INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI J. S. REDDY, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 2853 TO 2860/DEL/2004 (ASSESSMENT YEARS: 1991 - 92, 1994 - 95 TO 2000 - 01) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 23(1), NEW DELHI VS. ESTATE OF ABANASH KAUR THROUGH LEGAL/ ADMINISTRATOR/ EXECUTOR OF (1) SURJEET KAUR GILL, (2) ADARSH KAUR GILL, (3) GURMEET SINGH GILL & (4) NURIAL KAUR GILL, G - 1, MASJID MOTH, NEW DELHI (APPELLANT) (RESPONDENT) ITA NO. 3124/DEL/2004 (ASSESSMENT YEAR: 2000 - 01) ESTATE OF LATE ABANASH KAUR THROUGH LEGAL HEIRS MRS. SURJIT KAUR GILL & GURMEET SINGH GILL, MASJID MOTH, NEW DELHI VS. ACIT, CIRCLE 23(1), NEW DELHI APPELLANT RESPONDENT CO NO. 187/DEL/2004, 60 TO 66/DEL/2007 (ASSESSMENT YEARS: 1991 - 92, 1994 - 95 TO 2000 - 01) ESTATE OF LATE ABANASH KAUR THROUGH LEGAL HEIRS MRS. SURJIT KAUR GILL & MR. G. S. GILL, G - 1, , MASJID MOTH, GREATER KAILASH - II, NEW DELHI VS. ACIT, CIRCLE 23(1), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D. K. MISHRA, CIT DR RESPONDENT BY: SMT BHARAT BERIWAL, ADV. O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THESE APPEAL S ARE PREFERRED BY THE REVENUE AS WELL AS BY TWO OF THE LEGAL HEIRS OF LATE ABNASH KAUR AGAINST A CONSOLIDATED ORDER OF LD CIT(A) DATED 26.03.2004, AFTER HEARING SEPARATELY BOTH SETS OF LEGAL HEIRS. AGGRIEVED BY THE ORDERS PASSED BY THE LD CIT(A) TWO OF THE LEGAL HEIR S OUT OF THE SURVIVING FOUR LEGAL HE IRS , SMT SUJIT KAUR GILL & SHRI GURNIR SINGH GILL PREFERRED AN APPEAL BEFORE US BEING PAGE NO. 2 ITA NO. 3124/DEL/2004 DATED 05.07.2004 AND THE REVENUE PREFERRED APPEALS BEINGS ITA NOS. 2853 TO 2860/DEL/2004. SMT SURJIT KUMAR GILL AND SHRI GURNIR SINGH ALSO FILED CROSS - O BJECTIONS IN THE REVENUES APPEAL BEING C.O. NO. 187/DEL/2004 AND 60 - 66 . DEL/2007. 2. THE GROUNDS OF APPEAL OF REVENUE ARE AS STATED BELOW: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT(A) HAS ERRED IN DELETING (I) ADDITION MADE BY THE A.O. FOR ASSESSMENT YEAR 1991 - 92 AND 1994 - 95 TO 2000 - 01 ON ACCOUNT OF RENT RECEIVED BY SMT ADARSH KAUR GILL (II) ADDITION ON ACCOUNT OF NOTIONAL INCOME FOR SELF OCCUPANCY FOR ASSESSMENT YEAR 1994 - 95 TO 1997 - 98. IN RESPECT TO ADMISSIO N OF PB FILED BY SMT ADARSH KAUR AND HER DAUGHTER NURID KAUR GILL, WRIT PETITION NO. (C)496/2009) WAS FILED BY SMT SURJEET KAUR GILL AND SHRI GURMEETSINGH GILL BEFORE THE HONBLE HIGH COURT OF DELHI, WHICH WAS DISPOSED OF 04/02/2009 DIRECTING THE TRIBUNAL TO FIRST DISPOSE OF THE OBJECTION IN RESPECT OF ADMISSION OF PB FILED ON BEHALF OF SMT ADARSH KAUR AND NURIEL KAUR GILL. THE TRIBUNAL VIDE ORDER DATED 23 RD DECEMBER 2009 ADMITTED THE PB ON RECORD CITING THAT THERE WAS NO ADDITIONAL EVIDENCE AND AS A MATTER OF FACT WERE ALL RECORDS AND ORDERS WHICH WERE ALREADY IN PUBLIC DOMAIN AND IN THE RECORDS OF THE DEPARTMENT. THE GROUND OF APPEAL RAISED BY THE INTERVENER APPELLANT IN ITA NO. 3124/DEL/2004 LEGAL HEIRS MRS. SURJIT KAUR GILL AND AND G URNIR SINGH GILL ARE (I) THAT THE ORDER OF LD CIT(A) - XVII IS WRONG ILLEGAL AND AGAINST THE FACTS OF THE CASE. (II) THAT THE LD CIT(A) HAS ERRED IN REVERSING THE FINDING OF THE ASSESSING OFFICER AND DETERMINING INCOME FROM 3 - SOUTH END ROAD, NEW DELHI AT RS. 1500/ - PER MONTH. (III) THAT ALL OBSERVATIONS, FINDINGS INCLUDING THE FINDING THAT THE 3 - SOUTH ROAD IS LET OUT OF RS. 1500/ - PER MONTH, THE TENANCY CONTINUES AFTER THE DEMISE OF SMT ABNASH KAUR ETC OR PERVERSE, NOT BASED ON GENUINE FACTS AND EVIDENCES, BASED ON ERRONEOUS FAC TS, MISREPRESENTATION, BASED ON SURMISES AND CONJECTURES. (IV) THAT ALL THE ADVERSE FINDINGS CONTRARY TO THE PLEADING OF THE ESTATE ABNASH KAUR ARE WRONG PERVERSE INVALID, OPPOSED TO THE EVIDENCE ETC. (V) THAT THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND OR ALTER OR TO SUBSTITUTE OR TO WITHDRAW ANY OF THE GROUNDS OF THE APPEAL OR BEFORE THE DATE OF DISPOSAL OF THE APPEAL. 3. THE GROUNDS RAISED IN THE CROSS OBJECTIONS NOS . 60 - 66/DEL/2007 BY THE LEGAL HEIRS SMT SURJIT KAUR GILL AND SHRI. GURMIT SINGH GILL IS AS FOLLOWS: - 1. THAT THE ORDER OF THE LEARNED CIT(A) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THAT THE LEARNED CIT(A) EVEN AFTER HOLDING THAT THE ESTATE CONTINUES TO BE UNDIVIDED ERRED IN DIRECTING THE EXCLUSION OF RENT RECEIVED BY SMT. ADARSH KAUR GILL FROM THE ALLEGED SUBLETTING OF PROPERTY NO. 3, SOUTH END PAGE NO. 3 ROAD, NEW DELHI IN CLEAR VIOLATION OF THE PROVISIONS OF SECTION 168 OF THE IT ACT, 1961. 3. THAT THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE O RIGINAL OF THE ALLEGED LEASE AGREEMENT DATED 1811.1958 BETWEEN LATE SMT. ABNASH KAUR AND SMT. ADARSH KAUR GILL WAS NOT PRODUCED AT ANY STAGE OF THE PROCEEDINGS AND THE SAME CANNOT BE READ INTO EVIDENCE MORE SO WHEN THE ORIGINAL DOCUMENT HAS NOT SEEN THE LI GHT OF THE DAY EVEN TILL DATE. 4. THAT THE LEARNED CIT(A) ERRED BOTH ON FACTS AND IN LAW IN DIRECTING THE EXCLUSION FROM THE INCOME OF THE ESTATE THE RENT RECEIVED BY SMT. ADARSH KAUR GILL FROM THE ALLEGED SUB - LETTING ON THE GROUND THAT THE SAID RENTAL IN COME HAD ALREADY BEEN TAXED IN HER HANDS OF THE APPROPRIATE ASSESSEE AND WHICH IN THIS CASE WAS THE ESTATE OF THE DECEASED. 5. THAT THE LEARNED CIT(A) HAS FURTHER ERRED IN CONSIDERING ADDITIONAL EVIDENCE PRODUCED ON BEHALF OF SMT. ADARSH KAUR GILL IN VIOL ATION OF RULE 46 - A BY NOT RECORDING ANY REASONS FOR ADMITTING SUCH ADDITIONAL EVIDENCE AND NOT GIVING ANY OPPORTUNITY TO THE A.O. 6. THE CROSS - OBJECTOR RESERVES THE RIGHT TO ALTER/ VARY/ MODIFY ANY OF THE GROUNDS RAISED OR TO WITHDRAW OR FILE ANY ADDITION AL GROUND PRIOR TO OR DURING THE HEARING. 4. THE GROUND OF APPEAL OF SMT SURJEET KAUR GILL AND SHRI GURMEET SINGH GILL ARE AS BELOW: - 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (A), - XVII IS WRONG ILLEGAL AND AGAINST THE FACTS OF THE CA SE. 2. THAT THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN REVERSING THE FINDING OF THE ASSESSING OFFICER AND DETERMINING INCOME FROM 3 - SOUTH END ROAD, NEW DELHI AT RS. 1,500/ - PER MONTH. 3. THAT ALL OBSERVATIONS, FINDINGS INCLUDING THE FI NDING THAT THE 3 SOUTH END ROAD IS LET OUT OF RS. 1,500/ - PER MONTH, THE TENANCY CONTINUES AFTER THE DEMISE OF SMT. ABNASH ETC. OR PERVERSE, NOT BASED ON GENUINE FACTS AND EVIDENCES, BASED ON ERRONEOUS FACTS, MIS - PRESENTATION , BASED ON SURMISES AND CONJECT URES. 4. THAT ALL THE ADVERSE FINDINGS CONTRARY TO THE PLEADING OF THE ESTATE ABNASH KAUR ARE WRONG PRESERVE INVALID, OPPOSED TO THE EVIDENCE ETC. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND OR TO ALTER OR TO SUBSTITUTE OR TO WITHDRAW ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF DISPOSAL OF THE APPEAL. 5. THE SUBSTANTIVE QUESTION AND COMMON GROUND BEFORE US IS WHETHER THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER FOR ASSESSMENT YEAR 1991 - 92 AND 1994 - 95 TO 2000 - 01 BY INCLUDING THE RENTAL INCOME RECEIVED BY SMT. ADARSH KAUR GI LL ON ACCOUNT OF SUB - LETTING THE PROPERTY NO. 3, SOUTH END ROAD, NEW DELHI IN THE HANDS OF THE ESTATE THROUGH THE LEGAL HEIRS OF IT. 6. BRIEF FACTS OF THE CASE IS THAT LATE SMT. ABNASH KAUR WAS THE 2 ND WIFE OF SHRI SETH SHIV PR ASAD. SHE PURCHASED A PROPER TY WHICH IS PROPERT Y NO. BUNGLOW NO. 3, SOUTH END ROAD, NEW DELHI FOR RS. 2,50,000/ - VIDE SALE DEED DATED 17.01.1956 AND PAGE NO. 4 REGISTERED IT ON 30.01.1957, WHICH IS THE BONE OF CONTENTION IN THIS CASE AND SEVERAL CASES GOING ON FROM THE YEAR 1961 ONWARDS. 7 . SHE ( SMT. ABNASH KAUR) DECIDED TO CONSTRUCT A FLOOR ON THE AFORE SAID PROPERTY AND FOR FINANCING THE SAME SHE MORTGAGED THE SAID PROPERTY IN FAVOUR OF SMT. SUSHILA DAPHTARY AND SHRI ANIL DAFTARY FOR A SUM OF RS. 1,98,000/ - . BESIDES THE ENTIRE PROPERTY ALON G WITH THE ADDITIONAL CONSTRUCTION WAS INSURED BY SMT. ABNASH KAUR FOR A TOTAL VALUE OF RS. 2,50,00 FOR A YEAR IN NOVEMBER 1959. 8 . IN THE YEAR 1957, SHRI SETH SHIV PRASAD PASSED AWAY. THEN ON 11TH JULY 1960 THE OFFICIALS FROM RECOVERY DEPARTMENT OF DISTRICT COLLECTION OFFICER, DELHI VISITED THE PROPERTY FOR ATTACHING THE SAME TOWARDS THE RECOVERY ON INCOME TAX DUES AMOUNTING TO RS. 23,37,547.45 FROM THE ALLEGED LATE SHRI SETH SHIV PRASAD . IT WAS ALLEGED THAT IN ORDER TO OVERCOME THE SITUATION, THE SAID PROPERTY WAS SHOWN AS BEING LET OUT BY SMT. ABNASH KAUR TO HER SISTER SMT. ADARSH KAUR WITH A RIGHT TO SUBLET THE SAME; BUT NO LEASE DEED WAS FILED AS PART OF THE OBJECTION BEFORE THE DISTRICT COLLECTION OFFICER, NOR BEFORE THE CONCERNED INCOME TAX OFFICER. IN FACT THE PROPERTY WAS GIVEN ON A LEAVE AND LICENSE BASIS TO THE VIETNAM EMBASSY BY SMT. ADARSH KAUR ON BEHALF OF SMT. ABINASH KAUR BY AN AGREEMENT DATED 19.01.1961 AT A MONTHLY RENT OF R S. 4,500/ - (1 ST FEBRUARY 1961 TO DECEMBER 1963) . 9 . IN 1963 MRS. ABINASH KAUR ENTERED INTO AN AGREEMENT FOR THE SALE OF THE SAID PROPERTY TO ONE SHRI JASWANT RAI FOR A CONSIDERATION OF RS. 9,35,000/ - . B OTH THE FACTS OF MORTGAGE AS WELL AS THE LEASE WERE DISCLOSED TO THE PURCHASER. 10 . LATER THE SAID SALE DID NOT MATERIALIZE AND SUBSEQUENTLY THE PROPERTY WAS LEASED OUT TO THE EMBASSY OF GERMAN DEMOCRATIC REPUBLIC FROM 1 ST JANUARY 1964 TILL DECEMBER1990. IN B ETWEEN ON 6TH FEBRUARY 1973, M R S ABINASH KAUR DREW UP A REGISTERED WILL IN WHICH THE BROTHER OF ABINASH KAUR, MR. AJIT SINGH WAS NAMED AS THE ADMINISTRATOR AND THE EXECUTOR OF THE WILL AND NAMED SIX BENEFICIARIES. MS. ABINASH KAUR DIED ON 1 0 - 0 6 - 1976 LEAVING BEHIND SIX BENEFICIARIES UNDER HER REGISTERED WILL DATED 06.02.1973, BEQUEATHING 1/6TH TO EACH OF HER SIX BENEFICIARIES IN THE PROPERTY TO THE FOLLOWING : - (I) SH. AJIT SINGH ,(II) MRS. ADARSH KAUR GILL , (III) MS. NURIAN KAUR GILL, (IV) MRS. SURJEET KAUR GILL , (V) SH. GURMEET SINGH GILL , (VI) SH. KAMAL KISHORE BINDAL THE CHART GIVEN BELOW WILL SHOW THE LEGAL HEIRS AND THEIR RELATION WITH LATE SMT. ABNASH KAUR, TO THE ESTATE AS PER THE REGISTERED WILL : - PAGE NO. 5 LATE MRS. ABNASH KAUR OWNER OF THE PROPERTY ( DIED IN 1976) MR. ADARSH KAUR (SISTER) MRS. SURJIT KAUR (SISTER) LATE MR. AJIT SINGH (BROTHER) LATE MR. KAMAL KISHORE BINDAL (SON) (DIED ON 12.10.2000) (DIED ON 15.12.1995) NURAIN KAUR GURNIR SINGH GILL (DAUGHTER) (SON) 11 . FROM THE RECORDS , IT IS UNDERSTOOD THAT FROM THE INCEPTION ITSELF, INCOME TAX AUTHORITIES OF SMT. ABNASH KAUR DID NOT ACCEPT THE LEASE AGREEMEN T BETWEEN SMT. ABNASH KAUR AND SMT. ADARSH KAUR; AND WHEN ASSESSING SMT. ABNASH KAUR, THE ITO USED TO COMPUTE THE ACTUAL RENTED INCOME RECEIVED BY SMT. ADARSH KAUR INSTEAD OF HER LEASE AGREED RENT OF RS. 500/ - (LATER RS. 1500/ - ) FROM SMT. ADARSH KAUR WHICH SHE RECEIVED . THE DISPUTE IN RESPECT TO THE ALV TRAVELLED TO THE ITAT AND THE ITAT UPHELD THE GROUND RAISED BY SMT. ABNASH KAUR AND HELD THE ALV AS RS. 6,000/ - PER ANNUM AND LATER ON WHEN THE LEASE AGREEMENT RATE BETWEEN SMT. ABNASH KAUR AND SMT. ADARSH KAUR WAS INCREASED TO RS. 1,500/ - ALV WAS FIXED AS RS. 18,000/ - PER ANNUM. 12 . IN BETWEEN WHEN THE AMOUNT BORROWED FROM THE MORTGAGEES ( SMT. SUSHILA AND SHRI ANIL DAPHATRY) WAS NOT REPAID, LITIGATION STARTED IN DECEMBER 1963 AND SUIT NO. 332/1963 W AS FILED IN THE DISTRICT COU RT OF DELHI AND LATER BY A COMPROMISE DECREE DATED 20.02.1978 (SIX LEGAL HEIRS WAS ASKED TO PAY), THE AMOUNT OF RS. 3,60,000/ - WAS GIVEN BACK TO SMT . SUSHILA AND SHRI ANIL DAPHATRY AND THEY REDEEMED THE MORTGAGE. THE ENTIRE AMO UNT WAS SUPPOSED TO HAVE BEEN PAID BY SMT . ADARSH KAUR FROM MAY 1978 TO 1979. THE OPERATIVE PORTION OF THE COMPROMISE DECREE BY THE HONBLE PUNJAB AND HARYANA HIGH COURT, CIRCUIT BENCH AT DELHI IN RFA (OS) NO. 11/1971IS AS FOLLOWS: - IN ORDER TO AVOID ANY POSSIBLE DISPUTE AMONGST THE APPELLANTS THEMSELVES, IT IS RECORDED THAT ALL THE OTHER APPELLANTS WILL BE BOUND TO CONTRIBUTE TO ANY SUMS THAT MAY BE PAID BY MRS. ADARSH KAUR GILL PURSUANT TO THIS COMPROMISE, AND THAT AFTER PAYMENT SHE WILL BE ENTITLED TO RECOVER THEIR PROPORTIONATE SHARE FROM THE OTHER APPELLANTS. IF THE COMPROMISE IS CARRIED OUT, THEN ON PAYMENT OF THE OF THE AMOUNTS HEREBY AGREED TO BE PAID, THE MORTGAGE DEEDS AND LITTLE DEEDS SHALL BE RETURNED TO MRS. ADARSH KAUR G ILL AND THE MORTGAGED PROPERTY SHALL BE DEEMED TO HAVE BEEN REDEEMED BY HER AND SHE WILL BE SUB MORTGAGED TO RIGHTS OF THE MORTGAGES, AND SHALL BE ENTITLED TO RECOVER THE FULL DECRETAL AMOUNT FROM THE OTHER APPELLANTS AS IF THIS COMPROMISE HAS NOT BEEN MAD E PAGE NO. 6 AND THE APPEAL HAD BEEN DISMISSED WITH INTEREST ACCRUED DUE TILL THE DATE OF PAYMENT BY THEM. IT IS HEREBY RECORDED THAT THE APPELLANTS OTHER THAN MRS. ADARSH KAUR GILL HAS ALSO AGREED TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE COMPROMISE H EREIN RECORDED. 13 . AS PER THE AFORE SAID COMPROMISE DECREE, SMT. ADARSH KAUR CLAIMS TO HAVE SUBROGATED INTO THE SHOES OF THE MORTGAGE E , SINCE SHE HAS REPAID THE AMOUNT DUE TO MRS. SUSHILA AND MR. ANIL DAPHATRY . 14 . THOUGH LATE ABNASH KAUR DIED IN 1976 AND LEFT A WILL APPOINTING HER BROTHER AJIT SINGH AS THE ADMINISTRATOR AND EXECUTOR OF THE WILL, CURIOUSLY WE DO NOT FIND HIM GOING TO THE PROBATE COURT FOR EXECUTION OF THE SAID REGISTERED WILL. WE FIND THAT ON 28.02.1 985 SHRI AJIT SINGH MADE A DECLARATION U/S 281A OF THE INCOME TAX ACT , 1961 (HEREIN AFTER THE ACT) BEFORE THE INCOME TAX DEPARTMENT AND STATED THAT ADARSH KAUR IS ENJOYING ALL THE BENEFITS OF THE ESTATE WITH A BENAMIDAR FAKE LEASE DEED PURPORTEDLY ENTERE D INTO BY HER AND ABNASH KAUR. THEREAFTER , WE FIND THAT IN NOVEMBER, 1990, SHRI AJIT SINGH MADE ANOTHER BENAMIDAR DECLARATION U/S 281A AND ALSO MOVED A PETITION U/S 264 OF THE ACT BEFORE THE REVENUE AUTHORITIES DECLARING THEREIN, THAT THE ALLEGED LEASE BET WEEN LATE ABNASH KAUR AND SMT. ADARSH KAUR WAS SHAM TRANSACTION AND ENDORSING AS CORRECT THE REVENUES CONSISTENT STAND REGARDING THE LEASE DEED AS A FAKE ONE. THE ADMINISTRATOR/ EXECUTOR OF THE WILL SHRI AJIT SINGH FILED A SUIT (SUIT NO. 2167/1993) IN THE YEAR 1993 BEFORE THE HONBLE HIGH COURT OF DELHI ON 16.09.1993, FOR PARTITION OF THE ESTATE OF ABNASH KAUR AND FOR MESNE PROFIT TO THE LEGAL HEIRS AND FOR DECLARATION THAT THERE WAS NO LEASE DEED BETWEEN ABNASH KAUR AND ADARSH KAUR. WHILE THE SAID SUIT OF 1993 WAS PENDING, THE TWO LEGAL HEIRS I.E. AJIT SINGH AND KAMAL KISHORE BINDAL PASSED AWAY IN OCTOBER 2000 AND DECEMBER 1995 RESPECTIVELY. 15 . THESE APPEAL S BEFORE US HAS BEEN PREFERRED AGAINST THE RE - OPENING AND REASSESSMENT CARRIED OUT BY THE ASSESSI NG OFFICER IN THE YEAR 2001, FOR THE ASSESSMENT YEAR S 1991 - 9 2 , 1994 - 95 TO 2000 - 01. FOR RE - OPENING THE SAID ASSESSMENT S , THE ASSESSING OFFICER HAS RECORDED THE FOLLOWING REASON S FOR ALL THE ASSESSMENT YEARS: - AN APPLICATION U/S 230A(1) IN FORM NO. 34A HAS BEEN FILED IN RESPECT OF ESTATE OF LATE SMT. ABNASH KAUR SITUATED AT BUNGALOW NO. 3, SOUTH END ROAD, N. DELHI BY SMT. SURJIT KAUR GILL & SHRI G. S. GILL. IN THE COMBINED PAGE NO. 7 APPLICATION BOTH THE LEGAL HEIRS REQU ESTED FOR GRANT OF CERTIFICATE TO REGISTER 61% SHARE IN THE UNDIVIDED PROPERLY OF LATE SMT. ABNASH KAUR. THE OTHER 39% SHARE IS CLAIMED TO HAVE BEEN DEVOLVED TO SMT. ABNASH KAUR GILL & HER DAUGHTER SMT. NOORIEN KAUR GILL. SMT. ABNASH KAUR ACQUIRED PROPERLY KNOWN AS BUNGALOW NO. 3 , SOUTH END ROAD, NEW DELHI FOR A CONSIDERATION OF RS. 2,50,000/ - VIDE SALE DEED DATED 18.01.56 REGISTERED AS DOCUMENT NO. 215, ADDITIONAL BOOK NO. 1, VOL. NO. 354 AT PAGES 117 T0 138 ON 30.01.57 IN THE OFFICE OF SUB - REGISTRAR, NEW DELHI. SMT. ABNASH KAUR EXPIRED ON 10.06.76 LEAVING BEHIND THE FOLLOWING BENEFICIARIES UNDER HER REGISTERED WILL DATED 06.02.73 BEQUEATHING 1/6TH SHARE EACH TO HER SIX BENEFICIARIES IN THE ABOVE SAID PROPERTY: NAME OF BENEFICIARIES RELATIONSHIP TO ORIGINAL DIVISION AS PER WILL OF ABNASH KAUR K. K. BINDAL SON (1/6) 16.67 AJIT SINGH BROTHER (1/6) 16.67 SURJIT KAUR GILL D SISTER (1/6) 16.67 G. S. GILL NEPHEW (1/6) 16.67 ADARSH GILL SISTER (1/6) 16.67 NOORIEN KAUR GILL NIECE 16.67 SHRI K. K. BINDAL S/O LATE SMT. ABNASH KAUR EXPIRED ON 15.12.95, INESTATE, LEAVING NO FIRST AND SECOND CLASS HEIRS. HIS SHARE WAS THUS, DEVOLVED TO SHRI AJIT SINGH, SMT. SURJIT KAUR GILL AND ADARSH KAUR GILL @ 5.55%, 5.56% AND 5.56% RESPECTIVELY. SIMILARLY, SHRI AJIT SINGH EXPIRED ON 12.12.2000 AND HIS SHARE OF 22.22% (16.67+5.55) WOULD DEVOLVE TO SMT. SURJIT KAUR GILL, BEING EXECUTOR AND ADMINISTRATOR TO THE ESTATE LEFT BY SHRI SURJIT KAUR GILL AND SHIR G. S. GILL IN THEIR LETTER DATED 21.05.2001 (ANNEX. A - 3), TH US, COMES TO AS UNDER AS ON DATE: SURJIT KAUR GILL 44.45% G. S. GILL 1667% ADARSH KAUR GILL 22.22% NOORIEN KAUR GILL 16.67% THE PROPERTY IN QUESTION BEING NO. 3, SOUTH END ROAD, NEW DELHI IS IN THE POSSESSION OF THE ABOVE NAMES FOUR PERSONS WHO ARE EXECUTORS/ ADMINISTRATORS/ OCCUPIERS/ LEGAL HEIRS OF LATE SMT. ABNASH KAUR. IT FURTHER NOTICED FROM THE DETAILS FURNISHED ALONG WIT H THE LETTER DATED 21.05.2001 THAT THE PROPERTY WAS LET OUT TO VARIOUS PARTIES DURING THE PERIOD FOR LAST TEN YEAR. NO RETURN OF INCOME, HOWEVER, FOR ANY OF THESE LAST TEN YEARS WERE FILED IN THE NAME OF ESTATE OF LATE SMT. ABNASH KAUR WITH THE DEPARTMENT. IF IS FURTHER NOTICED THAT THERE WAS CERTAIN CONTRADICTIONS IN THE SUBMISSIONS MADE BY THE LEGAL HEIRS/ OCCUPIERS/ ADMINISTRATORS/ EXECUTORS ETC TO THE APPELLATE AUTHORITIES INCLUDING ITAT AS ALSO TO THE OTHER COURTS. ON SUCH MATTER IS STILL PENDING BEFOR E THE HONBLE DELHI HIGH COURT. DETAILS OF SUCH FACTS ARE NARRATED IN THE LETTER DATED 21.05.2001. IN VIEW OF THE ABOVE MENTIONED FACTS AND SINCE NO RETURN OF INCOME OF THE ESTATE OF LATE SMT. ABNASH KAUR IS FILED, I HAVE REASON TO BELIEVE THAT INCOME CHAR GEABLE TO TAX HAVE ESCAPED THE ASSESSMENTS. SINCE THE STATUS OF ALL FOUR LEGAL HEIRS/ OCCUPIES/ ADMINISTRATORS/ EXECUTORS ETC. IS NOT KNOWN TO THIS OFFICE IN THE PAGE NO. 8 ABSENCE OF COMPLETE DETAILS, NOTICES U/S 148 OF THE ACT ARE BEING ISSUED FROM ASSESSMENT YEAR 1991 - 92 TO 2000 - 01 IN THE CASES OF THE FOUR EXISTING LEGAL HEIRS/ ADMINISTRATORS/ EXECUTORS/ OCCUPIERS I.E. ADARSH KAUR GILL, NOORIEN KAUR GILL SURJIT KAUR GILL AND SH. G. S. GILL. 16 . AFTER RE - OPENING THE ASSESSMENT FOR THE ASSESSMENT YEAR 1991 - 92 TO A SSESSMENT YEAR 2000 - 01, AGAINST THE LEGAL HEIRS OF THE ESTATE OF LATE ABNASH KAUR, THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER VIDE ORDER DATED 28.03.2003. IN THE SAID ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOTED THAT ACCORDING TO THE VERSION OF SHRI AJIT SINGH (BROTHER AND EXECUTOR OF THE WILL ) IN HIS BENAMIDAR DECLARATION MADE IN 1985 STATED THAT THE LEASE DATED 18.11.1958 WAS PREPARED IN THE MONTH OF MARCH 1961 AND IT WAS A PRE - DATED DOCUMENT, LETTING OUT SMT. ABNASH KAURS PROPERTY TO SMT. AD ARSH KAUR WITH A RIGHT TO SUB - LET IT AND ALSO NOTES THAT REVENUE AUTHORITIES VIDE ITS ORDER IN ASSESSMENT YEAR 1959 - 60 HELD THAT THE SAID LEASE DEED W AS A FALSE/ FAKE DOCUMENT. 17 . THE ASSESSING OFFICER HAS ALSO TAKEN INTO ACCOUNT THAT ON 29.11.1990, BROTHER OF LATE ABNASH KAUR, AJIT SINGH MADE A GAIN A B E NAMIDAR DECLARATION U/S 281A AND ALSO MOVED A PETITION U/S 264 OF THE ACT DECLARING THERE IN THAT ALSO HE REITERATED THAT THE LEASE WAS A SHAM TRANSACTION AND HAD ENDORSED THE STAND TAKEN BY THE REVENUE IN THIS RESPECT WAS CORRECT. IN THE SAID BACKGROUND THE ASSESSING OFFICER OBSERV ES IT THEREFORE, STAND ALL OVER THESE YEARS BEGINNING FROM ASSESSMENT YEAR 1959 - 60, AS ASSESSED BY THE DEPARTMENT, THIS PROPERT Y ACTUALLY BELONG TO SMT. ABNASH KA UR AND ON HER DEATH WOULD BE ASSESSED IN THE HANDS OF LEGAL HEIRS OR EXECUTOR OF HER ESTATE. THE ASSESSING OFFICER NOTES THAT ON THE EXPIRY OF MR. KAMAL KISHORE BINDAL (SON) ON 15.12.1995 AND SHRI AJIT SINGH (BROTHER) ON 12.10.2000, U/RULE 2CPC, THE HONB LE HIGH COURT IN THE SUIT FILED BY SHRI AJIT SINGH ALLOWED THEIR NAME TO BE DELETED FROM THE ARRAY OF PARTIES. AS PER THE WILL OF SHRI AJIT SINGH DATED 21.01.1997 HE APPOINTED SMT. SURJIT KAUR GILL AS ADMINISTRATOR AND EXECUTOR OF HIS ESTATE INCLUDING THE PROPERTY ON WHICH BY THE WILL OF LATE ABNASH KAUR HAS APPOINTED HIM THE EXECUTOR. 18 . IT WAS ALSO NOTED BY THE ASSESSING OFFICER THAT THOUGH SHRI K. K. BINDAL (SON) DIED 15.12.1995, AN INFORMATION WAS BROUGHT TO THE NOTICE OF THE COURT HEARING THE SUIT ON 10.10.2001 AND THAT LATE SHRI K . K . BINDAL HAD ALLEGEDLY SOLD HIS 1/6 TH SHARE ON 08.04.1993 TO THE LEGAL HEIRS OF SMT ADAR S H KAUR GILL AND MS. NURIAN GILL. THE ASSESSING OFFICER TAKES NOTES OF THE FACT THAT EVEN THOUGH THE SAID AGREEMENT PAGE NO. 9 WAS DATED 08.04.1993, SINC E NO APPLICATION ON FORM NO. 34 A BEFORE REGISTRATION WAS NOT SUBMITTED TO THE IT DEPARTMENT AND NO APPLICATION IN FORM NO. 37 - I TO THE APPROPRIATE AUTHORITY WAS SUBMITTED, REVENUE LAUNCHED STATUTORY PROCEEDINGS U/S 276AB OF THE ACT VIDE NOT ICE DATED 26.12.2001. THE ASSESSING OFFICER NOTED THAT THE ORIGINAL AGREEMENT BETWEEN MR. K. K. BINDAL AND SMT. ADARSH KAUR OF 0 8 .04.1993 WAS NOT PRODUCED BEFORE HIM AND ALSO POINTS OUT THAT THE EXECUTOR OF THE WILL OF ESTATE OF SMT. ABNASH KAUR HAS FILED AN FIR BEFORE TUGLAK ROAD POLICE STATION IN THIS REGARD . 19 . IN THE AFORESAID CIRCUMSTANCES THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ENTIRE DEMAND OF THE ESTATE BEING COVERED UNDER TRO NOTICE BEING ISSUED TO ALL LEGAL HEIRS IN 1987, THE SAID TR ANSACTION IF EXECUTED GENUINELY SHALL BE HELD VOID AND VOIDABLE U/S 281 OF IT ACT. AND THE ASSESSING OFFICER HELD THAT SINCE THE ESTATE HAS NOT BEEN DISTRIBUTED IT IS CHARGEABLE TO TAX U/S 168 OF THE ACT ; AND SINCE EARLIER ORIGINAL LEASE DEED OF 1958 HAS NOT BEEN PRODUCED EITHER IN THE COURSE OF ASSESSMENT PROCEEDINGS IN 1959 - 60 BEFORE THE THEN ASSESSING OFFICER NOR IN THE YEAR 2002 BEFORE HIM , THE ASSESSING OFFICER HELD THAT THE LEASE IF ANY IN ORIGINAL I S VIOLATIVE OF SECTION 17(1)(D) OF INDIAN REGISTRATION ACT AS IT IS NEITHER PROPERLY STAMPED NOR REGISTERED AND WOULD BE VOID, INEFFECTIVE AND CANNOT BE READ AS EVIDENCE EVEN UNDER SECTION 269UA(F) OF THE ACT, AND THEREFORE HELD THAT THE DEED IS VOID. 20 AND THEN THE ASSESSING OFFICER PROCEEDS TO COMPUTE THE ANNUAL VALUE OF THE PROPERTY OF SMT LATE ABNASH KAUR WHOSE SURVIVING LEGAL HEIRS ARE NAMELY SURJEET KAUR GILL, ADARSH KAUR GILL, GURMEET SINGH GILL, NURAIN KAUR GILL. ASSESSMENT YEAR INCOME ASSESSED INCOME - TAX PAYABLE 1991 - 92 RS. 1,31,250/ - RS. 1,73,070/ - 1994 - 95 RS. 8,84,800/ - RS. 10,64,545/ - 1995 - 96 RS. 11,61,600/ - RS. 11,49,660/ - 1996 - 97 RS. 11,61,600/ - RS. 10,41,770/ - 1997 - 98 RS. 11,81,000/ - RS. 9,46,602/ - 1998 - 99 RS. 11,68,000/ - RS. 9,01,358/ - 1999 - 00 RS. 10,95,000/ - RS. 5,04,160/ - 2000 - 01 RS. 13,38,000/ - RS. 6,09,090/ - 21 . AGGRIEVED BY THE SAID CONSOLIDATED ASSESSMENT ORDER U/S 168/147 OF THE ACT DATED 25.03.2003 THE LEGAL HEIRS OF THE ESTATE OF LATE ABNASH KAUR, SMT ADARSH KAUR AND HER DAUGHTER NURAIN KAUR GILL (PART Y ON ONE SIDE) FILED AN APPEAL AND PAGE NO. 10 SMT SURJIT KAUR GILL , THE SUBSTITUTED EXECUTOR OF THE WILL AND HER SON GURNIR SINGH GILL (PARTY OF THE OTHER SIDE) FILED INTERVENING PETITION AND APPEALED THE SAID ORDER BEFORE THE L D CIT(A), WHO VIDE A CONSOLIDATED ORDER DATED 26.03.2004 DISPOSED OF THE SAID APPEALS OF THE PARTIES AND HELD AS BELOW: - C ) . THE ASSESSING OFFICER HAS ULTIMATELY COME TO THE CONCLUSION THAT THE ESTATE OF LATE SMT. ABNASH KAUR I.E. PROPERTY NO. 3, SOUTH END ROAD, NEW DELHI IS STILL UNDIVIDED AND THE RENTAL INCOME RECEIVED BY THE LEGAL HEIRS ON ACCOUNT OF THIS PROPERTY IS LIABLE T O BE REASSESSED IN THE HANDS OF THE ESTATE. AS DISCUSSED ABOVE THIS CONCLUSION DRAWN BY THE ASSESSING OFFICER CANNOT BE CONSIDERED AS LOGICAL OR COGENT BECAUSE AS PER WILL AND AS STATEMENT FILED BEFORE THE COMPETENT AUTHORITY DISCUSSED ABOVE THE PROPERTY O WNED BY THE ESTATE IS STILL ON RENT WITH MRS. ADARSH KAUR GILL AT RS. 1500/ - PER MONTH AND FOLLOWING THE DECISION OF HONBLE ITAT BENCH DELHI FOR DIFFERENT YEARS IN THE CASE OF SMT. ABANSH KAUR AS DISCUSSED ABOVE, IT IS HELD THAT THE RENTAL INCOME ASSESSAB LE IN THE HANDS OF THE ESTATE WOULD BE ONLY THE EXTENT OF RS. 1500/ - P.M. WHICH IS THE RENT PAYABLE BY SMT. ADARSH KAUR GILL. SINCE THE ESTATE IS NOT SELF OCCUPIED BY ANY OF THE HEIRS AS LEGAL HEIRS BUT IS ACTUALLY IN POSSESSION OF ONE OF THE LEGAL HEIRS O N ACCOUNT OF THE TENANCY RIGHTS, HENCE THE ASSESSING OFFICER WAS ALSO NOT JUSTIFIED TO ASSESSEE ANY NOTIONAL INCOME ON ACCOUNT OF SELF OCCUPANCY. 22. AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A) THE REVENUE IS BEFORE US. 23 . BEFORE THE LD CIT(A) APPELLANT S RAISED IDENTICAL GROUNDS FOR ALL THE ASSESSMENT YEAR EXCEPT ASSESSMENT YEAR 1994 - 95 TO 1997 - 98 WHERE ONE ADDITIONAL GROUND WAS RAISED. THE COMMON GROUND WAS WHETHER THE RENTAL INCOME FROM HOUSE NO. 3, SOUTH END ROAD, NEW DELHI IS ASSESSABLE IN THE HANDS OF THE ESTATE OF LATE SMT. ABNASH KUAUR AND WHETHER ANY NOTIONAL INCOME ON ACCOUNT OF SELF OCCUPANCY OF THE SAID HOUSE IS ALSO ASSESSABLE IN THE HANDS OF THE ESTATE. 24 . THE COUNSEL APPEARING FOR THE REVENUE SUBMITTED THAT THE AO HAD RIGHTLY ISSUED NOTICE S FOR RE - OPENING IN THIS CASE WITH THE APPROVAL OF THE ADD. CIT, TO REOPEN THE ASSESSMENT FOR A PERIOD OF 10 YEARS, BECAUSE IT WAS OBSERVED THAT THE ESCAPING INCOME IS ABOVE RS.50,000/ - , THAT THERE HAPPENED REDUCTION OF TAX ON ACCOUNT OF RENT FROM SUB - LET TING OF PROPERTY ASSESSED IN THE HANDS OF SMT. AD ARSH KAUR AS INDIVIDUAL THAT AO HAD RIGHTLY HELD THAT THE ALLEGED LEASE DEED WAS VIOLATIVE OF SEC. 17(1)(D) OF THE INDIAN REGISTRATION ACT AS IT WAS NEITHER PROPERLY STAMPED NOR REGISTERED AND SO IT WAS NOT VALID IN THE EYES OF LAW AND MOREOVER THE FRAUD WAS PLAYED ON THE AUTHORITIES AND THE COURT AND IT VITIATES THE ENTIRE ASSESSMENTS DONE EARLIER TOO. IT WAS FURTHER SUBMITTED THAT THE ESTATE OF LATE SMT. ABNASH KAUR, I.E., PROPERTY NO 3, SOUTH END ROAD, IS STILL UNDIVIDED AND THE RENTAL PAGE NO. 11 INCOME RECEIVED BY THE LEGAL HEIRS ON ACCOUNT OF THIS PROPERTY IS LIABLE TO BE REASSESSED IN THE HANDS OF THE ESTATE AND THE ASSESSING OFFICER WAS RIGHT AND THE LD CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING O FFICER IN THIS REGARD AND THEREFORE IT WAS PRAYED THAT THE ASSESSING OFFICERS ORDER MAY BE RESTORED. 25 . THE COUNSEL APPEARING FOR SMT. SUJIT KUAR GILL WHO IS THE SUBSTITUTED EXECUTOR OF THE WILL, AND HER SON G.S. GILL SUPPORTED THE DEPARTMENTS ACTION AN D REITERATED THAT THE LEASE DEED WAS PRE - DATED AND A FAKE ONE AND THEREFORE A FRAUD HA S BEEN COMMITTED BY SMT. ADARSH KUAR, THEREFORE THEY JUSTIFIED THE ACTION OF THE DEPARTMENT. 26 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS CAREFULLY. WE FIND THAT FOR THE ASSESSMENT YEAR 1964 - 65, THE ITO FIXED AS ANNUAL VALUE AT 5 5 ,000/ - AS ANNUAL RENT RECEIVED BY THE ASSESSEE ( SMT. ABNASH KAUR OWNER) ; IN APPEAL THE APPELLATE ASST. C OMMISSIONER UPHELD THE ACTION OF THE ITO. BUT ON FURTHER APPEAL TO THE TRIBUNAL HELD THAT THE ANNUAL VALUE OF THE PROPERTY SHOULD BE TAKEN AT RS. 9,000/ - . IN PARA 5 OF THE ORDER OF THE TRIBUNAL DATED 28.2.1971 THE TRIBUNAL GAVE ITS REASONING AS FOLLOWS: WE ARE OF THE CONSIDERED VIEW THE ALV TAKEN FOR ASSESSMENT AT R S . 55,000/ - IN THE HANDS OF THE ASSESSEE IS CONTRARY TO LAW JUSTICE AND EQUITY. IT IS NOT DISPUTED THAT THE ASSESSEE HERSELF RECEIVED MONTHLY RENT OF RS. 500/ - ONLY FROM HER SISTER SMT. ADARSH KAUR GILL UNDER THE AGREEMENT DATED 17.11.1958 AND THAT THE LATER IN HER TURN HAS ENTERED INTO THE AGREEMENT OF LEASE AND LICENSE WITH THE VIETNAM EMBASSY ON 19.01.1961. UNDER THAT AGREEMENT, THE SAID LESSEE IS TO GET COMPENSATOR AT THE RATE OF RS. 4500/ - PER MONTH FOR A PER OF THREE YEARS WITH EFFECT FROM 01.02.1961. NEITHER THE GENUINENESS NOR THE VALIDITY OF THESE DOCUMENTS IS DISPUTED. FURTHER THE ASSESSMENT ORDER MADE ON SMT. ADARSH KAUR GILL FOR THE ASSESSMENT YEAR 1964 - 65 MAKES IT CLEAR THAT SHE IS ASSESSED ON RS. 55,000/ - UNDER THE HEAD OTHER SOURCES. THERE COULD NOT BE DOUBLE TAXATION OF THE SAME INCOME IN THE HANDS OF THE ASSESSEE HEREIN UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 27 . FOR THE ASSESSMENT YEARS 1966 - 67 AND 67 - 68 FOR WHICH THE INCOME - TAX OFFICER HAD TAKEN A NET ALV @ RS. 5,000/ - PER MONTH . IN APPEAL, THE APPELLANT ASSTT. COMMISSIONER RELIED ON THE DECISION OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 1964 - 65 AND DETERMINED THE ALV A T RS. 18,000/ - INSTEAD OF RS. 60, 000/ - TAKEN BY THE INCOME - TAX OFFICER. DEPARTMENTS APPEAL BEFORE THE TRIBUNAL WAS DISMISSED. 28 . FOR THE ASSESSMENT YEARS 1968 - 69 TO 1970 - 71 THE INCOME TAX OFFICER HAD TAKEN THE ANNUAL VALUE OF THE SAID PROPERTY AT RS. 60,000/ - ON THE BASIS OF THE RENT PAGE NO. 12 OF RS . 5,000/ - PER MENS EM RECEIVED FROM THE EMBASSY BY THE SISTER OF THE SMT ABNASH KAUR. IN APPEAL, THE APPELLATE ASSISTANT COMMISSIONER DETERMINED THE ALV AT RS. 18,000/ - ACCORDING TO THE RENT RECEIVED BY THE ASSESSEE FROM HER SISTER. THE REVENUE CAME UP IN A PPEAL TO THE TRIBUNAL. THE TRIBUNAL FOLLOWING THE ORDERS FOR THE EARLIER YEARS, UPHELD THE ORDER OF THE APPELLATE ASSTT. COMMISSIONER ADOPTING THE ANNUAL LETTING VALUE OF THE SAID PROPERTY AT RS. 18,000/ - FOR EACH OF THE ASSESSMENT YEAR UNDER APPEALS. 29 . WITH RESPECT TO THE ASSESSMENT YEARS 1970 - 71, CIT (DELHI) MADE AN APPLICATION U/S. 256(1) OF THE IT ACT, 1961, REQUIRING THE APPELLATE TRIBUNAL TO REFER THE FOLLOWING QUESTIONS SAID TO BE QUESTION OF LAW AS ARISING OUT OF THE ORDER OF THE TRIBUNAL DATED 28 .04.1975 IN ITA NO. 3009 OF 1973 - 74 TO THE HIGH COURT OF DELHI AT NEW DELHI FOR ITS OPINION: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW IN DISREGARDING THE ANNUAL VALUE OF THE PROPERTY DETERMINED BY THE MUNICIPAL AUTHORITIES WHILE DETERMINING THE ANNUAL VALUE FOR PURPOSES OF ASSESSMENT UNDER SECTION 22 AND 23 OF THE INCOME TAX ACT, 1961 AND SOLELY BEARING ITS DETERMINING ON THE RENT CHARGED BY THE OWNER FROM HER SISTER ? 2. WHETHER ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IS NOT ASSESSING THE INCOME OF THE HOUSE PROPERTY IN THE HAND OF THE ASSESSEE ON THE BASIS OF THE ANNUAL LETTING VALUE OF THE PROPERTY ON THE GROUND THAT HER SISTER WAS BEING ASSESSED ON A SIMILAR AMOU NT UNDER THE HEAD OTHER SOURCES BY SUB - LETTING THE PROPERTY? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN REDUCING THE ANNUAL LETTING VALUE OF THE PROPERTY FROM RS. 60,000/ - TO RS. 10,000/ - FOR PURPOSES OF AS SESSMENT TO INCOME - TAX UNDER THE PROVISIONS SECTION 22 AND 23 OF THE INCOME - TAX ACT, 1961? 30 . TRIBUNAL REJECTED THE SAID APPLICATION AND BY ITS ORDER DATED 15 TH NOVEMBER, 1975 IT OBSERVED THAT THE BASIC ORDER OF THE TRIBUNAL IS FOR THE ASSESSMENT YEAR 1964 - 65, WHICH IN SECOND APPEAL TRIBUNAL HAD HELD ON 28.7.1971, THAT THE ANNUAL VALUE OF THE PROPERTY SHOULD BE TAKEN AT RS. 9,000/ - , AND IT WAS OBSERVED TH EREIN THAT NEITHER THE GENUINE NESS NOR THE VALIDITY OF THESE DOCUMENTS IS DISPUTED. IT WAS ALSO O BSERVED THAT THAT THE SAID ORDER OF 28.7.1971 WAS FOLLOWED IN SUBSEQUENT ASSESSMENT YEARS. THAT BEING PURELY A QUESTION OF FACT AND SINCE THOSE FINDINGS WERE CONSISTENTLY FOLLOWED IN SUBSEQUENT ASSESSMENT PAGE NO. 13 YEARS, NO REFERENCE ON ANY QUESTIONS OF LAW IS WARR ANTED IN THE CIRCUMSTANCES OF THE CASE. THE SAID DECISION OF THE TRIBUNAL WAS UPHELD BY THE DIVISION BENCH OF HONBLE HIGH COURT OF DELHI, IN ITR NO. 57/1981 VIDE ORDER DATED 27.08.2007 HELD AS UNDER: - WE ARE IN AGREEMENT WITH THE VIEW OF THE TRIBUNAL THA T THE QUESTION AS TO THE CORRECT VALUE OF THE PROPERTY IS ESSENTIALLY A QUESTION OF F ACT. NO QUESTION OF LAW ARISES OUT OF IT 31 . AS NOTED BEFORE, SHRI AJIT SINGH (BROTHER) WHO WAS THE EXECUTOR OF THE WILL, DID NOT MOVE FOR PROBATE AFTER THE DEATH OF SMT. ABNASH KAUR IN 1976. HOWEVER, WE FIND HIM GIVING A DECLARATION U/S 281A IN 1985 AND ALLEGED ABOUT THE FAKE LEASE DEED AND THEN IN 1990 ALSO HE REPEATED THE ALLEGATION AND MOVED AN APPLICATION U/S 264 BEFORE THE IT AUTHORITIES. THEREAFTER HE FILED A SUIT ( SUIT NO. 2167/1993) BEFORE THE HONBLE COURT OF DELHI FOR PARTITION, RENDITION OF ACCOUNT, DECLARATION THAT THE LEASE DEED BETWEEN SMT. ABNASH KAUR AND SMT. ADARSH KAUR IS NOT EXISTING ETC . THE HONBLE SINGLE JUDGE DISMISSED THE INTER IM OBJECTION OF THE SMT. ADARSH KAUR THAT THE RELIEF S PRAYED FOR IN THE SUIT WERE BARRED BY LIMITATION BY AN ORDER DATED 7.4.2008, AND AGGRIEVED BY THE SAID REJECTION OF INTERIM OBJECTIONS SMT. ADARSH KAUR PREFERRED AN APPEAL BEFORE THE DIVISION BENCH OF THE HONBLE HIGH COUR T VIDE, FAO(OS) NO. 290/2008 AND THE SAME WAS DISPOSED OF BY AN ORDER DATED 27.1.2009. THE RELIEFS SOUGHT IN THE SUIT, ARE AS REPRODUCED BELOW: (A ) PASS A PRELIMINARY DECREE OF PARTITION OF THE PROPERTY BEARING NO.3, SOUTH END ROAD, NEW DELHI, MORE PARTICULARLY SHOWN ON THE PLAN, AND, THEREAFTER, PASS A FINAL DECREE PARTITIONING THE SAID PROPERTY BY METE AND BOUNDS AND PUT ACH OF THE PARTIES TO THE SU IT IN ACTUAL PHYSICAL POSSESSION OF THE PORTION OF THE PROPERTY ALLOTTED TO HIM/HER. IF THE PARTITION OF THE PROPERTY BY METES AND BOUNDS IS NOT FEASIBLE, THEN THE PROPERTY BY METES AND BOUNDS IS NOT FEASIBLE, THEM THE PROPERTY MAY ORDERED TO BE SOLD BY PU BLIC AUCTION THROUGH COURT AND PROCEEDS THEREOF BY DIVIDED BETWEEN THE PARTIES TO THE SUIT IN ACCORDANCE WITH THEIR SHARE AND ENTITLEMENT. (B ) PASS A PRELIMINARY DECREE FOR PARTITION OF THE MOVABLE ASSETS BELONGING TO THE ESTATE OF SMT. ABNASH KAUR, AS ME NTIONED IN THE SCHEDULE TO THE PLAINT AND, THEREAFTER, PASS A FINAL DECREE AND GIVE TO EACH OF THE PARTY TO THE SUIT HIS/HER SHARE OF THE SAID PROPERTY. IN CASE IT IS NOT FEASIBLE TO DISTRIBUTE THE MOVABLE ASSETS BELONGING TO THE ESTATE OF SMT. ABNASH KAUR IN THE IN THE HANDS OF DEFENDANTS NOS. 1 AND 2 TO EACH OF THE BENEFICIARIES, AS PER THE SHARE AND ENTITLEMENT, THEN THE SAID MOVABLE ASSETS MAY BE ORDERED TO BE SOLD BY PUBLIC AUCTION THROUGH THIS HONBLE COURT AND THE PROCEEDS PAGE NO. 14 THERETO MAY BE DIVIDED AMON GST THE PARTIES, AS PER THEIR SHARE AND ENTITLEMENT. (C ) PASS A DECREE FOR RENDITION OF ACCOUNTS AND ENQUIRY INTO THE SAME WITH RESPECT TO THE RENTAL INCOME OF THE PROPERTY RECEIVED BY DEFENDANT NO. 1 FROM THE TENANT OF PROPERTY BEARING NO. 3, SOUTH END R OAD, NEW DELHI W.E.F. 01.01.1980 TO 30.11.1990. (D ) PASS A DECREE FOR RENDITION OF ACCOUNT AND ENQUIRY INTO THE SAME WITH RESPECT TO THE PROFITS MADE BY DEFENDANT NOS.1 AND 2 FROM THE BUSINESS WHICH THEY HAVE BEEN CARRYING ON BY INVESTING THE FUNDS FROM THE ESTATE OF SMT. ABNASH KAUR; (E ) PASS A DECREE FOR DECLARATION THAT THERE HAS BEEN NO LEASE DEED EXECUTED BY SMT. ABNASH KAUR IN FAVOUR OF DEFENDANT NO. 1 AND THAT DEFENDANT NO. 1 IS NOT A LESSEE IN THE PROPERTY, 3, SOUTH END ROAD, NEW DELHI, AND SHE IS NOT ENTITLED TO GIVE THE SAID PROPERTY TO ANY PERSON ON SUB - LEASE BASIS; ( F ) PASS A DECREE OF DECLARATION TO THE EFFECT THAT DEFENDANT NO. 1 IS NOT A SUBROGATE OF THE MORTGAGE DEEDS EXECUTED BY LATE SMT. ABNSH KAUR WITH RESPECT TO THE PROPERTY IN FAVOUR O F SMT. SUSHILA DAPHTARY AND HER SON MR. ANIL DAPHTARY SAID MORTAGAGE DEEDS HAVE BEEN REDEEMED OUT OF THE ESTATE LEFT BY SMT. ABNSH KAUR. (G ) PASS A DECREE OF DECLARATION TO THE EFFECT THAT DEFENDANTS NOS. 1 AND 2 HAVE DIS - ENTITLED THEMSELVES, FROM GETTING ANY SHARE IN THE ESTATE LEFT BY SMT. ABNASH KAUR AND THAT THE PLAINTIFF AND DEFENDANTS NO.3, 4 AND 5 ARE THE ONLY BENEFICIARIES UNDER THE WIL L OF SMT. ABNASH KAUR AND ARE ENTITLED TO GET THE ENTIRE ESTATE LEFT BY SMT. ABANSH KAUR DIVIDED AND PARTITIONED IN FOUR EQUAL SHARES; (H ) PASS A DECREE FOR PERMANENT INJUNCTION AGAINST DEFENDANT NO.1 RESTRAINING HER PERMANENTLY FROM TRANSFERRING, ALIENATI NG, LETTING OUT OR PARTING WITH THE POSSESSION OF THE PROPERTY, 3, SOUTH END ROAD, NEW DELHI, OR ANY PART THEREOF AND FROM MAKING ANY ADDITIONS AND ALTERATIONS IN THE SAME IN ANY MANNER WHATSOEVER. (I ) ANY RELIEF WHICH THIS HONBLE COURT MAY DEEM FIT AND PROPER IN THE CIRCUMSTANCES OF THE CASE MAY ALSO BE GRANTED TO THE PLAINTIFF AND OTHER BENEFICIARIES UNDER THE WILL OF SMT. ABNASH KAUR. 32 . THE HONBLE DIVISION BENCH OF HIGH COURT HIGH COURT WHILE PARTLY ALLOWING THE SAID APPEAL, STATED AS FOLLOWS: 35 . THE UPSHOT OF THE AFORESAID DISCUSSION WOULD BE HOLD THAT THE SUIT IN RESPECT OF RELIEFS (B) TO (F) WOULD BE TIME BARRED. RELIEF (G) HAS TO GO AS IT IS NOT PRESSED. THEREFORE, SUIT WILL SURVIVE ONLY QUA RELIEF (A) AND CONSEQUENTIAL RELIEF CLAIMED IN RE LIEFS (H) AND (I) . 36. THESE APPEALS ARE, THEREFORE, PARTLY ALLOWED. THE IMPUGNED ORDER OF THE LEARNED SINGLE JUDGE IS SET ASIDE AND APPLICATION OF THE APPELLANT UNDER ORDER VII RULE 11 CPC IS ALLOWED TO OTHE R EXTENT RELIEFS (B) TO (F) ARE CONCERNED HOLDI NG THAT THESE RELIEFS ARE TIME BARRED AND, THEREFORE, CANNOT BE CLAIMED BY THE PLAINTIFF. SUIT SHALL NOW PROCEED ONLY QUA RELIEF (A), (H) & (I). PAGE NO. 15 33 . FROM THE SAID ORDER OF THE DIVISION BENCH OF THE HONBLE HIGH COURT, IT CAN BE NOTICED THAT THERE WAS A SP ECIFIC PRAYER IN THE SUIT FOR DECLARATION THAT THERE HAS BEEN NO LEASE DEED EXECUTED BY SMT. ABNASH KAUR IN FAVOUR OF SMT ADARSH KAUR AND SMT ADARSH KAUR IS NOT A LESSEE IN THE ESTATE AND ALSO THAT SMT. ADARSH KAUR IS NOT A SUBROGATE OF MORTGAGE DEED THE P RAYERS ARE AGAIN REPRODUCED . (E ) PASS A DECREE FOR DECLARATION THAT THERE HAS BEEN NO LEASE DEED EXECUTED BY SMT. ABNASH KAUR IN FAVOUR OF DEFENDANT NO. 1 AND THAT DEFENDANT NO. 1 IS NOT A LESSEE IN THE PROPERTY, 3, SOUTH END ROAD, NEW DELHI, AND SHE IS N OT ENTITLED TO GIVE THE SAID PROPERTY TO ANY PERSON ON SUB - LEASE BASIS; (F ) PASS A DECREE OF DECLARATION TO THE EFFECT THAT DEFENDANT NO. 1 IS NOT A SUBROGATE OF THE MORTGAGE DEEDS EXECUTED BY LATE SMT. ABNSH KAUR WITH RESPECT TO THE PROPERTY IN FAVOUR OF SMT. SUSHILA DAPHTARY AND HER SON MR. ANIL DAPHTARY SAID MORTAGAGE DEEDS HAVE BEEN REDEEMED OUT OF THE ESTATE LEFT BY SMT. ABNSH KAUR. 34 . THE HONBLE HIGH COURT HELD AS UNDER IN RESPECT TO DECLARATION THAT THERE HAS BEEN NO LEASE DEED (AND IT WAS A SHAM DOCUMENT) EXECUTED BETWEEN SMT. ABNASH KAUR AND SMT. ADARSH KAUR, IT WAS HELD AS UNDER: - 25 RELLIEF (E) COMING TO RELIEF (E), THE LEASE DEED WAS ADMITTEDLY EXECUTED ON 19.11.1961. SUIT IS FILED ON 15.09.1993, I.E. 29 YEARS LATER. SUCH A RELIEF ON DECLAR ATION THAT LEASE DEED WAS A SHAM DOCUMENT COULD NOT HAVE BEEN SOUGHT AS THIS IS ALSO TIME BARRED. 35 . IN RESPECT TO THE SUBROGATION OF MORTGAGE ALSO THERE WAS A SPECIFIC PRAYER, WHICH WAS ANSWERED BY THE HONBLE HIGH COURT: - 26 RELIEF (F) SAME WOULD BE THE POSITION IN RESPECT OF RELIEF (F). THERE IS A COURT DECREE CLEARLY RECORDING THAT DEFENDANT NOS. 1 & 2 REDEEMED THE MORTGAGE, WHICH ORDER WAS PASSED ON 08.05.1981. FILING A SUIT IN THE YEAR 1993 WITH THE AVERMENTS THAT IT WAS REDEEMED OUT OF THE ESTAT E LEFT BY SMT. ABNASH KAUR WOULD AGAIN BE TIME BARRED, KEEPING IN VIEW THE PROVISIONS OF ARTICLE 58 OF THE LIMITATION ACT, WHICH PRESCRIBES THREE YEARS PERIOD FOR SEEKING SUCH A DECLARATION. 36 . WE ALSO TAKE NOTE OF THE FACT THAT AN APPEAL HAS BEEN FI LED BEFORE THE HONBLE SUPREME COURT, VIDE , SLP (CIVIL) 6344/2009 AGAINST THE AFORESAID ORDER DATED 27.1.2009 PASSES BY THE HONBLE HIGH COURT IN FAO(OS) NO. 290/2008, AND HONBLE SUPREME COURT WAS PLEASED TO ISSUE NOTICE OF THE APPEAL AND DIRECTED LISTING OF THE SAME FOR FINAL DISPOSAL. SO WE SHOULD KEEP IN MIND THE HONBLE DIVISION BENCH ORDER IN RESPECT TO THE LEASE DEED BETWEEN SMT. ABNASH KAUR AND SMT. ADARSH KAUR MADE IN 1961 , REPRODUCED IN PARA 34 ABOVE. PAGE NO. 16 37 . COMING BACK TO THE ISSUE BEFORE US; THAT ON 31.5.2001, AO ISSUED NOTICES TO REOPEN THE ASSESSMENT FOR A PERIOD OF 10 YEARS, SEEKING APPROVAL OF THE ADDL. CIT, ONLY FOR THE AY 1991 - 92 TO 1996 - 97, WITH THE REASON THAT THE ESCAPING INCOME IS ABOVE RS.50,000/ - . THE LD CIT(A) HAS HELD THAT THE RE - OPEN ING OF THE ASSESSMENT AS VALID AND THERE HAS BEEN NO CHALLENGE IN THIS RESPECT BEFORE US. 38 . THIS REOPENING OF ASSESSMENT IN THE HANDS OF THE LEGAL HEIRS TO THE ESTATE OF SMT. ABNASH KAUR WAS DONE ON THE PREMISES THAT THE AO FOR AY 1959 - 60 HAD HELD THAT THE LEASE AGREEMENT ARRANGEMENT WAS A FAKE DOCUMENT AND SUCH TRANSACTION HAS TO BE REGARDED AS SHAM AND THIS FINDING OF ASSESSING OFFICER IN 1960 HAS BEEN FOUND CORRECT BY THE DECLARATION MADE BY SH. AJIT SINGH U/SEC. 281 OF THE IT ACT IN THE YEAR 198 5 AND 1990 . BESIDES, THERE HAPPENED TO BE REDUCTION OF TAX ON ACCOUNT OF RENT FROM SUB - LETTING OF PROPERTY ASSESSED IN THE HANDS OF SMT. ADARSH KAUR AS INDIVIDUAL. AO ALSO HAS HELD THAT THE ALLEGED LEASE DEED WAS VIOLATIVE OF S EC. 17(1)(D) OF THE INDIAN RE GISTRATION ACT AS IT IS NEITHER PROPERLY STAMPED NOR REGISTERED AND WOULD BE VOID. AO FINALLY CAME TO THE CONCLUSION THAT THE ESTATE OF LATE SMT. ABNASH KAUR, I.E., PROPERTY NO 3, SOUTH END ROAD, IS STILL UNDIVIDED AND THE RENTAL INCOME RECEIVED BY THE LE GAL HEIRS ON ACCOUNT OF THIS PROPERTY IS LIABLE TO BE REASSESSED IN THE HANDS OF THE ESTATE. AND THE ASSESSING OFFICER INCLUDED THE RENTAL INCOME RECEIVED BY SMT. ADARSH KAUR ON ACCOUNT OF THE SUB - LETTING THE PROPERTY NO. 3, SOUTH END ROAD, NEW DELHI IN THE HANDS OF THE SURVIVING LEGAL HEIRS OF THE ESTATE AND ACCORDINGLY MADE ADDITIONS AS STATED IN PARA 20 ABOVE . 39 . AGGRIEVED BY THE SAID ORDER, AN APPEAL WAS PREFERRED WHEREIN, T HE LD CIT(A) IN HIS ORDER WHICH IS IMPUGNED IN THIS APPEAL HAS SPECIFICALLY DEALT WITH EACH OF THESE REASONING. 40 . WITH RESPECT TO THE REASONING OF AO THAT FOR AY 1959 - 60 THE THEN AO HAD HELD THAT THE LEASE AGREEMENT ARRANGEMENT WAS A FAKE DOCUMENT AND SUCH TRANSACTION WAS TO BE REGARDED AS SHAM AND THE SAID AGREEMENT HAS BEEN DECLARED AS SHAM THROUGH A STATEMENT OF SH. AJIT SINGH U/SEC. 281 OF THE IT ACT; AND THAT THERE H APPENED TO BE REDUCTION OF TAX ON ACCOUNT OF RENT FROM SUB - LETTING OF PROPERTY ASSESSED IN THE HANDS OF SMT. ADARSH KAUR AS INDIVIDUAL. THE LEARNED APPELLATE AUTHORITY RIGHTLY REJECTED THE SAID CONTENTION STATING THAT : - A ) PERUSAL OF THE ORDER FOR ASSESSMENT YEAR 1959 - 60 AND 1960 - 61 AS DISCUSSED ABOVE DOES NOT SPEAK OF ANY FAKE AGREEMENT BUT THE ASSESSING PAGE NO. 17 OFFICER DID DOUBT THE GENUINENESS OF THE ARRANGEMENT AND ULTIMATELY CONCLUDED THAT THE ARRANGEMENT CANNOT BE RELIED UPON BECAUSE IT IS MADE FOR REDUCING THE TAX. THE ARGUMENT OF LD COUNSEL SH. R.K. SHARMA THAT THE LEASE AGREEMENT ARRANGEMENT HAS BEEN ACCEPTED BY THE EXECUTOR MRS. ABNASH KAUR GILL DURING THE LIFETIME OF SMT. ABNASH KAUR AND AS PER THE TERMS OF THE AGREEMENT S MT. ADARSH KAUR GILL HAS BEEN SUBLETTING THE PROPERTY AND ENJOYING THE RENT IN HER INDIVIDUAL CAPACITY AND THE SAME HAS BEEN DISCLOSED IN HER RETURN AND ACCEPTED BY THE DEPARTMENT AND THIS HAS NEVER BEEN CONTROVERTED BY THE ASSESSING OFFICER. LATE SMT. ABN ASH KAUR IN HER WILL HAS CATEGORICALLY MADE MENTION OF THE LEASE AGREEMENT DATED 18 - 11 - 1958 BETWEEN HER AND SMT. ADARSH KAUR GILL RELTING TO PROPERTY NO. 3, SOUTH END ROAD, NEW DELHI. SHE HAS ALSO MENTIONED THE INCREASE THE LEASE RENT THROUGH A SUBSEQUENT AGREEMENT AND SHE HAS ALSO CATEGORICALLY STATED THAT THE PROPERTY 3, SOUTH END ROAD IS IN PHYSICAL POSSESSION OF SMT. ADARSH KAUR GILL. SHE HAS ADMITTED IN HER WILL THAT SMT. ADARSH KAUR GILL IS HER TENANT FROM WHOM A RENT OF RS. 1500/ - P.M. WAS BEING RECE IVED. SHE IS ALSO MENTIONING ABOUT THE CHARGE OF SMT. ADARSH KAUR GILL, THE LESSEE OF THE HOUSE UNDER AGREEMENT DATED 18 - 11 - 1958 VIDE CLAUSE NO. 13 CREATED AT 50% OF THE AMOUNT SPENT BY HER IN THE RENOVATION OF THE SAID HOUSE NO. 3, SOUTH END ROAD, NEW DEL HI AS AND WHEN SHE VACATES THE PREMISES. THE DECLARATION MADE BY LATE SMT. ABANSH KAUR IN HER WILL RELATING TO THE AGREEMENT DATED 18 - 11 - 1958 TALLIES WITH THE PHOTOCOPY OF THE LEASE AGREEMENT DATED 18 - 11 - 1958 FILED BY THE COUNSEL WHICH READS AS UNDER: THA T WHENEVER THE TENANCY COMES TO AN END THE LESSEE SHALL BE ENTITLED TO GET 50% OF THE EXPENSES INCURRED BY HER AS MENTIONED IN THE PRECEDING PARAGRAPH FROM THE LESSOR. IN HER WILL LATE SMT. ABANSH KAUR HAS MADE REFERENCE THAT SH. AJIT SINGH IS AUTHORIZED TO RECEIVE THE RENT OF RS. 1500/ - PER MENSON FROM PROPERTY 3, SOUTH END ROAD, NEW DELHI FROM SMT. ADARSH KAUR GILL. THIS MAKES IT CLEAR THAT DURING HER LIFETIME SMT. ABNASH KAUR NEVER TERMINATED THE TENANCY RIGHTS GIVEN THROUGH THE LEASE AGREEMENT TO SMT. ADARSH KAUR GILL AND SHE NEVER, INTENDED TO TERMINATE THE LEASE AGREEMENT EVEN AFTER HER DEATH BECAUSE OTHERWISE THERE WAS NO PURPOSE TO AUTHORIZE SH. AJIT SINGH, EXECUTOR OF THE WILL TO RECEIVE RS. 1500/ - P.M. AS RENT FROM SMT. ADARSH KAUR GILL. THE ASSE SSING OFFICER HAS NOT BROUGHT ANYTHING ON RECORD TO PROVE THAT THE TENANCY RIGHTS GIVEN BY SMT. ABANSH KAUR GILL DURING HER LIFE TIME WERE TERMINATED BY HER DURING HER LIFETIME OR EVEN AFTER HER DEATH EXCEPT RELYING ON THE STATEMENT OF SH. AJIT SINGH WHO W AS ONE OF THE WITNESS TO THE LEASE AGREEMENT. PERUSAL OF THE DECLARATION MADE BY SH. AJIT SINGH INDICATES THAT SH. AJIT SINGH HAS NOT DENIED HIS SIGNATURES ON THE LEASE AGREEMENT. THE WRITING OF THIS DOCUMENT HAS NOT BEEN DENIED EVEN BY SH. AJIT SINGH AND HE HAS ALSO NOT DENIED THE WRITING AND EXISTENCE OF THE LEASE AGREEMENT. HE HAS ONLY SAID THAT THE LEASE ARRANGEMENT WAS A SHAM TRANSACTION ENTERED INTO BETWEEN THE PARTIES FOR SAVING THE PROPERTY FROM THE LITIGATION BY THE ORDER CLAIMANTS I.E. THE STEP S ONGS OF SMT. ABNASH KAUR. THE ASSESSING OFFICER HAS NOT DISCUSSED WHETHER SH. AJIT SINGH WAS COMPETENT TO MAKE A BENAMI DECLARATION U/S 281 A BECAUSE SUCH DECLARATION COULD BE MADE BY THE OWNER OF THE PROPERTY ACTUALLY BELONGING TO THE PERSON BUT HELD IN T HE NAME OF SOME OTHER PERSON. A CERTIFICATE WAS TO BE ISSUED BY THE CIT ON THE PAGE NO. 18 BASIS OF DECLARATION OF 281A AND THE ASSESSING OFFICER HAS NOT BROUGHT ON THE RECORD WHETHER ANY COGNIZANCE WAS TAKEN BY THE CIT ON THE BENAMI DECLARATION U/S 281 A AND WHETHER ANY CERTIFICATE WAS ISSUED. SINCE THE EXECUTOR OF THE DOCUMENT EVEN IN HER WILL CAN NOT BE CHALLENGED OR CHANGED BY THE EXECUTOR OF THE WILL. HENCE, THE ASSESSING OFFICER WAS NOT JUSTIFIED TO TREAT THE LEASE ARRANGEMENT AS SHAM TRANSACTION MERELY ON THE ST ATEMENT OF SH. AJIT SINGH WHO ONLY WITNESSED THE DOCUMENT. THE AVERMENTS MADE IN THE STATEMENT OF SH. AJIT THAT THERE WAS A CODICIL TO THE WILL CANNOT BE CONSIDERED BECAUSE NO SUCH DOCUMENT HAS BEEN PRODUCED BEFORE ME. 41 . WITH RESPECT TO THE CONTENTION THAT THE ALLEGED LEASE DEED WAS VIOLATIVE OF SEC. 17(1)(D) OF THE INDIAN REGISTRATION ACT AS IT IS NEITHER PROPERLY STAMPED N OR REGISTERED AND WOULD BE VOID, THE APPELLATE AUTHORITY RIGHTLY HELD THAT : - B) FURTHER THE ASSESSING OFFICER HAS HELD THAT THE ALLEGED LEASE DEED WAS VIOLATIVE OF SEC. 17(1)(D) OF THE INDIAN REGISTRATION ACT AS IT IS NEITHER PROPERLY STAMPED NOR REGISTERED AND WOULD BE VOID INEFFECTIVE AND CANNOT BE READ AS EVIDENCE EVEN U/S 269UA(F) OF THE IT ACT, 1961. THIS CONCLUSION OF THE ASS ESSING OFFICER IS HIGHLY PREMATURE BECAUSE HE HAS NOT SEEN THE ORIGINAL DOCUMENT AND THE PROVISIONS OF SEC. 269UA(F) WERE NOT ON THE STATUE AS THE SAME WERE INSERTED ONLY W.E.F. 01.11.1986 BY THE FINANCE ACT, 1986. IT IS TRUE THAT THE ORIGINAL LEASE DEED W AS NOT PRODUCED BEFORE THE ASSESSING OFFICER NOR BEFORE ME BUT IT DOES NOT ESTABLISH THAT THE DOCUMENT WAS NOT IN EXISTENCE BECAUSE THE EXISTENCE OF THE DOCUMENT HAS BEEN ADEQUATELY ESTABLISHED THROUGH THE DECLARATION MADE IN THE WILL OF SMT. ABNASH KAUR A ND IS DULY ADMITTED BY SH. AJIT SINGH AS HAVING SIG N ED SUCH A DOCUMENT. 42 . REGARDING THE CONTENTION THAT THE ESTATE OF LATE SMT. ABNASH KAUR, I.E., PROPERTY NO 3, SOUTH END ROAD, IS STILL UNDIVIDED AND THE RENTAL INCOME RECEIVED BY THE LEGAL HEIRS ON A CCOUNT OF THIS PROPERTY IS LIABLE TO BE REASSESSED IN THE HANDS OF THE ESTATE. THIS CONTENTION WAS ALSO RIGHTLY REJECTED BY THE APPELLATE AUTHORITY STATING THAT : - C) THE ASSESSING OFFICER HAS ULTIMATELY COME TO THE CONCLUSION THAT THE ESTATE OF LATE SMT. ABNASH KAUR I.E. PROPERTY NO. 3, SOUTH END ROAD, NEW DELHI IS STILL UNDIVIDED AND THE RENTAL INCOME RECEIVED BY THE LEGAL HEIRS ON ACCOUNT OF THIS PROPERTY IS LIABLE T O BE REASSESSED IN THE HANDS OF THE ESTATE. AS DISCUSSED ABOVE THIS CONCLUSION DRAWN BY THE ASSESSING OFFICER CANNOT BE CONSIDERED AS LOGICAL OR COGENT BECAUSE AS PER WILL AND AS STATEMENT FILED BEFORE THE COMPETENT AUTHORITY DISCUSSED ABOVE THE PROPERTY O WNED BY THE ESTATE IS STILL ON RENT WITH MRS. ADARSH KAUR GILL AT RS. 1500/ - PER MONTH AND FOLLOWING THE DECISION OF HONBLE ITAT BENCH DELHI FOR DIFFERENT YEARS IN THE CASE OF SMT. ABANSH KAUR AS DISCUSSED ABOVE, IT IS HELD THAT THE RENTAL INCOME ASSESSAB LE IN THE HANDS OF THE ESTATE WOULD BE ONLY THE EXTENT OF RS. 1500/ - P.M. WHICH IS THE RENT PAYABLE BY SMT. ADARSH KAUR GILL. SINCE THE ESTATE IS NOT SELF OCCUPIED BY ANY OF THE HEIRS AS LEGAL HEIRS BUT IS ACTUALLY IN PAGE NO. 19 POSSESSION OF ONE OF THE LEGAL HEIRS O N ACCOUNT OF THE TENANCY RIGHTS, HENCE THE ASSESSING OFFICER WAS ALSO NOT JUSTIFIED TO ASSESSEE ANY NOTIONAL INCOME ON ACCOUNT OF SELF OCCUPANCY. 43 . IT WAS FURTHER RIGHTLY HELD BY THE APPELLATE AUTHORITY IS THAT IN VIEW OF THE PENDING LITIGATION REGARDIN G THE DISTRIBUTION OF ESTATE OF LATE SMT. ABNASH KAUR, IE., 3 SOUTH END, NEW DELHI, THE ESTATE STILL CONTINUES TO BE UNDIVIDED, AND THE INCOME TO BE ASSESSED IN THE HANDS OF THE ESTATE WOULD ONLY BE RS. 1,500/ - PER MONTH. THE ENTIRE PROPERTY IS STILL SUBJE CT TO PARTITION ONLY, AS AND WHEN THE ESTATE IS PARTITIONED THE LIABILITY OF PAYING TAX WOULD FALL ON THOSE SUCCESSORS OF ABNASH KAUR FROM WHOM THE REVENUE COULD COLLECT TAX LATER. WE DO NOT FIND ANY INFIRMITY IN THE REASONED DECISION OF THE LD CIT(A) AND WE ARE NOT INCLINED TO AGAIN LOOK INTO THE ISSUE REGARDING THE LEASE DEED WHICH HAS BEEN DECIDED BY THE HONBLE DIVISION BENCH OF THE JURISDICTIONAL HIGH COURT, THAT IT HAS BEEN HIT BY LIMITATION AND WE CANNOT GO INTO THE MERITS OF IT. (PARA 34 & 35 SUPRA) 44 . HOWEVER, WE WOULD LIKE TO ADDRESS FEW CONTENTIONS OF THE REVENUE AND LD COUNSEL FOR THE EXECUTOR OF THE WILL. THE LD COUNSEL AND SR. DR HAS STRENUOUSLY ARGUED THAT IN VIEW OF THE FRAUDULENT NATURE OF THE TRANSACTIONS INVOLVED, THEREFORE, IT IS INCUMBE NT UPON THIS TRIBUNAL TO REVIEW THE FACTUAL MATRIX REGARDING THE LEASE DEED IN QUESTION. IN ORDER TO BUTTRESS THE SAID ARGUMENT, RELIANCE HAS ALSO BEEN PLACED ON VARIOUS PRONOUNCEMENTS OF THE APEX COURT. WHILE WE ARE ACCEPTING THAT WE ARE BOUND BY THE SAID PRONOUNCEMENTS OF THE APEX COURT, AND IN FACT, THERE CAN BE NO DIFFICULTY TO ACCEPT THE PROPOSITION THAT FRAUD HITS AT THE ROOT OF THE MATTER, AND HENCE, EVEN SETTLED MATTERS CAN BE QUESTIONED AND UNSETTLED, HOWEVER, IN THE INSTANT CASE, WE WOULD LIKE TO POINT OUT THAT THESE ISSUES HAVE BEEN SETTLED AND RESOLVED BY HIGH COURT IN A SERIES OF LITIGATION BETWEEN THE VERY SAME PARTIES. THEREFORE, CHALLENGE ON THE GROUND OF FRAUD, MUST NECESSARILY BE ADDRESSED BEFORE THE VERY SAME FORUM. IT WOULD NOT AT ALL BE OPEN TO THIS TRIBUNAL TO UNDERMINE ISSUES SETTLED BY THE HIGH COURT, OR TO INDULGE IN A ROVING ADJUDICATION PROCESS ON SUCH ISSUES MERELY BECAUSE A PARTY TO THE DISPUTE RAISES SUCH GROUNDS OF FRAUD. AS SUCH, WE ARE CONSTRAINED TO REJECT SUCH GROUNDS, WITHO UT ADVERTING TO THE MERITS OF SUCH GROUNDS. WE MAY HASTEN TO ADD THAT IN OUR HUMBLE VIEW, SUCH CHALLENGES OUGHT TO BE RAISED BEFORE THE SAME FORUM, IF AT ALL. WE ARE FORTIFIED BY THE DECISION OF THE CALCUTTA HIGH COURT IN TEXMACO LTD. VGS. PAGE NO. 20 ITO (1992) TAX. L. R.. 788 WHERE IN THE HONBLE HIGH COURT HELD AND OBSERVED AS UNDER: - 11. IN VIEW OF THE BINDING AUTHORITIES, I NEED NOT INQUIRE INTO THE RATIONALE OF THIS SEEMINGLY DISHONESTLY FAVOURING PRINCIPLE. BUT IN REALITY, IT IS NOT DISHONESTY THAT IS BEING FA VOURED BUT A FINALITY. IT MAY BE THAT A DOCUMENT IS BOGUS OR SHAM; AT THE STAGE OF REOPENING OF ASSESSMENT, IT IS ONLY THE CASE OF THE DEPARTMENT THAT THE DOCUMENT IS SHAM. 12. THAT CASE IS NOT ADMITTED BY THE ASSESSEE. WHAT THE DEPARTMENT IS ENJOINED FRO M DOING AFTER FOUR YEARS IS NOT TO TREAT THE SHAM DOCUMENT AS GENUINE, BUT MERELY TO DESIST FROM REOPENING ISSUE OF THE SHAM NATURE OF THE DOCUMENT. SUCH IS THE CASE WITH ALL PROVISIONS OF LIMITATION WHEN AS APPARENTLY VERY GOOD MONEY SUIT IS DISMISSED AS BEYOND THREE YEARS, IT IS DONE SO NOT BECAUSE THE LEGISLATURE HAS FRAMED AS LAW FOR DELETING GOOD CLAIMS, BUT BECAUSE THE LEGISLATURE HAS THOUGHT IT FIT NOT TO PERMIT THE AGITATION OF STALE CLAIMS WHICH HAVE BEEN KEPT OUT OF THE RUN OF TIME AND EVENTS FOR TOO LONG A PERIOD. 13. ACCORDINGLY, THE WRIT PETITION SUCCEEDS. 45. THERE IS YET ANOTHER DIMENSION TO THE DISPUTE BEING ADJUDICATED BEFORE US. IT IS EVIDENT FROM THE RECORDS PLACED BEFORE US, AND RATHER STANDS ADMITTED, THAT THE TAX DEMANDS IN QUESTIO N HAVE ALREADY BEEN PAID BY SMT. ADARSH KAUR FOR THE RELEVANT ASSESSMENT YEARS. THE ONLY ARGUMENT RAISED BEFORE US, TO JUSTIFY RE - OPENING THESE DEMANDS, IS UNDER THE GARB THAT THE CORRESPONDING INCOME OUGHT TO HAVE BEEN ACCOUNTED FOR IN THE ESTATE OF ABNAS H KAUR. THERE IS NO EVIDENCE OR ARGUMENTS BROUGHT TO BEAR THAT IN CASE SUCH RE - ACCOUNTING IS DONE, THE TAX DEMANDS FOR THE RELEVANT ASSESSMENT YEARS QUA THE SAID PROPERTY WOULD HAVE INCREASED, AND SOME BENEFIT WOULD HAVE ACCRUED TO THE EXCHEQUER. AS SUCH, IT IS EVIDENT THAT THIS EFFORT OF RE - ACCOUNTING, EVEN IF SUCCESSFUL, MAY YIELD NO BENEFIT TO THE EXCHEQUER, WHATSOEVER, AND IS MERELY AN ACADEMIC EXERCISE SANS ANY BENEFIT. IT IS WELL SETTLED THAT THIS SORT OF ADJUDICATION FOR ACADEMIC PURPOSES ONLY, CANNO T BE PERMITTED, RATHER, WE ARE NOT WILLING TO BE PERSUADED TO INDULGE IN SUCH PURELY ACADEMIC EXERCISE WHEN JUDICIAL INSTITUTIONS AT EVERY LEVEL, INCLUDING THIS TRIBUNAL IS SERIOUSLY BURDENED WITH HUGE BACKLOG OF CASES. WE ARE IN AGREEMENT WITH THE FINDING OF THE LD CIT(A) THAT HAD THE RENTAL INCOME BEEN SEPARATELY ASSESSED IN THE HAND OF THE ESTATE THEN THE TAX PAYABLE WOULD BE LOWER THAN WHAT HAS BEEN PAID BY SMT. ADARSH KAUR GILL BECAUSE SHE HAS OTHER INCOME ALSO, THAN THE RENTAL INCOME. THEREFORE, LD CIT(A) HAS FOUND THAT THERE IS NO REDUCTION OF TAX ON ACCOUNT OF RENT FROM SUB - LETTING OF PROPERTY ASSESSED IN THE HAND OF SMT. ADARSH KAUR GILL AS AN INDIVIDUAL. PAGE NO. 21 46. BEFORE PARTING WITH THE CASE, WE WOULD ALSO LIKE T O MENTION THAT THE DISPUTE HAS A LONG AND CHEQUERED HISTORY SPANNING OVER HALF A CENTURY. DESPITE COURTS HAVING TRIED TO RESOLVE THE CONTROVERSY MANY TIMES, THE BASIC DISPUTE BETWEEN THE PARTIES IS COMING UNDER CHALLENGE AGAIN AND AGAIN, ALBEIT UNDER NEW A ND IN GE NUINE GROUNDS. UNDER SUCH CIRCUMSTANCES, IT IS ONLY UNDER EXCEPTIONAL GROUNDS THAT ANY COURT OR AUTHORITY CAN RE - OPEN THE DISPUTE. IN OUR VIEW, NO SUCH EXCEPTIONAL GROUNDS HAVE BEEN BROUGHT TO BEAR. 47. IN THE RESULT THE APPEAL PREFERRED BY THE REVENUE IS DEVOID OF MERITS AND THEREFORE DISMISSED. THE CROSS OBJECTIONS AND APPEAL FILED BY THE EXECUTOR OF THE WILL SMT. SURJIT KAUR GILL AND SHRI G.S. GILL IS ALSO DISMISSED. THE ORDER OF THE LD CIT(A) IS CONFIRMED. ORDER P RONOUNCED IN THE OPEN COURT ON 07 . 02 .2014. - SD/ - - SD/ - ( J. S REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 07 / 02 /2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI