ACIT, CHENNAI V. Abdul Khadir Rahmath Ilahi, CHENNAI

ITA 604/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4126 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CYRIAC TOM
• Section: 27

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , , # BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A. NO. 604/MDS/2017 & C.O. NO. 77/MDS/2017 / ASSESSMENT YEAR : 2012-13 ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 3, 121, MAHATMA GANDHI ROAD, NUNGAMBAKKAM, CHENNAI 600 034. VS. SHRI ABDUL KHADIR RAHMATH ILAHI, NO. 28, CRESCENT PARK, MAYOR SHIVASHANMUGHAM STREET, NUNGAMBAKKAM, CHENNAI 600 034. [PAN: AIDPR 6696Q] ( / APPELLANT) ( RESPONDENT & CROSS OBJECTOR) % & / APPELLANT BY : SHRI V. SREENIVASAN, JCIT )*% & / RESPONDENT BY : SHRI CYRIAC TOM, ADVOCATE & /DATE OF HEARING : 29.06.2017 & /DATE OF PRONOUNCEMENT : 11.07.2017 /O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THE REVENUE FILED AN APPEAL AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-4, CHENNAI, WHILE THE ASSESSEE FILED THE CO. :-2-: ITA NO. 604/MDS/2017 CO NO. 77/MDS/2017 2. SHRI ABDUL KHADIR RAHMATH ALI, THE ASSESSEE, AN INDIVIDUAL DERIVING INCOME FROM HOUSE PROPERTY FILED HIS RETUR N FOR ASSESSMENT YEAR 2012-13 ADMITTING A TOTAL INCOME OF RS. 28,51,440/- . WHILE MAKING THE ASSESSMENT, THE ASSESSING OFFICER FOUND THAT THE AD MITTED INCOME IS ONLY 2/10 TH OF SHARE INCOME, HENCE, HE REQUIRED THE ASSESSEE T O FILE THE DETAILS TOWARDS WHICH ASSESSEE FILED FORM 26AS ONLY. THE A O CALLED FOR DETAILS OF OTHER CO-OWNERS AND INFORMED THE ASSESSEE THAT IN T HE ABSENCE OF THE REQUIRED PROOF THE ENTIRE RENTAL INCOME WILL BE ASS ESSED IN HIS HANDS. SINCE, ASSESSEE FAILED TO COMPLY, HE ASSESSED THE INCOME F ROM HOUSE PROPERTY AT RS. 91,24,617/-. AGGRIEVED, THE ASSESSEE FILED AN APPE AL BEFORE THE CIT(A)-4, CHENNAI. BEFORE THE CIT(A), THE ASSESSEE FILED A C OPY OF THE SETTLEMENT DEED FROM WHICH THE CIT(A) FOUND THAT THE ASSESSEE OWNED A PROPERTY IN A COMMERCIAL COMPLEX AT MAVOOR ROAD, CALICUT SITUATED AT SURVEY NO. 5-24- 1218/5A AT KASABA VILLAGE OF KOZHIKODE TALUK, KERAL A WHICH WAS SETTLED BY HIM IN FAVOUR OF HIS WIFE AND CHILDREN VIDE THE SET TLEMENT DEED DATED 04.08.2006. THE ASSESSEE FURNISHED A PHOTOCOPY OF THE LEASE DEED DATED 18.12.2007 EXECUTED BETWEEN THE CO-OWNERS AND M/S. PRATEEK LIFESTYLES LIMITED. THE CIT(A) FOUND THAT M/S. PRATEEK APPAREL S PVT. LTD., CREDITED RS. 1,32,00,000/- IN ASSESSEES ACCOUNT AS RENTAL INCOM E AND DEDUCTED TDS AT RS. 13,20,000/- BUT THE ASSESSEE ADMITTED RS. 28,51,443 /- ONLY AS RENT AND PLEADED THAT BALANCE RENT AND CORRESPONDING TDS WAS ADMITTED AND CLAIMED BY CO-OWNERS IN THEIR RETURNS. THE CIT(A) ALSO FOU ND THAT THE ASSESSEE :-3-: ITA NO. 604/MDS/2017 CO NO. 77/MDS/2017 INCLUDED 1.125/10 TH SHARE OF HIS MINOR SON MASTER EHSAN RENTAL RECEIPT OF RS. 10,26,519/- AND TDS OF RS. 1,48,500/-. THE CIT(A) ALSO FOUND THAT MRS. KHAIRUNNISSA, PAN: CPCPK1736G, ASSESSEES WIFE INCO ME SHOULD BE CLUBBED WITH THE INCOME OF THE ASSESSEE U/S. 27 AND ACCORDI NGLY, HE DIRECTED THE AO TO DO SO. THUS, HE PARTLY ALLOWED THE APPEAL. 3. AGGRIEVED, THE DEPARTMENT FILED THE APPEAL PLEA DING, INTER ALIA, THAT THE CIT(A) ERRED IN LAW AND GIVING RELIEF TO T HE ASSESSEE BASED ON THE DOCUMENTS/EVIDENCES SUCH AS RETURN OF CO-OWNERS, LE ASE DEED DATED 18.12.2007 EXECUTED BETWEEN CO-OWNERS (INCLUDING TH E ASSESSEE) AND M/S. PRATEEK LIFESTYLE LIMITED AND SETTLEMENT DEED DATED 04.08.2006, SETTLING THE PROPERTY ORIGINALLY BELONGING TO THE ASSESSEE. THE CIT(A) ERRED IN LAW IN ADMITTING THE FRESH EVIDENCES PRODUCED DURING THE A PPEAL PROCEEDINGS, WITHOUT GIVING AN OPPORTUNITY TO THE AO UNDER RULE 46A OF THE ACT FOR HIS COMMENT/COUNTER ON THE FRESH EVIDENCES. THE CIT(A) ERRED IN LAW IN GRANTING A SUBSTANTIAL RELIEF, UNILATERALLY ON THE FRESH EVI DENCES PRODUCED BEFORE HIM, WHEN THE FACT REMAINS THAT DURING THE ASSESSMENT PR OCEEDINGS, THE ASSESSEE FAILED TO DISCHARGE HIS ONUS OF PROVING HIS CLAIM W ITH EVIDENCES BEFORE THE AO. 4. THE ASSESSEE FILED THE CO BELATEDLY BY 31 DAYS AND SOUGHT CONDONATION STATING THAT HIS COUNSEL HAD TO BE HOSP ITALIZED FOR CERVICAL SPINAL TREATMENT TILL THE END OF MAY 2017 AND RECORDS WERE WITH HIM. IN VIEW OF THAT :-4-: ITA NO. 604/MDS/2017 CO NO. 77/MDS/2017 NO ALTERNATE ARRANGEMENT COULD BE MADE. DUE TO SUC H GENUINE INABILITY, THE ASSESSEE PLEADED FOR CONDONATION. WE HEARD THE RIV AL CONTENTION AND CONDONE THE DELAY. THE ASSESSEE PLEADS IN THE CO, INTER ALIA, THAT THE CIT(A) HAS WIDE POWER U/S. 250(4) WHILE DISPOSING OF THE A PPEAL WHICH INCLUDES THE POWER TO MAKE ANY FURTHER ENQUIRY AS HE MAY THINKS FIT, IN PURSUANCE OF SUCH POWER THE APPELLATE AUTHORITY HAS SOUGHT THE EXPLAN ATION FROM THE ASSESSEE HOW THE OTHER CO-OWNER SHOULD CLAIM RENTAL INCOME O F THEIR RESPECTIVE SHARES, WHEREAS, THE GROSS RENTAL INCOME CREDITED TO THE AC COUNT OF THE ASSESSEE. IT WAS IN RESPONSE TO THE SAID CLARIFICATION SOUGHT BY THE CIT(A), THE ASSESSEE FURNISHED COPY OF SETTLEMENT DEED AND OTHER MATERIA LS. THEREFORE, CIT(A) HAS NOT COMMITTED ANY ERROR IN ACCEPTING THE DETAILS AN D CLARIFICATIONS ETC. 5. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIALS. ALTHOUGH, THE ASSESSEE CLAIMED TO HAVE SETTLED HIS PROPERTY VIDE SETTLEMENT DEED DATED 04.08.2006 AND THEN ENTERED I NTO A LEASE AGREEMENT WITH CO-OWNERS WITH M/S. PRATEEK LIFESTYLE LIMITED AS ON 18.12.2007, THE TDS CERTIFICATE IS CLAIMED TO HAVE BEEN ISSUED IN THE N AME OF THE ASSESSEE ONLY EVEN DURING THE PERIOD RELATED TO THIS ASSESSMENT Y EAR FOR THE TOTAL RENTAL CONSIDERATION AND THE TDS IS ALSO MADE IN HIS NAME. ALTHOUGH, THE OTHER CO- OWNERS HAVE CLAIMED TO HAVE FILED THEIR RETURNS ADM ITTING RENTAL INCOME, IT APPEARS, THAT THE CORRESPONDING TDS IS NOT IN THEIR NAME. FURTHER, THE SETTLEMENT DEED AND OTHER PARTICULARS WERE FURNISH ED TO THE CIT(A) AND THE :-5-: ITA NO. 604/MDS/2017 CO NO. 77/MDS/2017 ASSESSING OFFICER HAS NOT BEEN GIVEN AN OPPORTUNITY UNDER RULE 46A TO EXAMINE ALL THE CONNECTED ISSUES. WE ARE OF THE OPI NION, THAT THIS ISSUE SHOULD BE REMITTED BACK TO THE AO FOR DUE EXAMINATION AND FOR PASSING A SPEAKING ORDER, AFTER AFFORDING DUE OPPORTUNITY TO THE ASSES SEE AND ACCORDINGLY DO SO. 6. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED AND THE ASSESSEES CROSS OBJECTION IS DISMISSED. ORDER PRONOUNCED ON TUESDAY, THE 11 TH DAY OF JULY, 2017 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, 0 /DATED: 11 TH JULY, 2017 JPV & )12 32 /COPY TO: 1. %/ APPELLANT 2. )*% /RESPONDENT 3. 4 ( )/CIT(A) 4. 4 /CIT 5. 2 ) /DR 6. 7 /GF