2017 (9) TMI 1146

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.... being dispose off by this common order. 2. Grounds of appeal no.1,3 and 4 are not pressed at the time of hearing, hence dismissed as not pressed. 3. The issue raised in the grounds of appeal no.2 is against the confirmation of addition by CIT(A) as made by the AO u/s 23(1)(a) of the Act Rs. 2,14,665/-. 4. The facts in brief are that during the course of assessment proceedings, the AO noticed that the assessee has three registered properties (flats) appearing in the schedule of its fixed assets and these properties were not offered for tax under the head House properties. As a result, the AO treated the Otters flat no. 20/21-B as self occupied property and the other flats two namely Otters flat no.2B and Peace Heaven Flat were deem....

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.... part thereof has been let; ii) it has been vacant during the whole or any part of the previous year and iii) owing to such vacancy the actual rent received or receivable is less than the sum referred to in Clause(a). When these conditions are satisfied, the amount received or receivable shall deem to be the annual value of the property. In view of the said decision of the Andhra Pradesh High Court, the action of the A.O. in determining the annual value of the said properties at Rs. 2,14,665/ - (total investment being Rs. 38,33,296/-." 5. The ld.AR vehemently submitted that out of two flats treated as deemed let out, the flat no.2B was let out in 2003 but vacant since then and therefore the provisions of 23(1) (c) of the Act should not b....

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....king recourse to section 23(1)(c), or the same was liable to be determined under section 23(1)(a) as so held by the lower authorities. It is matter of undisputed fact that the property of the assessee remained let out upto 4-12-2008, and thereafter the same remained vacant. It is not the case of the department that after the property was vacated as on 4-12-2008, the same thereafter remained under the self occupation of the assessee. In light of the words 'Property is let' used in clause (c) of section 23(1), unlike the term 'house is actually let' as stands gathered from a conjoint reading of sub-sections (2) to (4) of section 23, it can safely and inescapably be gathered that the conscious, purposive and intentional usage o....

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....eafter remains vacant for the whole year under consideration, though subject to the condition that the same is not put under self occupation of the assessee and is held for the purpose of letting out of the same, would continue to be determined under section 23(1)(c). Thus the assessee in the present case had rightly determined the 'ALV' of the property at Rs. Nil by taking recourse to section 23(1)(c). [Para 7.1] In light of aforesaid observations the ground of appeal of the assessee is allowed and the addition made by the Assessing Officer and as such sustained by the Commissioner (Appeals) is vacated. [Para 7.2]" We therefore respectfully following the ratio laid down by the co-ordinate bench of the Tribunal direct th....