9911796707
TMI Blog2002 (9) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) being bad in law may be set aside and the order of the Assessing Officer be restored." 2. The brief facts of the case are that the assessee is stated to be I.G. Police and derived income from salary and house property. The assessee has constructed a house at Mahanagar, Lucknow and the total cost of construction had been shown at Rs. 6,83,692. The rental income derived from this house has been distributed equally between the co-owner, Shri C.K. Malik (assessee), his wife, Smt. Laxmi Malik and his sons, Saurabh Malik and Neeraj Malik, whereas the investment in the house had been shown as follows:- 1. Shri C.K. Malik Rs. 5,54,791 2. Smt. Laxm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent at 1/4th was liable to be included in his income. The assessee has further contended before the appellate authority that as per section 45 of the Transfer of Property Act, the rental income in the share of 1/4th could be included in the income of the assessee. The assessee also relied upon the judgment of Allahabad High Court in Saiyad Abdullah v. Ahmad AIR 1929 All. 817. The ld. DCIT(A) after considering section 45 directed that the house property income to the extent of 1/4th is liable to be included in the income of the assessee. The Revenue is in appeal before us on the grounds mentioned above. We may mention here that earlier this case was heard by another SMC Bench, ITAT, Allahabad, but was released. In the appeal papers we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . According to the lease deed, the assessee was required to pay rental of Rs. 1894.30 p. per annum. This plot was constructed by the assessee and others. It is not in dispute that the lease hold lights are personal lights to enjoy the property subject to payment of the rent as fixed in the lease deed. The lease deed has nowhere defined the shares of the lessee i.e. the assessee and his family members. Even obviously the lease deed being personal in nature would not define the rights and shares of the parties. According to the lease deed, the lessees are entitled to enjoy the property as per the terms contained in the lease deed. We are not mentioning the terms contained in the lease deed as the same are not relevant for the disposal of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out of funds belonging to them in common, they are entitled to interest in such property identical as nearly as may be with the interest to which they were respectively entitled in the fund. If such consideration is paid out of separate funds belonging to them respectively then such persons will be entitled to interest in such property in proportion to the shares of the consideration which they respectively advanced. The last requirement of section is that in the absence of evidence as to the interest in the funds to which they were respectively entitled or as to the shares which they respectively advanced such persons shall be presumed to be equally interested in the property. The third requirement is the exception to Rule. The first two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdullah's, which was relied upon by the assessee as well as the First Appellate Authority in passing the impugned order. In this authority, it is held: - "In the absence of specification of the shares purchased by two persons in the sale deed, it must be held that both purchased equal shares." There is no quarrel on the legal proposition, but in the case in hand, there is no sale deed in favour of the assessee and others. Only a lease deed was granted by the Lucknow Development Authority, which has defined the personal rights of the parties to enjoy the property. In this appeal, the shares of the investment of various persons are very specific and as such this authority is clearly distinguishable and is not applicable to the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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