SALONI JHAVERI, MUMBAI V. INCOME TAX OFFICER 2(3)(3), MUMBAI

ITA 225/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8176 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 09-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Section: 131

Judgement Text

P A G E | 1 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 225/MUM/2018 (ASSESSMENT YEAR: 2013 - 14 ) MRS. SALONI JHAVERI 17 - C, RUSHILA, CARMICHAEL ROAD, MUMBAI 400 026 VS. THE INCOME TAX OFFICER - 2(3)(3), ROOM NO. 555, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 PAN AAHPJ9691D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SANJAY PARIKH , A.R RESPONDENT BY: SHRI CHAITANYA ANJARIA , D.R DATE OF HEARING: 28 .06.2019 DATE OF PRONOUNCEMENT: 1 2 .07.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY TH E ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 6, MUMBAI, DATED 09.10.2017, WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC.143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), DATED 30.03.2016. THE ASSESSEE HAS ASSAILED THE ORDER OF THE CIT(A) BY RAISING BEFORE US THE FOLLOWING GROUNDS OF APPEAL: (A) ADDITION ON ACCOUNT OF INCOM E FROM HOUSE PROPERTY - RS. 5,62,867/ - (1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 6 (MUMBAI) [CIT(A)] ERRED ON FACTS AND IN LAW IN CONFIR MING THE ADDITION MADE BY THE INCOME TAX OFFICER - 2(3) (3), MUMBAI (AO) ON ACCOUNT OF INCOME FROM HOUSE PROPE RTY OF RS. 5,62,867/ - WITHOUT APPRECIATING THAT THE BUILDING AT ALIBAUG WAS NOT OWNED BY THE APPELLANT BUT WAS OWNED BY HER HUSBAND AND HENCE, NO INCOME FROM THE SAME COULD BE TAXED IN THE HANDS OF THE APPELLANT. P A G E | 2 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) 2. THE APPELLANT PRAYS THAT THE ADDITION OF RS. 5,62,867/ - AS MADE BY THE AO ON ACCOUNT OF INCOME FROM HOUSE PROPERTY AND CONFIRMED BY THE CIT(A), MAY BE DELETED. B) GENERAL 3) THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO ONE ANOTHER AND THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, DELETE OR MODIFY ANY OF THE ABOVE G ROUNDS OF A PPEAL. 2. BRIEFLY STATED, THE ASSESSEE HAD E - FILED HER RETURN OF INCOME FOR A.Y. 2013 - 1 4 ON 05.12.2013, DECLARING TOTAL INCOME AT RS.13,23,328/ - . SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER SEC.143(2). 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE A.O THAT A PERUSAL OF THE BA NK STATEMENTS OF THE ASSESSEE REVEALED THAT SHE HAD MADE CERTAIN PAYMENTS AGGREGATING TO RS.7,17,760/ - DURING THE PERIOD 09.04.2012 TO 10.11.2012 FOR ALIBAG RESIDENCE . ON A PERUSAL OF THE COPY OF AGREEMENT OF ALIBAG PROPERTY, IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE JOINTLY WITH HER HUSBAND VIZ. MR. ANAND JHAVERI HAD PURCHASED LAND AT VILLAGE : AWAS (NEAR ALIBAG) IN THE YEAR 2006 - 07, VIDE AN AGREEMENT DATED 25.09.2006 FOR A CONSIDERATION OF RS.80 LAC. A PERUSAL OF THE 7/12 EXTRACT DATED 11.09.2006 THAT WAS FURNISHED BY THE ASSESSEE REVEALED THAT THE NAME OF MR/MRS. BILLIM ORIA I.E THE SELLER OF THE LAND WAS THEREIN APPEARING. ON THE BASIS OF CERTAIN INQUIRIES CARRIED OUT BY THE A.O IT WAS GATHERED BY HIM VIZ. (I) THAT, THE PROPERTY WAS SITUATED AT AWAS BEACH NEAR ALIBAG; (II) THAT, THE LAND WAS NOT AN AGRICULTURAL LAND; (III) THAT, THE PROPERTY WAS A BIG F A RM HOUSE SPREAD OVER AN AREA OF 1 ACRE AND 5 GUNTHAS WITH FULLY DEVELOPED GARDEN ALONGWITH MANY OLD TREES; (IV ) THAT, THE F A RM HOUSE WAS NICELY CONSTRUCTED ALONGWITH A BIG SWIMMING POOL; AND (V) THAT, THERE WAS ONE FULL TIME WATCHMAN CUM CARETAKER WORKING IN THE PREMISES OF THE SAID PROPERTY. IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE THROUGHOUT THE YEAR UNDER C ONSIDERATION HAD INCURRED EXPENSES FOR UPGRAD ING THE AMENITIES IN RESPECT OF THE P A G E | 3 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) RESIDENTIAL HOUSE CONSTRUCTED ON THE LAND AT VILLAGE : AWAS. IN ORDER TO GATHER FURTHER DETAIL S AS REGARDS THE AFORESAID PROPERTY THE A.O ISSUED SUMMONS TO THE TALATHI AND GRO UP GRAM PANCHAYAT. AS PER THE DETAILS FURNISHED BY THE AFORESAID PERSONS, IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE HAD DURING THE YEAR PAID AN AMOUNT OF RS.37,133/ - AS HOUSE - TAX IN RESPECT OF THE AFORESAID RESIDENTIAL HOUSE AT VILLAGE AWAS. FURTHER, IT WAS INFORMED BY THE TALATHI THAT THE AGRICULTURAL LAND WAS CONVERTED INTO NON - AGRICULTURAL LAND IN THE MONTH OF OCTOBER, 2008. APART THERE FROM, THE A.O WAS INFORMED BY THE GROUP GRAM PANCHAYAT THAT PERMISSION TO CONSTRUCT A RESIDENTIAL HOUSE ON THE AFORE SAID LAND WAS GRANTED ON 29.04.2008. IN THE BACKDROP OF THE AFORESAID INFORMATION SO GATHERED, THE A.O RECORDED THE STATEMENT OF THE ASSESSEE U/S 131 OF THE ACT ON 22.03.2016 . I T WAS STATED BY THE ASSESSEE THAT THE LAND AT VILLAGE: AWAS WAS THOUGH JOINTLY OWNED BY HER ALONGWITH HER HUSBAND IN EQUAL SHARE EACH, HOWEVER, THE FARM HOUSE ON PART OF THE SAID LAND WAS CONSTRUCTED BY HER HUSBAND. FURTHER, SHE FURNISH ED THE DETAILS AS REGARDS THE INVESTMENT MADE TOWARDS THE PURCHASE OF LAND AND CONSTRUCTI ON OF BUILDING ON THE SAME VIZ. (I) COST OF LAND (JOINTLY OWNED ALONGWITH HER HUSBAND IN EQUAL SHARE EACH) : RS.1.60 CRORE; AND (II) COST OF CONSTRUCTION (BORNE BY HER HUSBAND) : RS.4 CRORE. A LSO, THE ASSESSEE PRODUCE D THREE AGREEMENT S IN RESPECT OF THE P URCHASE OF LAND AT VILLAGE : AWAS, WHICH WERE FOUND TO BE IN THE JOINT NAME OF THE ASSESSEE AND HER HUSBAND VIZ. MR. ANAND JHAVER I . THE A.O IN ORDER TO VERIFY THE INVESTMENT MADE IN THE AFORESAID PROPERTY REFERRED THE MATTER TO THE DISTRICT VALUATION OFFIC ER (FOR SHORT DVO). HOWEVER, AS PER THE ASSESSES OWN STATEMENT AND THE FACTS DISCERNIBLE FROM THE COPIES OF THE AGREEMENTS , THE A.O T OOK THE ASSESSES SHARE IN THE AFORESAID BUILDING AND THE LAND APPURTENANT THERETO AT 50% AND ACCORDINGLY WORKED OUT HER S HARE IN INVESTMENT AT RS.2.80 CRORES. ON THE BASIS OF HIS AFORESAID P A G E | 4 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) OBSERVATIONS THE A.O ESTIMATED THE ANNUAL LETTABLE VALUE (FOR SHORT ALV) OF THE AFORESAID PROPERTY AT RS.12 LAC S . ACCORDINGLY, THE A.O ASSESSED 50% OF THE ALV I.E RS.6 LACS IN THE HAND S OF THE ASSESSEE AND AFTER ALLOWING THE DEDUCTION FOR THE MUNICIPAL TAXES OF RS.37,133/ - THAT WAS PAID BY HER , THEREIN WORKED OUT HER SHARE OF INCOME AT RS.5,62,867/ - . IT WAS OBSERVED BY THE A.O THAT AS THE ASSESSEE HAD NOT CLAIMED THE BENEFIT OF DEDUCTIO N UNDER SEC.24 OF THE ACT ON THE DEEMED RENTAL VALUE, THEREFORE, AS PER THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZ ( INDIA ) LTD. VS. CIT (2006) 284 ITR 323 (SC) THE SAME COULD NOT BE ALLOWED TO HER. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). HOWEVER, THE CIT(A) NOT FINDING FAVOUR WITH THE CONTENTION S ADVANCED BY THE ASSESSEE UPHELD THE ORDER OF THE A.O AND DISMISSED THE APPEAL. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORD ER PASSED BY THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SUBMITTED , THAT THE LOWER AUTHORITIES HAD ERRED IN ASSESSING THE ALV OF THE RESIDENTIAL HOUSE THAT WAS OWNED BY THE HU SBAND OF THE ASSESSEE I.E MR. ANAND JHAVERI IN THE HANDS OF THE ASSESSEE. THE LD. A.R TAKING US THROUGH THE FACTS OF THE CASE SUBMITTED, THAT THE ASSESSEE ALONG WITH HER HUSBAND MR. ANAND JHAVERI HAD PURCHASED 11.12 ACRES (APPROX) OF AGRICULTURAL LAND AT A LIBAG FOR A TOTAL CONSIDERATION OF RS.128.96 LA C . IT WAS SUBMITTED BY THE LD. A.R THAT AS MR. ANAND JHAVERI WANTED TO CONSTRUCT A RESIDENTIAL HOUSE ON HIS PORTION OF LAND, THEREFORE, HE HAD GOT THE SAME CONVERTED INTO NON - AGRICULTURAL LAND AND HAD CONSTRUC TED A RESIDENTIAL HOUSE ON HIS SHARE OF LAND IN THE PERIOD RELEVANT TO A.Y. 2009 - 10 AND A . Y 2010 - 11. IT WAS SUBMITTED BY THE LD. A.R THAT THE INVESTMENT TOWARDS CONSTRUCTION OF THE RESIDENTIAL HOUSE P A G E | 5 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) WAS MADE BY THE ASSESSES HUSBAND. IT WAS SUBMITTED BY THE LD. A.R THAT THOUGH THE ASSESSEE WAS OWNER OF 50% OF THE LAND, HOWEVER, THE ENTIRE COST OF CONSTRUCTION OF THE RESIDENTIAL PROPERTY WAS BORNE BY HER HUSBAND. IN SUM AND SUBSTANCE, IT WAS THE CLAIM OF THE LD. A.R THAT AS THE HUSBAND OF THE ASSESSEE I.E MR. ANAND JHAVERI WANTED TO CONSTRUCT A F A RM HOUSE ON HIS PORTION OF LAND, WHILE FOR THE ASSESSEE WANTED TO CARRY OUT AGRICULTURAL ACTIVIT IES IN HER PORTION OF LAND, THEREFORE, IT WAS DECIDED THAT THE PORTION OF LAND ON WHICH THE F A RM HOUSE WOULD BE CONSTRUCT ED WOULD BELONG TO HER HUSBAND , AND THE BALANCE LAND WOULD BELONG TO THE ASSESSEE. IT WAS SUBMITTED BY THE LD. A.R THAT THE AFORESAID FACTS W ERE DULY STATED BY THE ASSESSEE IN HER REPLY TO QUERY NO. 20 OF HER STATEMENT RECORDED UNDER SEC. 131 OF THE ACT BY THE A.O ON 22.03.2016. IT WAS FURTHER SUBMITTED BY THE LD. A.R , THAT THE FACT THAT THE CONSTRUCTION WAS CARRIED OUT BY THE HUSBAND OF THE ASSESSEE WAS DULY BROUGHT ON THE RECORD OF THE V ALUATION OFFICER , VIDE LETTER DATED 22.08.2016 ALONG WITH THE COMPL ETE DETAILS OF EXPENSES AND THE COPY OF THE BANK STATEMENT OF HUSBAND OF THE ASSESSEE OUT OF WHICH THE SAME HAD BEEN INCURRED. IN ORDER TO SUBSTANTIATE HIS AFORESAID CONTENTION THE LD. A.R DREW OUR ATTENTION TO THE COPIES OF THE RETURNS OF INCOME AND THE C OMPUTATION S OF INCOME OF MR. ANAN D JHAVERI FOR THE A.Y 2013 - 14 AND A . Y. 2017 - 18 . I T WAS SUBMITTED BY THE LD. A.R THAT THE AFORESAID PROPERTY HAD REMAINED LET OUT IN THE PERIOD RELEVANT TO A.Y 2017 - 18, AND THE RENTAL INCOME ARISING THEREFROM WAS SHOWN IN TH E RETURN OF INCOME OF MR. ANAND JHAVERI I.E THE OWNER OF THE PROPERTY. IT WAS THE CLAIM OF THE LD. A.R THAT AS PER THE TRANSFER OF PROPERTY ACT, 1882, WHERE THE CONSIDERATION FOR PURCHASE OF AN IMMOVABLE PROPERTY IS PAID BY TWO OR MORE PERSONS, THE N , THE S AME WOULD BELONG TO THEM IN THE PROPORTION OF THEIR RESPECTIVE INVESTMENTS. ACCORDINGLY, IT WAS SUBMITTED BY THE LD. A.R THAT AS THE ENTIRE COST OF CONSTRUCTION OF THE F A RM HOUSE WAS MADE BY P A G E | 6 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) THE HUSBAND OF THE ASSESSEE I.E MR. ANAND JHAVERI , THEREFORE, THE SAME AS PER THE MANDATE OF LAW WAS TO BE TAKEN AS EXCLUSIVELY OWNED BY HIM . O N THE BAS IS OF THE AFORESAID CONTENTIONS IT WAS SUBMITTED BY THE LD. A.R THAT THE ADDITION OF THE ALV OF THE AFORESAID PROPERTY MADE IN THE HANDS OF THE ASSESSEE WHO WAS NOT THE OWNER OF THE AFORESAID RESIDENTIAL PROPERTY COULD NOT BE SUSTAINED AND WAS LIABLE TO BE VACATED . 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS SUBMITTED BY THE LD. D.R THAT AS TH E PROPERTY WAS JOINTLY OWNED BY THE ASSESSEE ALONG WITH HER HUSBAND, THEREFORE, THE CIT(A) HAD RIGHTLY CONCURRED WITH THE A.O THAT 50% OF THE ALV OF THE PROPERTY UNDER CONSIDERATION WAS LIABLE TO BE ASSESSE D IN THE HANDS OF THE ASSESSEE. 7. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE ALONG WITH HER HUSBAND VIZ. MR. ANAND JHAVERI HAD PURCHASED LAND ADMEASURING 11.12 ACRES AT VILL AGE : AWAS (NEAR ALIBAG ) FOR A TOTAL CONSIDERATION OF RS.128.96 LACS IN EQUAL SHARE EACH. AS IS DISCERNIBLE FROM THE RECORDS, I T IS THE CLAIM OF THE ASSESSEE THAT AS HER HUSBAND VIZ. MR. ANAND JHAVERI WANTED TO CONSTRUCT A RESIDENTIAL HOUSE ON HIS PORTIO N OF LAND, THEREFORE, HE HAD GOT HIS SHARE OF LAND CONVERTED INTO NON - AGRICULTURAL LAND AND HAD CONSTRUCTED A RESIDENTIAL HOUSE ON THE SAME. IT IS FURTHER CLAIMED BY HER THAT AS SHE WANTED TO CARRY OUT AGRICULTURAL ACTIVIT IES IN HER PORTION OF LAND, THEREF ORE, SHE HAD EXPLOITED HER SHARE OF LAND FOR THE SAID PURPOSE. ADMITTEDLY, THE AFORESAID CLAIM OF THE ASSESSEE IS DISCERNIBLE FROM HER REPLIES TO THE QUERIES WHICH WERE RAISED BY THE A.O WHILE RECORDING HER STATEMENT U/S 131 IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. IN ORDER TO FORTIFY HER AFORESAID CLAIM P A G E | 7 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) THAT SHE HAD EXPLOITED HER S HARE OF LAND FOR CARRYING OUT AGRICULTURAL OPERATION S , IT WAS STATED BY THE ASSESSEE IN HER STATEMENT RECORDED UNDER SEC .131 THAT SHE HAD PLANT ED CE RTAIN FRUIT BEARING TREES VIZ. M ANGOES, CHICKOO , COCONUTS, CATCHUE, INAMOM, PEPPER ETC. , WHICH WOULD TAKE A FEW YEARS TO YIELD FRUITS. FURTHER, IN ORDER TO DISPEL ANY DOUBT AS REGARDS THE VERACITY OF HER CLAIM THAT THE RESIDENTIAL HOUSE CONSTRUCTED ON A PART OF THE LAND AT VILLAGE : AWAS WAS EXCLUSIVELY OWNED BY HER HUSBAND I.E MR. ANAND JHAVERI, THE ASSESSEE HAD PLACED ON RECORD A COPY OF THE REPORT OF A REGISTERED VALUER, ALONG WITH THE COPIES OF THE BANK STATEMENTS WHICH AS CLAIMED BY HER REVEALED THE DETAILS OF EXPENSES THAT WE RE INCURRED BY HER HUSBAND TOWARDS CONSTRUCTION OF THE AFORESAID PROPERTY. IN SUM AND SUBSTANCE, IT HAS BEEN THE CLAIM OF THE ASSESSEE THAT AS HER HUSBAND HAD CONSTRUCTED THE RESIDENTIAL HOUSE ON HIS PORTION OF LAND AND THE COST OF CONSTRUCTION OF THE SAME WAS ALSO ENTIRELY BORNE BY HIM, THEREFORE, IT STOOD PROVED BEYOND ANY DOUBT THAT THE SAID HOUSE WAS EXCLUSIVELY OWNED BY HIM. ALSO, WE FIND THAT THE ASSESSEE IN ORDER TO CONCLUSIVELY PROVE THAT THE EXCLUSIVE OWNERSHIP OF THE AFORESAID PROPERTY WAS VESTED WITH HER HUSBAND I.E MR. ARVIND JHAVERI, HAD PLACED ON RECORD THE COPIES OF HIS INCOME TAX RETURNS ALONG WITH THE COMPUTATION S OF INCOME FOR A.Y 2013 - 14 AND A . Y 2017 - 18. THE LD. A.R DURING THE COURSE OF THE HEARING OF THE APPEAL HAD DRAWN OUR ATTENTION TO THE RETURN OF INCOME OF MR. ANAND JHAVERI FOR A.Y. 2013 - 14, WHICH REVEALED THAT THE ALV OF THE RESIDENTIAL HOUSE AT VILLAGE : AW AS (NEAR ALIBAG) WHICH DURING THE SAID RELEVANT PERIOD WAS SELF - OCCUPIED BY HIM WAS REFLECTED AT RS. NIL. APART THERE FROM, THE LD. A.R HAD ALSO TAKE N US THROUGH THE COPY OF THE RETURN OF INCOME OF THE ASSESSEE FOR A.Y. 2017 - 18. IT WAS SUBMITTED BY THE LD. A.R THAT AS THE RESIDENTIAL PROPERTY AT VILLAGE : AWAS (NEAR ALIBAG) HAD REMAI NED LET OUT IN THE PERIOD RELEVANT TO A.Y. 2017 - 18, THEREFORE , THE ENTIRE RENTAL RECEIPTS WERE OFFERED FOR P A G E | 8 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) TAX IN THE HANDS OF MR. ANAND JHAVERI, I.E THE OWNER OF THE AFORESAID PROPERTY. IN THE BACKDROP OF THE AFORESAID FACTS IT WAS SUBMITTED BY THE LD. A. R THAT THE OWNERSHIP OF THE AFORESAID RESIDENTIAL HOUSE H AD BEEN ACCEPTED BY THE REVENUE AS HAVING BEEN VESTED WITH THE HUSBAND OF THE ASSESSEE VIZ. MR. ANAND JHAVERI. 8. WE HAVE DELIBERATED AT LENGTH ON THE ISSUE UNDER CONSIDERATION IN THE BACKDROP OF THE MATERIAL AVAILABLE ON RECORD. AS REGARDS THE SUPPORT DRAWN BY THE LD. A.R FROM SEC. 45 OF THE TRANSFER OF PROPERTY ACT, 1882, IN ORDER TO IMPRESS UPON US THAT THE OWNERSHIP OF THE RESIDENTIAL PROPERTY AT VILLAGE : AWAS (NEAR ALIBAG ) WAS EXCLUSIVELY VESTED WITH THE HUSBAND OF THE ASSESSEE VIZ. MR. ANAND JHAVERI, WE ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE SAME. IN FACT, WE FIND THAT SEC.45 OF THE TRANSFER OF PROPERTY ACT, 1882 ENVISAGES THREE SITUATIONS VIZ. (I) THAT, WHERE AN IMMOVABLE PROPERTY IS TR ANSFERRED FOR A CONSIDERATION TO TWO OR MORE PERSONS AND SUCH CONSIDERATION IS PAID OUT OF A FUND BELONGING TO THEM IN COMMON, THEN THEY WOULD IN THE ABSENCE OF A CONTRACT TO THE CONTRA RY RESPECTIVELY BE ENTITLED TO INTEREST S IN SUCH PROPERTY IDENTICAL , AS NEARLY AS MAY BE, WITH THE INTEREST S TO WHICH THEY WERE RESPECTIVELY ENTITLED IN THE SAID COMMON FUND; (II) THAT, WHERE SUCH CONSIDERATION IS PAID OUT OF SEPARATE FUNDS BELONGING TO T HE SAID JOINT OWNERS THEN THEY WOULD IN THE ABSENCE OF A CONTRACT TO THE CONTRARY, RESPECTIVELY BE ENTITLED TO INTERESTS IN SUCH PROPERTY IN PROPORTION TO THE SHARES OF THE CONSIDERATION WHICH THEY HAD RESPECTIVELY ADVANCED ; AND (III) THAT, IN THE ABSENCE OF ANY EVIDENCE AS TO THE INTEREST S IN THE FUND TO WHICH THEY WERE R ESPECTIVELY ENTITLED, OR AS TO THE SHARES WHICH THEY HAD RESPECTIVELY ADVANCED, SUCH PERSONS SHALL BE PRESUMED TO BE EQUALLY INTERESTED IN THE PROPERTY. AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, IT IS A MATTER OF FACT BORNE FROM THE RECOR DS THAT THE ASSESSEE HAD FAILED TO PLACE ON RECORD ANY CLINCHING DOCUMENTARY EVIDENCE WHICH WOULD P A G E | 9 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) IRREFUTABLY SUBSTANTIATE HER CLAIM THAT THE LAND AT VILLAGE : AWAS (NEAR ALIBAG ) WHICH WAS JOINTLY OWNED BY HER ALONG WITH HE R HUSBAND IN EQUAL SHARE EACH W AS THEREAFTER DEMARCATED BY METES AND BOUNDS, PURSUANT WHERETO HER HUSBAND VIZ. MR. ANAND JHAVERI GOT VESTED WITH THE RIGHT TO EXCLUSIVELY CONSTRUCT A RESIDENTIAL HOUSE ON A SPECIFIC PORTION OF LAND , TO THE EXCLUSION OF ANY RIGHT OF THE ASSESSEE TOWARDS TH E SAME. AS CAN BE GATHERED FROM THE ASSESSMENT ORDER , THE LOCAL INQUIRIES MADE BY THE A.O IN THE COURSE OF THE ASSESSMENT PROCEEDINGS REVEALED THAT THE RESIDENTIAL HOUSE/F A RM HOUSE WAS CONSTRUCTED O N AN AREA OF 1 ACRE AND 5 GUNTHAS WITH FULLY DEVELOPED GAR DEN INSIDE WITH MANY BIG OLD TREES. ON THE BASIS OF THE AFORESAID FACTS, WE ARE OF A STRONG CONVICTION THAT IN THE ABSENCE OF ANY MATERIAL HAVING BEEN PLACE D ON RECORD BY THE ASSESSEE WHICH WOULD EVIDENCE THE DEMARCATION /PARTITION OF LAND AMONGST THE ASSESSEE AND HER HUSBAND VIZ. MR. ANAND JHAVERI, HER CLAIM THAT THE RESIDENTIAL HOUSE CONSTRUCTED ON PART OF SUCH LA ND WAS EXCLUSIVELY OWNED BY HER HUSBAND CANNOT BE ACCEPTED. ON THE BASIS OF THE FACTS AS ARE DISCERNIBLE FROM THE RECOR DS, IT CAN SAFELY BE CONCLUDED THAT THE RESIDENTIAL HOUSE AND THE LAND APPURTENANT THERETO FORM PART OF A FARM HOUSE THAT WAS DEVELOPED BY THE ASSESSEE AND HER HUSBAND AT VILLAGE : AWAS (NEAR ALIBAG) . ACCORDINGLY, I N OUR CONSIDERED VIEW AS THE LAND ON WH ICH RESIDENTIAL HOUSE HAD BEEN CONSTRUCTED IS JOINTLY OWNED BY THE ASSESSEE AND HER HUSBAND IN EQUAL SHARE EACH, THEREFORE, THE OWNERSHIP OF THE ASSESSEE AND HER HUSBAND IN THE SAID PROPERTY SHALL BE WORKED OUT ON THE BASIS OF THEIR RESPECTIVE INVESTMENT S MADE BY THEM TOWARDS VIZ. (I). PURCHASE OF LAND ; AND (II). CONSTRUCTION OF SUPER - STRUCTURE AND PROVISION OF AMENITIES ON THE SAME. WE THUS RESTORE THE MATTER TO THE FILE OF THE A.O WHO SHALL REWORK THE RESPECTIVE SHARE OF OWNERSHIP OF THE PROPERTY OF THE ASSESSEE AND HER HUSBAND VIZ. MR. ANAND JHAVERI IN TERMS OF OUR AFORESAID OBSERVATIONS. RESULTANTLY, THE P A G E | 10 ITA NO.225/MUM/2018 AY. 2013 - 14 MRS. SALONI JHAVERY VS. THE INCOME TAX OFFICER - 2(3)(3) A.O SHALL RESTRICT THE ADDITION AS REGARDS THE ALV OF THE PROPER TY IN THE HANDS OF THE ASSESSEE TO THE EXTENT OF HER SHARE OF OWNERSHIP IN THE SAID PR OPERTY THAT IS REWORKED OUT BY HIM HEREINABOVE. 9. THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRO NOUNCED IN THE OPEN COURT ON 1 2 .07.2019 S D / - S D / - ( SHAMIM YAHYA) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 12 .07.2019 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI