Income Tax Appellate Tribunal - Chennai
Abdul Khadir Rahmath Ilahi, Chennai vs Acit, Chennai on 11 July, 2017
आयकर अपील य अ धकरण, ' ए ' यायपीठ, चे नई
IN THE INCOME TAX APPELLATE TRIBUNAL
"A" BENCH, CHENNAI
ी एन.आर.एस. गणेशन, या यक सद य एवं ी एस जयरामन, लेखा सद य केसम#
BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND
SHRI S. JAYARAMAN, ACCOUNTANT MEMBER
आयकर अपील सं./ I.T.A. No. 604/Mds/2017
&
C.O. No. 77/Mds/2017
नधारण वष/Assessment Year : 2012-13
Assistant Commissioner of Income Tax, Shri Abdul Khadir Rahmath Ilahi,
Non-Corporate Circle 3, Vs. No. 28, Crescent Park,
121, Mahatma Gandhi Road, Mayor Shivashanmugham Street,
Nungambakkam, Nungambakkam,
Chennai - 600 034. Chennai - 600 034.
[PAN: AIDPR 6696Q]
(अपीलाथ /Appellant) (Respondent & Cross Objector)
अपीलाथ% क& ओर से/Appellant by : Shri V. Sreenivasan, JCIT
)*यथ% क& ओर से/Respondent by : Shri Cyriac Tom, Advocate
सुनवाई क& तार ख/Date of Hearing : 29.06.2017
घोषणा क& तार ख/Date of Pronouncement : 11.07.2017
आदे श /O R D E R
PER S. JAYARAMAN, ACCOUNTANT MEMBER:
The Revenue filed an appeal against the order of the 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 return for assessment year 2012-13 admitting a total income of Rs. 28,51,440/-. While making the assessment, the Assessing Officer found that the admitted income is only 2/10th of share income, hence, he required the assessee to file the details towards which assessee filed Form 26AS only. The AO called for details of other co-owners and informed the assessee that in the absence of the required proof the entire rental income will be assessed in his hands. Since, assessee failed to comply, he assessed the income from house property at Rs. 91,24,617/-. Aggrieved, the assessee filed an appeal before the CIT(A)-4, Chennai. Before the CIT(A), the assessee filed a copy 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, Kerala which was settled by him in favour of his wife and children vide the settlement 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 Apparels Pvt. Ltd., credited Rs. 1,32,00,000/- in assessee's account as rental income 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 found that the assessee :-3-: ITA No. 604/Mds/2017 CO No. 77/Mds/2017 included 1.125/10th 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, assessee's wife income should be clubbed with the income of the assessee u/s. 27 and accordingly, he directed the AO to do so. Thus, he partly allowed the appeal.
3. Aggrieved, the department filed the appeal pleading, inter alia, that the CIT(A) erred in law and giving relief to the assessee based on the documents/evidences such as return of co-owners, lease deed dated 18.12.2007 executed between co-owners (including the 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 appeal 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 evidences produced before him, when the fact remains that during the assessment proceedings, the assessee failed to discharge his onus of proving his claim with evidences before the AO.
4. The assessee filed the CO belatedly by 31 days and sought condonation stating that his counsel had to be hospitalized 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 such genuine inability, the assessee pleaded for condonation. We heard the rival 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 appeal 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 explanation from the assessee how the other co-owner should claim rental income of their respective shares, whereas, the gross rental income credited to the account 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 materials. Therefore, CIT(A) has not committed any error in accepting the details and 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 into 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 name of the assessee only even during the period related to this assessment year 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 admitting rental income, it appears, that the corresponding TDS is not in their name. Further, the settlement deed and other particulars were furnished 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 opinion, 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 assessee and accordingly do so.
6. In the result, the revenue's appeal is allowed and the assessee's cross objection is dismissed.
Order pronounced on Tuesday, the 11th day of July, 2017 at Chennai.
Sd/- Sd/-
(एन.आर.एस. गणेशन) (एस जयरामन)
(N.R.S. GANESAN) (S. JAYARAMAN)
या यक सद य/Judicial Member लेखा सद य/Accountant Member
चे नई/Chennai,
0दनांक/Dated: 11th July, 2017
JPV
आदे श क& ) त1ल2प अ3े2षत/Copy to:
1. अपीलाथ%/Appellant 2. )*यथ%/Respondent 3. आयकर आयु4त (अपील)/CIT(A)
4. आयकर आय4
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