpose and the other remained vacant during the year and therefore the ALV of the property other than that occupied by the assessee was rightly determined u/s 23(1)(a) r.w.s. 23(4)(B) of the Act, by the A.O. 4. On the facts and in the circumstances of the case, the ld. CIT(A) ought of AO be restored to the above extent." 3. Ground No.3 and 4 are general in nature hence require no adjudication. 4. Ground No.1 relates to addition of Rs.2,70,000/- made by the A.O. u/s 69 C of the Act on account of low household expenses. While making this addition the A.O. has observed as under:- "........After going through the reply filed it is seen that only Rs.2,70,000/- has been withdrawn for meeting the household expenses of the entire family. It is impossible to believe that theassessee had not made any expenditure for Personal Travel, Holiday Exps., purchase of jewellery & valuable items, no expenditure incurred on functions, ceremonies, entertainment or other events or servant expenses during the year and is also not using a mobile phone. Thus, it is seen that every month for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is required to be made in the absence of proper record maintained when an estimate is required to be made in the absence of a proper record maintained in that respect, probabilities cannot altogether be excluded from consideration (149 ITR 383). Basically, the exact expenditure or even a proper estimate of expenditure would only be in the knowledge of the assessee. If the assessee chooses to give evasive answers, then the ITO can draw an adverse inference regarding the suppression of material facts (149 ITR 533). Further, support for making the addition u/s 69C for low and inadequate withdrawals made by the assessee for meeting her house hold expenses is derived from the following decisions. 1. 80 TTJ (Ahd) 69 Shankerlal Nebhumal(HUF) 2. 90 Taxman 165 (Ahd) Ranchhodbhai Patel 3. 9 TTJ 539 (Ahd) B. V. Shah 4. 58 TTJ 340 (Del) Anilkumar 5. 40 TTJ 462 (Del) Ramaswarup Sabharwal 6. 15 TTJ 567 B.L. Rai 7. 17 TTJ (Jp) 231 Ramsing 8. 51 TTJ 436 (Jp) Shyamsuneder Gupta 9. 22 TTJ 547 (Del) Geetakumari Gupta." 5. In appeal ld. CIT(A) has deleted this addition by following the decision of Hon'ble ITAT in assessee's own case for the assessment year 2006-07. Aggrieved by this order of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he return of income she has not shown any income from property either as let out property or self occupied property. In her reply dated 16/11/2009 the assessee has stated in para-11 of her reply that "I had not shown S.O. property income during the year. The S.O. property was not completed in the Ass. Yr. 2007-08." This statement of the assessee is a false statement as it is an admitted position that the bunglow was ready in AY 2006-07 and possession of which was taken by the assessee in AY 2006-07. When this fact was pointed out to the assessee, the assessee admitted possession of the same in her letter dated 2/12/2009 and claimed that the annual income of the same (ALV) be taken at Rs.Nil as the bunglow was to be treated as a self occupied property. The claim of the assessee is not acceptable as it is not permitted by the provision of section 23(2) of the I.T. Act. Section 23(2)(a) is not applicable as the bunglow was not occupied and the use by the assessee of her own residence as it is an accepted fact that she was residing at Tenement No.1 Shahibaug with her entire family. Section 23(2)(b) is also not applicable to the facts of the case of the assessee as the conditions laid d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition u/s 23(1)(a) for Rs.5,17,120/- as property income of the IT Act 1961 without issuing any notices to me. So addition u/s.23(1)(a) made is illegal, bad in law and void ab initio. So addition of Rs.5,17,120/- for property income is to be deleted in toto." 9. After taking into consideration the above submissions of the assessee ld. CIT(A) deleted the addition by observing as under:- "I have considered the facts of the case, observation of the AO in the assessment order, submission made by the appellant and case laws relied upon by the appellant. The addition of Rs.5,17,120/- made on account of house property at Beverly Hill Co. Society Ltd., Ahmedabad has been made by the AO by taking the cost of acquisition of Rs.82,07,277/- and calculating 9% yield of the property at Rs.7,38,744/- and thereafter allowing deduction of Rs.2,21,623/- u/s 24 of the Act. From the details filed before me, I find that appellant is the sole owner of the property. The appellant in support of her contention has furnished the Municipal Bill for the financial years 2006-07, 2007-08 and 2008-09 to show that she was the sole owner and it was her self-occupied property. The appellant was not living in this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....verly Hill Co. Society Ltd., Ahmedabad and the other property Tenament No.1, Vrundavan Colony, Opp. Ghevar Complex, B/h. Rajasthan Hospital, Shahibaug, Ahmedabad is owned by her husband and therefore the provisions of Section 23(4)(b) of the Act are not attracted to the facts of this case and ld. CIT(A) has rightly taken the annual ALV of this property as NIL as per Section 23(2) of the Act. He, therefore, prayed that the order passed by ld. CIT(A) may kindly be upheld. 11. Heard both parties and perused the record. We find that an addition of Rs.5,17,120/- has been made by the A.O. in this case by invoking the provisions of Section 23(4)(b) of the Act assuming that the assessee was owner of two properties during the year under appeal. The assessee's contention has consistently been that she was owner of only one property which was vacant during the year under appeal as the same was not let out during the year and other property belongs to her husband. This fact is born out by the written submissions filed by the assessee on 2nd December, 2009 before the A.O. wherein it was clearly mentioned that the other property is owned by her husband. We have also gone through the papers file....