TaxTMI 
TaxTMI 
2018 (10) TMI 1685
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....A) erred in adding additional income of Rs. 12,00,000/- (subject 10 deduction of 30%) on account of security deposit even though this addition was never made by the Assessing Officer and therefore amounts to enhancement without notice to the Appellant and also overlooking the judgment of CIT v/s MONI KLMAR SUBBA reported in (2011) 333 ITR 38 (Delhi)(FB). 3. In the facts and circumstances of the case and in law, the learned A.O, erred in initialing penalty u/s 27l(l)(c) and interest u/s 234. Relief Prayed: The appellant therefore prays as follows, 1. To delete the addition of Rs. 12,60,000/- under the head ''Income from House Property." 2. To quash the addition of Rs. 12,00,000/- made by the Commissioner of Income Tax(A) without notice of enhancement. 3. To delete penalty levied u/s 27l(l)(c) and interest charged u/s 234, The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. This appeal is filed in time and may please be allowed in full. A Detailed paper hook along with case laws will be submitted at the time of hearing." 3. The brief facts of the case are that t....
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....'ble ITAT in the assessee's own case for the A.Y. 2012-13 in ITA. No. 5354/M/2017 on record. The relevant finding has been given in para no. 5 & 6 which are reproduced below: - "5. I have heard the rival contentions and gone through the facts and circumstances of the case. The learned Counsel for the assessee Shri Bhupendra Shah argued on behalf of the assessee and on the other hand, the learned Sr. Departmental Representative, Shri P R Chauhan argued on behalf of Revenue. The learned Counsel for the assessee stated that the ALV computed by the AO under section 23(1)(a) of the Act and therefore confirmed by CIT(A) under section 23(1)(c) is without any basis and he stated that both the authorities below agreed that the property is covered under rent control Act as the Bombay is governed by rent Control Act and CIT(A) also agreed that the ALV of the property is more than the rateable value as determined by BMC. The learned Counsel for the assessee in view of this argued that once the property value is determined by Rent Control Act and ALV declared by assessee is in excess of market rateable value of BMC, no further fair market value of the property for the purpose of deemed....
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....ed by him from the deals and transactions and documents in relation thereto can be applied or whether a departure therefrom can be made, for example, because of the area, the measurement, the location, the use to which the property has been put, the access thereto and the special advantages or benefits. It is possible that in a high rise building because of special advantages and benefits an office or a block on the upper floor may fetch higher returns or vice versa. Therefore, there is no magic formula and everything depends upon the facts and circumstances in each case. However, we emphasize that before the Assessing Officer determines the rate by the above exercise or similar permissible process he is bound to disclose the material in his possession to the parties. He must not proceed to rely upon the material in his possession and disbelieve the parties. The satisfaction of the Assessing Officer that the bargain reveals an inflated or deflated rate based on fraud, emergency, relationship and other considerations makes it unreasonable must precede the undertaking of the above exercise. After the above ascertainment is done by the Officer he must, then, comply with the principles....
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.... is the income of the assessee till the determination or conclusion of the transaction. The Assessing Officer ought to be aware of several aspects and matters involved in such transactions. It is not necessary that if the license is for three years that it will operative and continuing till the end. There are terms and conditions on which the leave and license agreement is executed by parties. These terms and conditions are willingly accepted. They enable the license to be determined even before the stated period expires. Equally, the licensee can opt out of the deal. A leave and license does not create any interest in the property. Therefore, it is not as if the security deposit being made, it will be necessarily refundable after the third year and not otherwise. Everything depends upon the facts and circumstances in each case and the nature of the deal or transaction. These are not matters which abide by any fixed formula and which can be universally applied. Today, it may be commercially unviable to enter into a lease and, therefore, this mode of inducting a 'third party' in the premises is adopted. This may not be the trend tomorrow, therefore, we do not wish t....