AI Drafter 
TaxTMI 
TaxTMI 
2021 (7) TMI 677
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....al for assessment year 2011-12 read as under : 1. The Learned CIT (Appeals) erred in confirming the reopening of the assessment order u/s. 148 as valid, inspite of all the facts disclosed and submission made by Appellant. 2. The Learned CIT (Appeals) erred in computing the ALV @ 8% of cost on the flat at Navi Mumbai. Whereas, it has failed to consider that the Appellant had no ownership right and the flat was under construction i.e. no possession was held by Appellant and proof for the same was filed before both the lower authorities Therefore, there is no question of any notional income when the flat was not in the possession of Appellant. 3. The Learned CIT (Appeals) erred in confirming the ALV of Yashodeep flat....
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....order of AO on the ground that the documentary evidence has not been produced by the assessee. 6. The order of the Ld. CIT(A) in this regard is as under:- It was contended by the AR of the appellant that the appellant had entered into an assignment agreement for purchase of flat at Navi Mumbai. Since the owner of the said flat was unable to give the possession of the said flat, the deal was cancelled in May, 2011. AO did not accept the above contention of the appellant and held that deemed rental income was assessable in appellant's hands and adopted the ALV at 8% of the cost of property. During the appellate proceedings, the appellant has not furnished any documentary evidence which could prove that the agreement entered in....
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....certificates from authorities were filed for evidence of the same. 11. On this issue, the assessee's plea that the said flat was not habitable and was in a ruinous condition was very much before the Ld. CIT(A). Ld. CIT(A) noted the plea that when the concerned house property was not in a position to be let out there cannot be any deemed notional rent for the same. For this proposition, he noted the reference by the assessee to several ITAT decisions. However, Ld. CIT(A) chose to display scant regard for judicial discipline. He did not at all refer whatsoever to the ratio emanating from the ITAT decisions. But, simply referred to the provision of the concerned section and Hon'ble Bombay High Court decision in case of Tiptop typogr....
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....hed by the appellant, it is found that the contention the appellant is found to be genuine,--Further, reliance is placed on the decision of the Hon'ble ITAT "G" Bench in the case of Saif All Khan Pataudi vs. ACIT-16(1), Mumbai bearing IT No. 5811/Mum/2016 for A.Y. 2012-13 wherein the facts and circumstances of the case are applicable to the appellant's case. The relevant portion of the order is reproduced below: "Now examining the present case, on the touchstone of above said facts, we come to the following conclusion: There were certain defects in the construction of the flat under the sanctioned plan, the removal of which was necessary. Letting out a house which is not constructed as per an approved plan cannot b....
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....rtion deduction should be allowed from the sum on which the property might reasonably be let out from year to year. We find that it is the plea of the assessee that due to inherent defects, the flat could not be let out. Hence, the flat remained vacant. Hence, the assessee has claimed benefit of section 23(1)(c) which duly permits deduction in this regard." Further and without prejudice, the appellant submitted that even if ALV is estimated, since the flat was vacant for the whole period of ownership, vacancy allowance u/s. 23(1)(c) should be allowed and hence even on this count no addition of ALV is justifiable. Further the appellant also relied on the decision of Bombay High Court in the case of Tip Top Typography 368 IT....
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.... 14. We note that the solitary plea of the assessee in this regard is that the notional rent should be restricted to the municipal ratable value. The AO has levied 8% of the cost as notional rent and CIT(A) has restricted the same to 6%. This, the Ld. CIT(A) did despite noting the Hon'ble Bombay High Court decision in the case of Tiptop topography and following which in case of another flat, he had directed that municipal ratable value should be adopted. 15. Considering the above, issue and going through the order of Ld. CIT(A) referred, we fail to understand as to why the Ld. CIT(A) has chosen again to exhibit his scant regard to the judicial discipline and not follow the Hon'ble Bombay High Court decision in the case of Tiptop....