Dy.CIT, -9(1), Hyderabad V. Smt. Chennamaneni Mangamma, Nalgonda District

ITA 742/HYD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87244 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 24-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: K C DEVDAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI P. M. JAGTAP, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA.NO.742/HYD/2014 ASSESSMENT YEAR 2007-2008 DCIT 9 (1) HYDERABAD. VS. SMT. P. VIJAYALAXMI, L/R OF LATE SMT. CHENNAMANENI MANGAMMA, 2-73, RAMANNAPET, VARKATPALLI (V), NALGONDA DIST., PAN AAUPC0604J (APPELLANT) (RESPONDENT) FOR REVENUE : MR.RAJAT MITRA FOR ASSESSEE : MR. K.C. DEVDAS DATE OF HEARING : 05.01.2015 DATE OF PRONOUNCEMENT : 09.01.2015 ORDER PER P.M. JAGTAP, A.M. THIS APPEAL IS PREFERRED BY REVENUE AGAINST THE ORDER OF LD. CIT(A)-VI, HYDERABAD DATED 27.12.2013 ON THE FOLLOWING GROUNDS : 1. THE ORDER OF LD. CIT(A) IS AGAINST FACTS OF THE CA SE. 2. WHETHER THE LD. CIT(A) IS CORRECT IN RELYING ON THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN T HE CASE OF CIT VS. SHAMBHU INVESTMENT PVT. LTD., CONFIRMING THE DECISION OF HONBLE HIGH COURT OF CALCUTTA IN VIEW OF THE FACT THAT, THE ISSUE INVOLV ED IN THE INSTANT CASE IS DIFFERENT FROM THE FACTS OF THE CASE RELIED UPON BY THE LD. CIT(A). 2 ITA.NO.742/HYD/2014 SMT. CHENNAMANENI MANGAMMA, HYDERABAD. 3. WHETHER THE LD. CIT(A) IS CORRECT IN LAW IN HOLDIG THAT THE INCOME FROM COMPOSITE LEASE DEEDS IS TO BE TREATED AS INCOME FROM HOUSE PROPERTY INSPITE OF CLEAR MENTION IN THE LEASE DEED THAT 40% OF THE AMO UNT PAYABLE BY THE TENANT IS TOWARDS AMENITIES PROVIDED . 4. WHETHER THE LD. CIT(A) IS CORRECT IN LAW IN HOLDING THAT THE INCOME FROM COMPOSITE LEASE DEEDS IS TO BE TREATED AS INCOME FROM HOUSE PROPERTY IN THE LIGH T OF THE SPECIFIC CLAUSE (9) OF THE LEASE DEED WHICH MEN TIONS THAT IN CASE OF DELAY IN INSTALLING THE GENERATOR BY THE LESSOR, THEN THE COMMENCEMENT OF THE LEASE SHALL BE POSTPONED TO SUCH PERIOD OF DELAY AND THE RENT FOR THE SCHEDULE A PREMISES AND THE SCHEDULE B ASSETS SHALL START ONLY AFTER THE INSTALLATION AND THE PROPER WO RKING OF THE GENERATOR, WHICH MEANS THAT THE ASSESSEE HA D BIFURCATED THE PROPERTY INTO TWO DIFFERENT PREMISES VIZ. SCHEDULE A PREMISES AND SCHEDULE B ASSETS. 5. WHETHER THE LD. CIT(A) IS CORRECT IN LAW IN HOLDING THAT THE INCOME FROM COMPOSITE LEASE DEEDS IS TO BE TREATED AS INCOME FROM HOUSE PROPERTY RELYING ON THE DECISION OF THE HONBLE HIGH COURT OF KOLKATA IN TH E CASE OF KANAK INVESTMENT PVT. LTD., 95 ITR 419 (CAL .) IN WHICH CASE, THE HONBLE HIGH COURT HAD HELD THAT IN CASE THERE WAS COMPOSITE RENT CHARGED FOR LETTING O UT THE PROPERTY AS WELL AS THE SERVICES RENDERED, IT H AS TO BE SPLIT UP AND THE AMOUNT WHICH IS ATTRIBUTABLE TO THE PROPERTY TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY AND THE AMOUNT RELATABLE TO THE RENDERING OF SERVICES SHOULD BE ASSESSED AS INCOME FROM OTHER SOURCES. 6. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND ALSO PERUSED MATERIAL AVAILABLE ON RECORD. 3. AS SUBMITTED BY LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET, ASSESSEE HAS ALREADY EXPIRED WAY BACK O N 2 ND SEPTEMBER, 2013 I.E., WELL BEFORE THE IMPUGNED ORDE R CAME TO BE PASSED BY LD. CIT(A) ON 27.12.2013. HE HAS ALSO FILED COPY 3 ITA.NO.742/HYD/2014 SMT. CHENNAMANENI MANGAMMA, HYDERABAD. OF DEATH CERTIFICATE ISSUED BY GREATER HYDERABAD MUNIC IPAL CORPORATION SHOWING THE DATE OF DEATH OF THE ASSESS EE AS 2 ND SEPTEMBER, 2013. THE IMPUGNED ORDER PASSED BY LD. C IT(A) THUS IS IN THE NAME OF A DEAD PERSON AND THE SAME HAS BEEN SO PASSED BECAUSE THE INTIMATION OF DEATH OF ASSESSEE WAS NOT GIVEN TO LD. CIT(A) AS AGREED EVEN BY LD. COUNSEL F OR THE ASSESSEE. IN THE CASE OF CIT VS. DALUMAL SHYAMUMA L ( 2005 ) 276 ITR 62 THE DECISION OF THE TRIBUNAL HOLDING THE ASSESSMENT ORDER PASSED BY A.O. AGAINST A DEATH PER SON TO BE A NULLITY WAS UPHELD BY HONBLE MADHYA PRADESH HIGH COURT. IT WAS FURTHER HELD BY HONBLE MADHYA PRADESH HIGH COURT THAT THE TRIBUNAL SHOULD HAVE REMANDED THE CASE TO THE A.O. TO ENSURE COMPLIANCE OF SECTION 159 OF THE ACT AND FOR PASSING APPROPRIATE ORDER OF ASSESSMENT, AFTER DUE NOTICE T O THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE. KEEPING IN VIEW THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN TH E CASE OF CIT VS. DALUMAL SHYAMUMAL (SUPRA), AND HAVING REGAR D TO THE FACTS OF THE CASE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY LD. CIT(A) IN THE NAME OF DECEASED-ASSESSEE HOLDING THE SAME AS NULLITY AND REMIT THE MATTER BACK TO HIM WITH A DIRECTION TO PASS A FRESH ORDER DISPOSING OF THE APPEAL OF THE A SSESSEE AFTER COMPLYING WITH THE REQUIREMENTS OF SECTION 159(2). THE LEGAL REPRESENTATIVE OF THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL THE POSSIBLE COOPERATION TO THE LD. CIT(A) BY FURNISHIN G ALL THE RELEVANT PARTICULARS AND DETAILS REQUIRED BY HIM FO R THE PURPOSE OF DISPOSAL OF THE APPEAL. 4. IN THE RESULT, APPEAL OF THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4 ITA.NO.742/HYD/2014 SMT. CHENNAMANENI MANGAMMA, HYDERABAD. ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2015. SD/- SD/- (ASHA VIJAYARAGHAVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 09 TH JANUARY, 2015 VBP/- COPY TO 1. THE DEPUTY COMMISSIONER OF INCOME TAX, ROOM NO. 245 , BLOCK 2D, SECOND FLOOR, I.T. TOWERS, A.C. GUARDS, M ASAB TANK, HYDERABAD. 2. SMT. P. VIJAYALAXMI, HYDERABAD L/R OF LATE SMT. CHENNAMANENI MANGAMMA, 2-73, RAMANNAPET, VARKATPALLI VILLAGE, NALGONDA DISTRICT. 3. CIT(A)-VI, 6A, I.T. TOWRS, A.C. GUARDS, HYDERABAD-0 04. 4. CIT-VI, HYDERABAD. 5. D.R. I.T.A.T. B BENCH, HYDERABAD.