TaxTMI 
TaxTMI 
2023 (1) TMI 273
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....d in confirming the adjustments made in the Order u/s 14301) of the Income Tax Act, 1961 (the Act) by treating the commercial premises of the Appellant being Unit 3C, Cynergy. Prabhadevi, Mumbai 400 028 (said premises') as self-occupied property as per Section 23(2) of the Act. 2. In doing so, the learned CIT(A) has erred in concluding that since the Appellant does not have any self- occupied property in the captioned year, the said premises is to be treated as self-occupied; ignoring the claim of the Appellant in the return of income filed that said property is deemed let-out property. 3. The CIT (A) failed to appreciate the fact that the said premises is a commercial premises which was already on Departmental records of earlier and subsequent Assessment Years Le Assessment Year 2015-16 and Assessment Year 2017-18 wherein the Appellant was subjected to scrutiny assessment, and the said premises was accepted as deemed let out property. 4. The learned CIT(A) has also erred in restricting the deduction of Interest paid for acquisition of the said premises at Rs.2,00,000/- as per second proviso to Section 24(b) of the Act, as against Rs.1,31,39,560)- cla....
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....ew of the above, the Order of the CIT (A) be quashed, by holding it to be bad in law E. NOT ALLOWING CARRY FORWARD OF HOUSE PROPERTY LOSS TO SUBSEQUENT YEARS RS.1,08,81,242/- 13. On facts of case, the learned CIT (A) erred in not allowing carry forward of loss under the Head Income from House Property to subsequent years Rs.1,08,81,242/- u/s.71B of the Act, as claimed by the Appellant. 14. In view of above, the learned CIT(A) be directed to allow the carry forward of loss under the Head Income from House Property to subsequent years Rs.1,08,81,242/- as claimed by the Appellant. F. GENERAL 15. All the above Grounds of Appeal are independent of and without prejudice to each other. 16. The learned CIT (A)'s Order being contrary to the law, evidence and facts of the case should be set aside, quashed or modified on the grounds deduced above. 17. The Appellant craves leave to add, modify or delete any ground at or before the hearings." 3. The only grievance of the assessee is against denial of complete deduction of interest paid on the loan under section 24(b) of the Act and thereby not allowing carry forward of loss u....
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....s no self occupied property in the relevant A.Y. This very claim would empty that one property should be considered to be self-occupied. Therefore the AO proceeded correctly and no interference is called for. The restriction of Rs. 2,00,000/- in my considered view, is on right lines. Therefore, appeal is liable to be dismissed on this ground. 4.2.2 As regards the issue of carry forward of loss from House Property, since the loss is restricted to Rs. 2,00,000, carry forward of balance loss under the head "House Property" does not arise." Being aggrieved, the assessee is in appeal before us. 7. During the hearing, the learned Authorised Representative ('learned AR') submitted that the restriction on the allowability of interest payable on capital borrowed under 2nd proviso to section 24(b) of the Act is only applicable in case of residential property, however, in the present case the loan was taken by the assessee in respect of the commercial property. The learned AR further submitted that in assessment years 2015-16 and 2017-18, the Revenue has allowed the claim of deduction of interest under section 24(b) of the Act. 8. On the other hand, the learned Departmental ....
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....ression "new loan" means the whole or any part of a loan taken by the assessee subsequent to the capital borrowed, for the purpose of repayment of such capital." 10. Thus, under section 24(b) of the Act interest paid on capital borrowed for the purpose of acquisition, construction, repair, renewal, or reconstruction of property is allowable as a deduction. The 2nd proviso to section 24(b) of the Act restricts such deduction to Rs.2 lakh, in case of the property referred to in the 1st proviso. Further, the 1st proviso to section 24(b) of the Act deals with the property as referred to in section 23(2) of the Act. Section 23(2) of the Act reads as under: "(2) Where the property consists of a house or part of a house which- (a) is in the occupation of the owner for the purposes of his own residence; or (b) cannot actually be occupied by the owner by reason of the fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place in a building not belonging to him, the annual value of such house or part of the house shall be taken to be nil." 11. Thus, from the reading of section 23(2) of the Act....