Shri Tushar Pravinchandra Shah, Bharuch v. The DY.CIT., Cent.Circle-1,, Baroda

ITA 1272/AHD/2006 | 2003-2004
Pronouncement Date: 20-08-2010 | Result: Dismissed

Appeal Details

RSA Number 127220514 RSA 2006
Assessee PAN ALVPS5380H
Bench Ahmedabad
Appeal Number ITA 1272/AHD/2006
Duration Of Justice 4 year(s) 3 month(s) 2 day(s)
Appellant Shri Tushar Pravinchandra Shah, Bharuch
Respondent The DY.CIT., Cent.Circle-1,, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 20-08-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 19-12-2008
Date Of Final Hearing 11-08-2010
Next Hearing Date 11-08-2010
Assessment Year 2003-2004
Appeal Filed On 18-05-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND N. S. SAINI AM) ITA NO.1272/AHD/2006 A. Y.: 2003-04 SHRI TUSHAR PRAVINCHANDRA SHAH 106 PRITAM SOCIETY NO.2 BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA ALVPS 5380 H (APPELLANT) (RESPONDENT) ITA NO.1273/AHD/2006 A.Y.: 2003-04 SHRI RAJESHKUMAR KESHRICHAND SHAH 106 PRITAM SOCIETY NO.2 BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA PA NO. AARHS 7510 M (APPELLANT) (RESPONDENT) ITA NO.1274/AHD/2006 A. Y.: 2003-04 SMT. PURVIBEN P. SHAH 106 PRITAM SOCIETY NO.2 BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA PA NO. AIHPS 2645 G (APPELLANT) (RESPONDENT) ITA NO.1275/AHD/2006 A.Y.: 2003-04 SMT. LILABEN SHANTILAL SHAH 106 PRITAM SOCIETY NO.2 BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA PA NO. AHXPS 2987 A (APPELLANT) (RESPONDENT) ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 2 ITA NO.1276/AHD/2006 A.Y.: 2003-04 SMT. DAXABEN P. SHAH 106 PRITAM SOCIETY NO.2 BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA PA NO. AHXPS 2973 G (APPELLANT) (RESPONDENT) ITA NO.1277/AHD/2006 A.Y.: 2003-04 SHRI PUNITKUMAR SHANTILAL SHAH 106 PRITAM SOCIETY NO.2 BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA PA NO. AIFPS 2952 Q (APPELLANT) (RESPONDENT) ITA NO.1278/AHD/2006 A.Y.: 2003-04 SMT. RUPUL RAJESHKUMAR SHAH B-1122 LALLUBHAI CHAKLA BHARUCH VS THE D. C. I. T. CENTRAL CIRCLE-1 BARODA PA NO. AIHPS 2644 H (APPELLANT) (RESPONDENT) APPELLANTS BY SHRI M. J. SHAH AR RESPONDENT BY SHRI R. K. DHANESTA DR O R D E R PER BHAVNESH SAINI: THIS ORDER SHALL DISPOSE OF ALL THE ABOVE APPEALS FILED BY DIFFERENT ASSESSEE ON COMMON GROUN D OF APPEAL. 2. ALL THE APPEALS WERE EARLIER DISMISSED IN DEFAUL T VIDE ORDER DATED 19-12-2008 WHICH WERE RECALLED BY ALLOWING THE MISC . APPLICATIONS FILED BY THE ASSESSEES VIDE ORDER DATED 07-08-2009. ALL T HE APPEALS WERE ACCORDINGLY FIXED BY THE REGISTRY FOR FINAL HEARING . ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 3 3. THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES SUBMITTED THAT THE LEARNED CIT(A) PASSED THE MAIN ORDER IN THE CASE OF THE ASSESSEE SHRI PUNITKUMAR SHANTILAL SHAH IN ITA NO.1277/AHD/2006 A ND FOLLOWED THE SAME ORDER IN THE REMAINING APPEALS. BOTH THE PARTI ES THEREFORE ARGUED MAINLY IN THE CASE OF SHRI PUNITKUMAR SHANTILAL SHA H AND SUBMITTED THAT ORDER IN THIS CASE MAY BE FOLLOWED IN THE CASE OF THE OTHER ASSESSEES BEING THE ISSUE/GROUND OF APPEAL COMMON IN ALL THE CASES. ITA NO.1277/AHD/2006 (ASSESSEE: SHRI PUNITKUMAR SHANTILAL SHAH) 4. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-IV AHMEDABAD DATED 24-02-2006 FOR ASSESSMENT YEAR ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL: 1. THE C. I. T.(APPEALS) ERRED IN HOLDING THAT THE RENTAL INCOME OF RS.11 23 695/- WAS INCOME FROM OTHER SOURCES AND NOT INCOME FROM HOUSE PROPERTY AS CLAIM ED BY THE APPELLANT. 2. THE C. I. T. (APPEALS) ERRED IN SO FAR AS SHE DI D NOT MAKE A DISTINCTION BETWEEN THE LEASE OF ACME PROPER TY AND SAHAR PLAZA PROPERTY WHICH ARE A PERPETUAL LEAS E AND THE LEASES IN CENTRE POINT WHICH ARE FOR A PERI OD OF 12 YEARS WITH THE RIGHT OF EXTENSION. 3. THE C. I. T. (APPEALS) IN VIEW OF HER DECISION O N THE FIRST GROUND ERRED IN HOLDING THAT THE APPELLANT WAS NOT ENTITLED TO THE DEDUCTION OF 30% OF RS.11 23 695/- EQUAL TO RS.3 37 109/- 5. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRE SS GROUND NO.4 WITH REGARD TO DEDUCTION U/S 80 IA OF THE IT ACT. T HE SAME IS ACCORDINGLY DISMISSED AS WITHDRAWN. 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIALS AVAILABLE ON RECORD. ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 4 7. ON FIRST THREE EFFECTIVE GROUNDS OF APPEAL THE ASSESSEE HAS DISPUTED THE ABOVE ADDITIONS TREATED BY THE AO AS I NCOME FROM OTHER SOURCES INSTEAD OF INCOME FROM HOUSE PROPERTY DECLA RED BY THE ASSESSEE IN HIS RETURN OF INCOME THEREBY DISALLOWING THE CLA IM OF 30% DEDUCTION CLAIMED U/S 24 OF THE IT ACT. THE FACTS OF THE CASE AS DISCUSSED BY THE AO IN THE ASSESSMENT ORDER ARE THAT THE ASSESSEE DE RIVED INCOME FROM HOUSE PROPERTY SALE OF AIR CONDITIONERS AND OTHER SOURCES. FROM THE DETAILS FURNISHED BY THE ASSESSEE THE AO NOTICED TH AT THE ASSESSEE HAS SHOWN RS.12 38 790/- UNDER THE HEAD INCOME FROM HO USE PROPERTY. THIS COMPRISES OF RENT RECEIVED ON VARIOUS PROPERTI ES. THE ASSESSEE DID NOT FURNISH THE BALANCE SHEET ALONG WITH THE RETURN OF INCOME HENCE BY NOTICE ISSUED U/S 142(1) OF THE IT ACT DATED 29-08- 2005 THE AO REQUESTED THE ASSESSEE TO FURNISH DETAILS OF ALL MO VABLE AND IMMOVABLE PROPERTIES HELD BY HIM. IN RESPONSE TO THE SAME TH E ASSESSEE SUBMITTED HIS BALANCE SHEET VIDE HIS LETTER DATED 14-09-2005. THE AO NOTICED FROM THE BALANCE SHEET SO SUBMITTED THAT THE ASSESSEE CL AIMED RENT RECEIPT OF RS.13 33 695/- FROM PROPERTY AT ACME PLAZA MUMBAI AS INCOME FROM HOUSE PROPERTY THOUGH THE SAME WAS NOT OWNED BY HI M. IT WAS ALSO NOTICED BY THE AO THAT THE ASSESSEE WAS ALSO PAYING RENT OF RS.2 10 000/- ON THIS PROPERTY. THEREFORE THE AO B Y HIS LETTER DATED 17-10-2005 ASKED THE ASSESSEE TO EXPLAIN WHY THE RE NT RECEIVED BY THE ASSESSEE ON THIS PROPERTY SHOULD NOT BE TREATED AS INCOME FROM OTHER SOURCES INSTEAD OF TREATING THE SAME AS INCOME FR OM HOUSE PROPERTY. IN THE ASSESSMENT PROCEEDINGS THE ASSESSEE SUBMITT ED THAT THE LEGAL OWNER OF THE PROPERTY IS SMT. DAXABEN SHAH AND BY V IRTUE OF LEAVE AND LICENSE AGREEMENT THE ASSESSEE BECAME OWNER U/S 23 READ WITH SECTION 269 UA OF THE IT ACT. THE AO CONSIDERED THE ABOVE S UBMISSIONS BUT DID NOT ACCEPT THE ARGUMENT OF THE ASSESSEE BY REFERRIN G TO THE PROVISIONS OF SECTION 27 OF THE IT ACT WHEREIN DEEMED OWNERSHIP HAS BEEN SPECIFIED AS UNDER: ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 5 * A PERSON WHO IS ALLOWED TO TAKE OR RETAIN POSSESS ION OF ANY BUILDING OR PART THEREOF IN PART PERFORMANCE OF A CONTRACT OF THE BUILDING OR PART THEREOF IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PRICING ACT 1882 (4 OF 1882) SHALL BE DEEMED TO BE THE OWNER OF THAT BUIL DING OR PART THEREOF; * A PERSON WHO ACQUIRES ANY RIGHTS (EXCLUDING ANY R IGHTS BY WAY OF A LEASE FROM MONTH TO MONTH OR FOR A PERI OD NOT EXCEEDING ONE YEAR) IN OR WITH RESPECT TO ANY BUILDING OR PART THEREOF BY VIRTUE OF ANY SUCH TRANSACTION AS IS REFERRED TO IN CLAUSE (F) OF SECT ION 269UA SHALL BE DEEMED TO BE THE OWNER OF THAT BUILDING OR PART THEREOF. ACCORDING TO THE AO AS PER SECTION 27(IIIB) OF THE IT ACT IF THE RIGHTS ARE ACQUIRED BY MEANS OF A LEASE FROM MONTH TO MONTH OR FOR A PERIOD NOT EXCEEDING ONE YEAR THEN THE LESSEE CANNOT BE TREAT ED AS DEEMED OWNER FOR THE PURPOSE OF SECTION 22 TO SECTION 26 OF THE IT ACT. IT WAS FURTHER STATED BY THE AO THAT AS PER SECTION 107 OF THE TRA NSFER OF PROPERTY ACT LEASE OF IMMOVABLE PROPERTY FROM YEAR TO YEAR OR FO R ANY TERM EXCEEDING ONE YEAR OR RESERVING YEARLY RENT CAN BE MADE BY A REGISTERED INSTRUMENT. IN OTHER LEASES BY AGREEMENT ACCOMPANIED BY DELIVERY OF POSSESSION AND THEREFORE IF A LEASE AGREEMENT IS NOT REGISTERED IT WILL BE TREATED AS LEASE FROM MONTH TO MONTH. THE AO RELIED UPON THE DECISIO NS OF THE HONBLE SUPREME COURT IN THE CASES OF BISHWABANI PVT. LTD. VS SANTOSH KUMAR AIR 1980 SC 226 ANAND NIVAS PVT. LTD. VS ANANDJI A IR 1965 SC 414 AND RAM KUMAR VS JAGADISH CHANDER IAR 1952 SC 2 3 WHEREIN IT HAS BEEN HELD THAT IN THE ABSENCE OF A REGISTERED L EASE DEED THE PERSON SO PUT IN THE POSSESSION WOULD BE A TENANT FROM MON TH TO MONTH BASIS. THEREFORE PRIMARY CONDITION FOR A LEASE DEED OF A YEAR OR MORE THAN THAT IS THAT THE DEED SHOULD BE REGISTERED. RELYING ON T HE SAME THE AO CONCLUDED THAT THE ASSESSEE HAS ENTERED INTO TENANC Y AGREEMENT WITH MRS. DAXABEN P. SHAH WITH RESPECT TO THE PROPERTY A T ACME PLAZA AND IT IS AN UNREGISTERED DOCUMENT SIGNED BY THE SELLER PURCHASER AND TWO ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 6 WITNESSES AND THE SAME WAS NOT REGISTERED U/S 107 O F THE TRANSFER OF PROPERTY ACT AND THEREFORE THE ASSESSEE IS A TENAN T ON MONTH TO MONTH BASIS AND THE ASSESSEE IS NOT A DEEMED OWNER AS ENV ISAGED U/S 27 OF THE IT ACT AND IN THIS VIEW THE SUBSEQUENT STAGES THAT THE ASSESSEE HAS GIVEN THIS PROPERTY ON FURTHER RENT AND RECEIVED INCOME I N HIS OWN RIGHT ARE HAS NO RELEVANCE AND ON THAT BASIS THE AO HELD THAT THE ASSESSEE IS NOT DEEMED OWNER OF THE PROPERTY AT ACME PLAZA. 8. THE FINDINGS OF THE AO WAS CHALLENGED BEFORE THE LEARNED CIT(A) AND IN THE APPELLATE PROCEEDINGS THE ASSESSEE MADE A DETAILED SUBMISSIONS AND IT WAS STATED THAT THE ASSESSEE IS NOT LEGAL OWNER OF THE PROPERTY AT ACME PLAZA AND THAT HE IS ONLY IN POSSE SSION OF THE PROPERTY AND IS ENTITLED TO RECEIVE MONEY IN HIS OWN RIGHT B Y SUB-LEASING THE SAID PROPERTY. THE TENANCY AGREEMENT IS EXTENDED FROM TI ME TO TIME AND THAT HE IS THE ONLY OWNER OF THE PROPERTY WHO ENJOYS ALL THE RIGHTS OF THE SAME. BY THE TENANCY AGREEMENT LEGAL OWNER OF THE PROPERT Y SMT. DAXABEN P. SHAH HAS ENTITLED THE ASSESSEE TO ENJOY ALL THE RIG HTS INCLUDING SUB- LEASING OF THE PROPERTY AND THEREFORE THE ASSESSEE HAS RIGHTLY TREATED THE INCOME FROM THIS PROPERTY AS INCOME FROM HOUSE PROP ERTY. THE ASSESSEE MAINLY CONTENDED THAT IT IS COVERED BY THE PROVISIO NS OF SECTION 269 UA(F) (I) OF THE IT ACT AND POINTED OUT THE EFFECTS OF NO N-REGISTRATION OF DOCUMENTS AS UNDER: IN THE ASSESSMENT ORDER VIDE PARA 2.5 THE A. O. HA S MENTIONED THAT THE APPELLANT IS A TENANT ON MONTH T O MONTH BASIS (OR ENTERED INTO LEASE FROM MONTH TO MONTH BA SIS) AND THEREFORE THE APPELLANT DOES NOT FALL UNDER THE CAT 4EGORY OF DEEMED OWNER AS ENVISAGED BY SECTION 27(IIIB) OF TH E ACT. THE A. O. HAS PLACED RELIANCE ON SECTION 107 OF THE TRA NSFER OF PROPERTY ACT 1882. AS PER SECTION 107 OF THE TRANSFER OF PROPERTY ACT 1882 A LEASE OF IMMOVABLE PROPERTY FROM YEAR TO YEAR OR F OR ANY TERM EXCEEDING ONE YEAR OR RESERVING A YEARLY RENT CAN BE MADE ONLY BY A REGISTERED INSTRUMENT. ALL OTHER LEASES O F IMMOVABLE ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 7 PROPERTY MAY BE MADE EITHER BY A REGISTERED INSTRUM ENT OR BY AGREEMENT ACCOMPANIED BY DELIVERY OF POSSESSION. IT IS CONTENTION OF THE A. O. THAT SINCE THE LEASE AGREEMENT ENTERED INTO BY THE APPELLANT IS NOT REGISTERED THE APPELLANT IS DEEMED TO BE TENANT FOR MONTH-TO-MONTH BASIS AND TH EREFORE HIT BY SECTION 27(IIIB) OF THE ACT. THE A. O. HAS M AINLY CONTENDED THAT HIT LEASE DEED SHOULD HAVE BEEN REGI STERED. WE MOST RESPECTFULLY SUBMIT THAT THE A.O. HAS NOT A PPRECIATED THE FACTS RELEVANT TO THE APPELLANT IN A PROPER PER SPECTIVE. AS PER SECTION 107 OF THE TOPA A LEASE OF IMMOVABLE PROPERTY FROM YEAR TO YEAR OR FOR A TERM EXCEEDING ONE YEAR CAN BE MADE ONLY BY A REGISTERED INSTRUMENT. WE SUBMIT THA T DESPITE THE LEASE DEED IS NOT REGISTERED IT WOULD NOT TAKE AWAY THE BENEFIT OF BEING AN OWNER. THERE IS NOTHING CONTAIN ED IN TOPA WHICH MENTIONS THAT IF THE LEASE DEED IS NOT REGIST ERED THE PERSON IN POSSESSION OF THE PROPERTY WOULD NOT BE C ONSIDERED AS THE OWNER OF THE PROPERTY. THERE CAN BE NO ADVER SE IMPACT. FOR THE PURPOSE OF HOUSE PROPERTY WHAT IS IMPORTANT IS OWNER. IT IS NOWHERE MENTIONED IN TOPA THAT IF TH E DEED IS NOT REGISTERED IN POSSESSION OF THE PROPERTY WOULD NOT BE CONSIDERED AS THE OWNER OF THE PROPERTY. FOR READY REFERENCE WE REPRODUCE HEREIN BELOW THE EFFECTS OF NON-REGIST RATION OF A DOCUMENT AS PER SECTION 49 OF THE REGISTRATION ACT 1908. EFFECTS ON NON-REGISTRATION OF DOCUMENTS REQUIRED T O BE REGISTERED. 49. NO DOCUMENT REQUIRED BY SECTION 17 OF BY ANY PR OVISION OF THE TOPA 1882 (4 OF 1982) TO BE REGISTERED SHA LL A. AFFECT ANY IMMOVABLE PROPERTY COMPRISING T HEREI N OR B. CONFER ANY POWER TO ADOPT OR C. BE RECEIVED AS EVIDENCE OF ANY TRANSACTION AFFECTIN G SUCH PROPERTY OR CONFERRING SUCH POWER UNLESS IT HAS BE EN REGISTERED: PROVIDED THAT AN UNREGISTERED DOCUMENT AFFECTING IMMOVABLE PROPERTY AND REQUIRED BY THIS ACT OR THE TOPA 1881 2 (4 OF 1882) TO BE REGISTERED MAY BE RECEIVED AS EVIDENCE OF A ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 8 CONTRACT IN A SUIT FOR SPECIFIC PERFORMANCE U9NDER CHAPTER II OF THE SPECIFIC RELIEF ACT 1877 (1 OF 1877) OR AS EVI DENCE OF ANY COLLATERAL TRANSACTION NOT REQUIRED TO BE ATTRACTED BY REGISTERED INSTRUMENT; ON THE PERUSAL OF THE ABOVE YOUR KIND OFFICE WOULD OBSERVE THAT NOWEHERE IT IS MENTIONED THAT IF THE AGREEMENT IS NOT REGISTERED IT WOULD LEAD TO A CONSTRUCTION THAT THE APPELLANT IS A TENANT ON A MONTH TO MONTH BASIS AND CANNOT BE CO NSIDERED AS THE OWNER OF THE PROPERTY. THE CONTENTION OF THE A.O. THAT SINCE THE DEED IS NOT REGISTERED THE APPELLANT IS A TENANT FOR MONTH TO MONTH BASIS IS NOT AS PER TOPA OR EVEN AS PER THE REGISTRATION ACT. WE WOULD FURTHER LIKE TO MENTION THAT NON-REGISTRAT ION OF A DOCUMENT WOULD NOT TAKE AWAY THE VALIDITY OF THE AG REEMENT. NOWHERE IT IS PROVIDED IN THE REGISTRATION ACT 190 8 THAT THE AGREEMENT IF NOR REGISTERED IS INVALID. FURTHER TH ERE IS NO ALLEGATION THAT THE AGREEMENT IS BOGUS OR SHAM. THE A. O. HAS ACCEPTED THE SANCTITY OF THE AGREEMENT. WE THEREFOR E SUBMIT THAT THE GROUND USED BY THE A. O. FOR DENYING THE B ENEFIT TO THE APPELLANT IS NOT VALID. FURTHER IT IS THE CONTENTION OF THE A. O. THAT THE APPELLANT IS A TENANT FOR MONTH TO MONTH BASIS. WE WOULD LIKE TO M ENTION THAT STILL THE APPELLANT WOULD BE CONSIDERED AS OWN ER OF THE PROPERTY AS PER THE TOPA 1882. IT IS SPECIFICALLY PROVIDED IN THE TOPA THAT LEASE FOR A PERIOD OF LESS THAN ONE Y EAR (MONTH TO MONTH BASIS) MAY BE MADE EITHER BY A REGISTERED INSTRUMENT OR BY AGREEMENT ACCOMPANIED BY DELIVERY OF POSSESSION (EMPHASIS SUPPLIED) YOUR KIND OFFICE WOULD APPRECIATE THAT FACTUALLY IT IS ACCEPTED THAT THE APPELLANT HAS BEEN GIVEN THE POSSESSION OF THE PROPERTY. THE A.O. HAS NOT CONTROVERTED THIS FACT. THEREFORE IT IS NOT NECESSARY TO REGISTER THE DOCUMENT. WE THERE FORE SUBMIT THAT EVEN IF THE CONTENTION OF THE A.O. IS HELD TO BE CORRECT THAN ALSO IT CANNOT BE HELD THAT THE APPELLANT IS NOT TH E OWNER OF THE PROPERTY. WE MOST RESPECTFULLY SUBMIT THAT THE CONTENTION OF THE A. O. THAT SINCE THE AGREEMENT IT NOT A REGI STERED DOCUMENT THE APPELLANT CANNOT BE HELD TO BE OWNER I S NOT AS PER LAW. IT MAY ALSO BE MENTIONED THAT EVEN IF THE AGREEMENT IS NOT REGISTERED IT A VALID AGREEMENT U/S. 17 OF THE REGI STRATION ACT ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 9 AND IS THEREFORE ADMISSIBLE IN EVIDENCE U/S. 49 OF THAT ACT FOR THE COLLATERAL PURPOSE OF PROVING EITHER AN ORAL LE ASE OR FOR EXPLAINING THE NATURE OF THE POSSESSION OF THE PERS ONS IN OCCUPATION. THE SAID CONTENTION IS ALSO SUPPORTED B Y THE PROVISO TO SECTION 49 OF THE REGISTRATION ACT 1908 (SUPRA). THE SC IN CIT V/S PODDAR CEMENT (P) LTD. (1997) 226 ITR 626/92 TAXMAN 541 DEFINED THE WORD OWNER IN THE C ONTEXT OF SECTION 22 THAT OWNER IS A PERSON WHO IS ENTIT LED TO RECEIVE INCOME IN HIS OWN RIGHT. IN THE APPELLANT CASE EVE N THOUGH THE APPELLANT IS NOT THE LEGAL OWNER HE ENJOYS ALL THE RIGHT IN PROPERTIES. HE RECEIVES INCOME IN HIS OWN RIGHT. IT WAS HELD THOUGH UNDER THE COMMON LAW OWNER MEANS A PERSON WH O HAS GOT VALID TITLE LEGALLY8 CONVEYED TO HIM AFTER COMPLYING WITH THE REQUIREMENTS OF LAW SUCH AS THE TRANSFER O F PROPERTY8 ACT THE REGISTRATION ACT ETC. IN THE CO NTEXT OF SECTION 22 OF THE INCOME TAX ACT 1961 HAVING REGA RD TO THE GROUND REALITIES AND FURTHER HAVING REGARD TO THE O BJECT OF THE INCOME TAX ACT NAMELY TO TAX THE INCOME OWNER IS A PERSON WHO IS ENTITLED TO RECEIVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT. THE REQUIREMENT OF REGISTRATION OF THE SALE DEED IN THE CONTEXT OF SECTION 22 IS NOT WARRANTED. TO SUPPORT OUR CONTENTION WE WOULD RELY ON THE FOLL OWING DECISIONS: IT WAS HELD BY FULL BENCH OF THE ALLAHABAD HIGH COU RT IN INDAR SEN V/S. NAUBAT SINGH (1885) ILR 7 ALL ABSOLUTE OWNERSHIP IS AN AGGREGATE OF COMPONENT RIGHTS SUCH AS THE RIGHT OF POSSESSION THE RIGHT O F ENJOYING THE USUFRUCT OF LAND AND SO ON. MRS. M. P. FNANAMBAI V/S. CIT 136 ITR 103 (1982) MADRAS. DY. COMMISSIONER V/S. PROMINENT HOTELS LTD. 73 ITD 51 (DELHI). IT WAS HELD BY THE DELHI TRIBUNAL THAT WHERE AS PER SON IS ENTITLED TO RECEIVE INCOME IN HIS OWN RIGHT HE IS TREATED AS OWNER OF THAT ASSET FOR THE PURPOSE OF SECTION 22 . IN THE APPELLANT CASE THE APPELLANT IS THE ONLY PERSON EN TITLED TO RECEIVE INCOME FROM THE LEASE IN HIS OWN RIGHT. NON E OTHER THAN APPELLANT CAN ENJOY THE BENEFIT OF THE RENT RE CEIVED FROM ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 10 THE LETTING OUT OF THE PROPERTIES AT ACME PLAZA AN DHERI MUMBAI. EVEN THE TENANCY AGREEMENT BETWEEN MRS. DAX ABEN P. SHAH WHO IS THE LEGAL OWNER OF THE PROPERTY AND THE APPELLANT PROVIDE THE APPELLANT RIGHT TO SUB-LEASE THE PROPERTIES WITHOUT TRANSFERRING ANY BENEFIT RECEIVE D FROM THE SUB-LEASE. CONSIDERING ALL ABOVE FACTS WE REQUEST YOUR KIND OF FICE THAT THE RENT INCOME FROM ACME PLAZA MUMBAI SHOULD BE A LLOWED AS INCOME FROM HOUSE PROPERTY RATHER THAN INCOME FROM OTHER SOURCES CONSIDERED BY THE A.O. 9. THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS O F THE ASSESSEE AND MATERIAL ON RECORD AND CONSIDERING THE AGREEMEN T OF TENANCY DATED 16-03-2000 REJECTED THE CLAIM OF THE ASSESSEE AND U PHELD THE ORDER OF THE AO IN TREATING THE INCOME AS INCOME FROM OTHER SOURCES. THE FINDINGS OF THE LEARNED CIT(A) IN PARA 3.6 TO 3.11 ARE REPRO DUCED AS UNDER: 3.6 THE SUBMISSION OF THE APPELLANT IS DULY CONSIDERED. AS CAN BE SEEN FROM THE ABOVE THAT IT I S THE CLAIM OF THE APPELLANT THAT IT IS COVERED BY THE PROVISIO NS OF SECTION 269UA (F) (I) OF THE I. T. ACT ACCORDING TO WHICH TRANSFER (I) IN RELATION TO ANY IMMOVABLE PROPERTY REFERRED TO IN SUB-CLAUSE (I) OF CLAUSE (D) MEANS TRANSFER OF SUCH PROPERTY BY WAY OF SALE OR EXCHANGE OR LEASE FOR A TERM OF NOT LESS THAN TWELVE YEARS AND INCLUDES ALLOWING THE POSSESSION OF SUCH PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT 1882 (4 OF 1882). EXPLANATION- FOR THE PURPOSES OF THIS SUB-CLAUSE A LEASE WHICH PROVIDES FOR THE EXTENSION OF THE TERM THEREOF BY A FURTHER TERM OR TERMS SHALL BE DEEMED TO BE A LEASE FOR A TERM OF NOT LES THAN TWELVE YEARS IF THE AGGREGATE OF THE TERMS FOR WHICH SUCH LEASE IS TO BE GRANTED AND THE FURTHER TERM OR TERMS FOR WHICH SUCH LEASE IS TO BE GRANTED AND THE FURTHER TERM OR TERMS FOR WHICH IT ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 11 CAN BE SO EXTENDED IS NOT LESS THAN TWELVE YEARS. 3.7 IN THE LIGHT OF THE ABOVE THE COPY OF AGREEME NT PLACED ON RECORD HAS BEEN EXAMINED BY ME AND NOTICE D THAT IT IS AN AGREEMENT OF TENANCY ENTERED INTO ON 16/3/ 2000 BETWEEN THE LEGAL OWNER AND THE APPELLANT FOR A PAR TICULAR COMMERCIAL UNIT IN THE ACME PLAZA ANDHERI MUMBAI. THE TERMS AND CONDITIONS OF THE AGREEMENT READS AS UND ER: 1. THAT THE SECOND PARTY SHALL PAY AN AMOUNT OF RS.17 500/-(RUPEES SEVENTEEN THOUSAND FIVE HUNDRED ONLY) PER MONTH TOWARDS RENT FOR THE SAID PREMISES ON OR BEFORE THE 10 TH DAY OF EACH SUCCEEDING CALENDAR MONTH WITHOUT ANY DEDUCTION WHATSOEVER. IN ADDITION TO THE MONTHLY RENT THE SECOND PARTY SHALL BE LIABLE TO PAY ELECTRICITY BILLS AS PER ACT UALS AND TO REIMBURSE TO THE FIRST PARTY THE SOCIETY MAINTENANCE CHARGES IN RESPECT OF THE SAID PREMISES . 2. THE FIRST PARTY DECLARE AND COVENANT AS UNDER: * THAT THEIR TITLE TO THE SAID PREMISES IS FREE CL EAR AND MARKETABLE. * THAT THEY HAVE NOT ALIENATED THEIR INTEREST IN TH E SAID PREMISES TO ANY THIRD PARTY8 ORALLY OR IN WRITING. * THAT THEY ARE FULLY ENTITLED AND AUTHORIZED TO EXECUTE THESE PRESENTS AND THERE ARE NO OTHER CLAIMANT IN RESPECT THEREOF. 3. THE SECOND PARTY DOES HEREBY COVENANT THAT THEY WILL DURING THE TENURE OF THEIR TENANCY PAY UNTO THE FIRST PARTY THE SAID RENT ON THE DAY IN THE MANNER HEREINABOVE PROVIDED. 4. THE SECOND PARTY SHALL BE ENTITLED TO USE THE SA ID PREMISES FOR ANY LEGAL PERMITTED PURPOSE ONLY. ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 12 5. THE SAID PREMISES SHALL NOT BE USED FOR IMMORAL OR ILLEGAL PURPOSES. NOR SHALL ANY MATERIAL PROHIBITED UNDER THE EXPLOSIVE SUBSTANCES AC 1908 BE STORED IN THE SAID PREMISES. 6. THE SECOND PARTY AGREE TO KEEP THE SAID PREMISES IN GOOD CONDITIONS AND REPAIR SUBJECT TO THE NORMAL WEAR AND TEAR AND THEY SHALL NOT DO ANYTHING TO CAUSE ANY DAMAGES TO THE SAID PREMISES NOR CREATE ANY NUISANCE TO THE OTHER TENANTS. 7. THE FIRST PARTY AGREE AND CONFIRM WITH THE SECOND PARTY THAT THEIR TENANCY BEING PERPETUAL CANNOT BE TERMINATED ON ANY GROUND SO LONG AS THE SECOND PARTY CONTINUES TO DELIGENTLY8 PAY THE MONTH RENT IF DEMANDED. 8. THE SECOND PARTY CAN SUBLET AND/OR UNDERLET THE SAID PREMISES. 9. THE SECOND PARTY ARE HEREUNDER EMPOWERED AND AUTHORIZED TO CARRY ON ANY REPAIRS RENOVATION OR INTERIOR TO THE SAID PREMISES. HOWEVER WITHOUT CAUSING ANY DAMAGE TO THE FOUNDATION OF THE BUILDING AND ANY STRUCTURAL DAMAGES. 10. THE SECOND PARTY SHALL BE ENTITLED TO CARRY ON THE BUSINESS BY HAVING ANY UNDERSTANDING WITH ANY OTHER PERSON OR ANY8 AGENT ASSOCIATE PARTNER OR ANY ASSOCIATION OF PERSONS AS THEY MAY DEED FIT. 11. THE SECOND PARTY HAVE ALSO BEEN EMPOWERED TO OBTAIN SEPARATE INDEPENDENT WATER CONNECTION IF REQUIRED AT THEIR OWN COST AND THE FIRST PARTY SHALL NOT OBJECT TO THE SAME FOR ANY REASON WHATSOEVER. 12. THE FIRST PARTY SHALL CARRY OUT ALL MAJOR REPAI RS AT THEIR OWN COST IN THE SAID PREMISES WHICH MAY ARISE DUE TO THE REASONS OTHER THAN NORMAL WEAR AND TEAR. ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 13 13. THE PARTIES HERETO SHALL RENDER ALL C0-OPERATIO N TO ENSURE THE EFFECTIVE IMPLEMENTATION OF THESE PRESENTS. 14. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES THEY WILL SERVE THE NOTICE UPON THE TENANT AT TH FOLLOWING ADDRESS: 106 PRITAM SOCIETY NO.2 BHARUCH GUJARAT. 3.8 ON PERUSAL OF THE ABOVE AGREEMENT OF TENANCY DTD. 16/3/2000 IT IS OBSERVED THAT - I. IN CLAUSE 5 OF THE AGREEMENT THE OWNER HAS LAID DOWN THE CONDITION THAT THE APPELLANT CANNOT CARRY ON ANY ILLEGAL ACTIVITIES IN THE SAID PREMISES. THIS SHOWS THAT THE LANDLORD CONTINUES TO DICTATE THE MANNER IN WHICH THE PROPERTY SHOULD BE USED. IF THE LANDLORD HAD RELINQUISHED HIS RIGHT IN THE PROPERTY AND WAS NO LONGER LEGALLY LIABLE IN ANY MANNER WITH REGARD TO THE PROPERTY INSERTION OF SUCH PRECAUTIONARY CLAUSE WOULD NOT HAVE BEEN CALLED FOR. II. IN CLAUSE 6 OF THE AGREEMENT THE APPELLANT HAD AGREED TO KEEP THE SAID PREMISES IN GOOD CONDITION AND REPAIR SUBJECT TO THE NORMAL WEAR AND TEAR AND HE SHALL NOT DO ANYTHING TO CAUSE ANY DAMAGES TO THE SAID PREMISES NOR CREATE ANY NUISANCE TO THE OTHER TENANTS. III. IN CLAUSE 7 OF THE AGREEMENT THE OWNER HAS L AID DOWN THE CONDITION THAT THE TENANCY WILL NOT BE REVOKED/TERMINATED IF THE APPELLANT CONTINUES TO PAY THE MONTHLY RENT. THUS IT IS EVIDENT THAT THE TENANCY IS CONDITIONAL AND REVOCABLE EVEN THOUGH THE PERIOD OF TENANCY IS SPECIFIED AS PERPETUAL IN THE AGREEMENT. 3.9 THUS IT IS EVIDENT THAT THE TENANCY IS CONDITI ONAL AND REVOCABLE AT ANY TIME IN THE HAPPENING OF NON-PAYM ENT OF RENT EVEN THOUGH THE PERIOD OF TENANCY IS SPECIFIED AS PERPETUAL IN THE AGREEMENT ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 14 3.10 IT IS FOR REASON THAT CONTRARY TO THE APPELLAN TS CLAIM THAT HE IS THE OWNER OF THE IMPUGNED PROPERTY IN T ERMS OF THE PROVISIONS OF SECTION 269UA (F) IS NOT TENABLE. A S PER THE SEC. 269 US (F) THE LEASE SHOULD EXCEED 12 YEARS. HOWEV ER IN THE CASE OF THE APPELLANT THE TENANCY CAN BE TERMINATE D AT ANY TIME BY THE LANDLORD IF ANY OF THE SPECIFIED CONDIT IONS OF THE AGREEMENT IS NOT FULFILLED OR CONTRAVENED. ON THESE FACTS AND CIRCUMSTANCES THE APPELLANT DOES NOT QUALIFY AS A DEEMED OWNER OF THE PROPERTY BEING ONLY A TENANT T HEREOF . HENCE THE PROVISIONS OF SEC. 56 ARE APPLICABLE TO HIS CASE AN D INCOME FROM SUBLETTING IS LIABLE TO BE TAXED AS INCOME FRO M OTHER SOURCES. 3.11 IN VIEW OF THE ABOVE I DO NOT FIND ANY SUBSTA NCE IN THE SUBMISSION OF THE APPELLANT. THE APPELLANT IS NOT F ULFILLING THE CONDITIONS LAID DOWN IN SECTION 269UA (F) OF THE AC T HENCE CANNOT BE CONSIDERED AS DEEMED OWNER OF THE PROPERT Y HENCE CANNOT BE TAXED AS INCOME FROM HOUSE PROPERTY. IN V IEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE I UPHELD THE STAND OF THE A.O. AND CONFIRM THAT THE A.O. IS RIGHT IN T REATING THE SAME AS INCOME FROM OTHER SOURCES AND HAS RIGHTLY REJECTED THE CLAIM OF 30% DEDUCTION. 10. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FILED COPY OF THE AGREEMN4T OF TENANCY DATED 16-03-2000 AND SUBMITTED THAT THROUGH THIS AGREEMENT THE PERIOD OF PROPERTY IN QUESTION FOR TENANCY WAS PERPETUAL THOUGH THE TENANCY WAS MONTH BY MONTH BASIS AND THE AUTHORITIE S BELOW HAVE FAILED TO CONSIDER THE CASE OF THE ASSESSEE AS PER THE DEE MED OWNERSHIP OF THE PROPERTY PRESCRIBED U/S 27 (IIIB) OF THE IT ACT. HE HAS SUBMITTED THAT THERE WAS NO REGISTRATION REQUIRED OF THIS AGREEMEN T OF TENANCY. HE HAS ALSO REFERRED TO SECTION 269 UA (F) (I) OF THE IT A CT AS IS REFERRED TO IN SECTION 27 (IIIB) OF THE IT ACT IN SUPPORT OF THE C ONTENTION AND SUBMITTED THAT IN THE CASE OF THE ASSESSEE TENANCY WAS PERPET UAL THEREFORE IT WAS NOT LESS THAN 12 YEARS AND AS SUCH THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE. H E HAS ALSO FILED COPY OF THE AGREEMENT BETWEEN THE ASSESSEE BEING THE LESSOR WITH XEROX MODI ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 15 CORP LTD. WHEREBY THE PROPERTY IN QUESTION WAS LET OUT TO TH4E SAID TENANT. HE HAS SUBMITTED THAT THE TENANCY WAS RENEW ED TIME TO TIME. HE HAS SUBMITTED THAT THE PROVISIONS OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT WOULD NOT APPLY AS IS MENTIONED IN SEC TION 27(IIIA) OF THE IT ACT. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UP ON THE ORDER OF ITAT MUMBAI BENCH IN THE CASE OF PREMAVATI ESTATES & INV ESTMENTS (P) LTD. VS ACIT (2006) 8 SOT 441 IN WHICH THE ASSESSEE WAS HOLDING THE PROPERTY AS TENANT ON LEASE FOR MORE THAN 9 YEARS A ND WAS CONTINUING POSSESSION. THE TRIBUNAL HELD THAT RENTAL INCOME EA RNED BY THE ASSESSEE ON SUB-LETTING OF THE PROPERTY IS INCOME FROM THE H OUSE PROPERTY BECAUSE THE ASSESSEE WAS DEEMED OWNER OF THE TENANTED PREMI SES U/S 27 (IIIB) OF THE IT ACT. THE LEARNED COUNSEL FOR THE ASSESSEE AL SO RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS PODDAR CEMENT PVT. LTD. AND OTHERS 226 ITR 625 IN WHICH I T WAS HELD AS HENCE THOUGH UNDER THE COMMON LAW OWNER MEANS A PERSON WHO HAS GOT VALID TITLE LEGALLY CONVEYED TO HIM AF TER COMPLYING WITH THE REQUIREMENTS OF LAW SUCH AS THE TRANSFER O F PROPERTY ACT THE REGISTRATION ACT ETC. IN THE CONTEXT OF SECTIO N 22 OF THE INCOME TAX ACT 1961 HAVING REGARD TO THE GROUND REALITIE S AND FURTHER HAVING REGARD TO THE OBJECT OF THE INCOME TAX ACT NAMELY TO TAX THE INCOME OWNER IS A PERSON WHO IS ENTITLED TO RECE IVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT. THE REQUIREMENT OF R EGISTRATION OF THE SALE DEED IN THE CONTEXT OF SECTION 22 IS NOT W ARRANTED. THE LEARNED COUNSEL FOR THE ASSESSEE THEREFORE SUBMIT TED THAT THE CONDITIONS OF SECTION 105 OF THE TRANSFER OF PROPER TY ACT HAVE BEEN COMPLIED WITH BY THE ASSESSEE AND THE ORDERS OF THE AUTHORITIES BELOW MAY BE SET ASIDE AND INCOME MAY BE ASSESSED AS INCO ME FROM HOUSE PROPERTY. 11. ON THE OTHER HAND THE LEARNED DR RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE W AS NOT OWNER OF THE ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 16 PROPERTY AND HAS NOT FULFILLED THE CONDITIONS OF AB OVE SECTIONS THEREFORE THE ASSESSEE CANNOT BE A DEEMED OWNER OF THE PROPER TY IN QUESTION THEREFORE INCOME WAS RIGHTLY TREATED AS INCOME FRO M OTHER SOURCES. THE LEARNED DR REFERRED TO SOME OF THE CLAUSES OF THE A GREEMENT OF TENANCY DATED 16-03-2000 AND POINTED OUT THAT RENT WAS PAYA BLE MONTH BY MONTH AND TENANCY WAS NOT REGISTERED AS PER LAW. TH E TENANCY CANNOT BE USED FOR ILLEGAL PURPOSE AND THE ASSESSEE COULD NOT HAVE DAMAGE THE DEMISE PROPERTY. THE TENANCY WAS NOT PERPETUAL IN N ATURE BECAUSE IT COULD BE TERMINATED ON ACCOUNT OF NON PAYMENT OF MO NTHLY RENT. THE LEARNED DR FURTHER SUBMITTED THAT IN THE EVENT OF D ISPUTE BETWEEN THE PARTIES NOTICES COULD BE GIVEN. THE LEARNED DR THER EFORE SUBMITTED THAT THE TENANCY OF THE ASSESSEE IN THIS CASE WAS BY WAY OF LEASE FROM MONTH TO MONTH OR FOR A PERIOD NOT EXCEEDING ONE YEAR. TH EREFORE THE ASSESSEE IS NOT DEEMED OWNER OF THE PROPERTY IN QUESTION. TH E LEARNED DR SUBMITTED THAT CONDITIONS OF SECTION 269 UA (F) (I) OF THE IT ACT ARE NOT SATISFIED IN THIS CASE AND THAT IN THE CASE OF PREM AVATI ESTATES & INVESTMENTS (P) LTD. (SUPRA) THE TRIBUNAL CAME TO THE FINDING ON EXAMINATION OF THE TENANCY AGREEMENT THAT THE ASSES SEE WAS A PERMANENT TENANT AND IT COULD NOT BE SAID THAT THE ASSESSEE HAD TAKEN THE LEASE FROM MONTH TO MONTH OR FOR A PERIOD NOT E XCEEDING ONE YEAR. THE LEARNED DR THEREFORE SUBMITTED THAT THE AUTHO RITIES BELOW RIGHTLY TAKEN THE INCOME AS INCOME FROM OTHER SOURCES AND D ENIED FURTHER DEDUCTION TO THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE IN THE REJOINDER FURTHER SUBMITTED THAT THE TRIBUNAL IN TH E CASE OF SMT. LILABEN S. SHAH AND ANOTHER VS ITO IN ITA NOS. 2387 2388 A ND 2389/AHD/2009 ORDER DATED 18-12-2009 DECIDED THE IS SUE AGAINST THE ASSESSEES BECAUSE IN THESE CASES INSTEAD OF LEASE A GREEMENT THE LICENSE DEED WAS EXECUTED. COPY OF THE ORDER IS FILED ON RE CORD. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL AVAILABLE ON RECORD. SECTION 22 OF THE INCOME TAX A CT PROVIDES AS UNDER: ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 17 THE ANNUAL VALUE OF PROPERTY CONSISTING OF ANY BUILDINGS OR LANDS APPURTENANT THERETO OF WHICH THE ASSESSEE IS THE OWNER OTHER THAN SUCH PORTIONS OF SUCH PROPERTY AS HE MAY OCCUPY FOR THE PURPOSES OF ANY BUSINESS OR PROFESSION CARRIED ON BY HIM THE PROFITS OF WHICH ARE CHARGEABLE TO INCOME-TAX SHAL L BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. SECTION 27 (IIIB) OF THE INCOME TAX ACT PROVIDES AS UNDER: (IIIB) A PERSON WHO ACQUIRES ANY RIGHTS (EXCLUDING ANY RIGHTS BY WAY OF A LEASE FROM MONTH TO MONTH OR FOR A PERIOD NOT EXCEEDING ONE YEAR) IN OR WITH RES PECT TO ANY BUILDING OR PART THEREOF BY VIRTUE OF ANY S UCH TRANSACTION AS IS REFERRED TO IN CLAUSE (F) OF SECT ION 269UA SHALL BE DEEMED TO BE THE OWNER OF THAT BUILDING OR PART THEREOF; SECTION 269 UA (F) (I) OF THE INCOME TAX PROVIDES A S UNDER: (F) TRANSFER (I) IN RELATION TO ANY IMMOVABLE PROPERTY REFERR ED TO IN SUB-CLAUSE (I) OF CLAUSE (D) MEANS TRANSFER OF SUCH PROPERTY BY WAY OF SALE OR EXCHANGE OR LEASE F OR A TERM OF NOT LESS THAN TWELVE YEARS AND INCLUDES ALLOWING THE POSSESSION OF SUCH PROPERTY TO BE TAKE N OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF TH E NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT 1882 (4 OF 1882). EXPLANATION.FOR THE PURPOSES OF THIS SUB-CLAUSE A LEASE WHICH PROVIDES FOR THE EXTENSION OF THE TERM THEREOF BY A FURTHER TERM OR TERMS SHALL BE DEEMED TO BE A LEASE FOR A TERM OF NOT LESS THAN TWELVE YEARS IF THE AGGREGATE OF THE TERM FOR WHICH SUCH LEASE IS T O BE GRANTED AND THE FURTHER TERM OR TERMS FOR WHICH IT CAN BE SO EXTENDED IS NOT LESS THAN TWELVE YEARS; ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 18 13. CONSIDERING THE ABOVE PROVISIONS IT IS CLEAR T HAT ANNUAL VALUE OF THE PROPERTY CONSISTING OF ANY BUILDING OR LANDS AP ARTMENTS THERETO OF WHICH THE ASSESSEE IS THE OWNER OTHER THAN SUCH POR TION OF SUCH PROPERTY AS HE MAY OCCUPY FOR THE PURPOSE OF ANY BUSINESS OF PROFESSION CARRIED ON BY HIM BY PROFIT OF WHICH ARE CHARGEABLE TO INC OME TAX SHALL BE CHARGEABLE TO INCOME TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. SECTION 27 (IIIB) OF THE INCOME TAX ACT PROVIDES DE EMED OWNERSHIP OF THE BUILDING WHEN SUCH PERSON ACQUIRES ANY RIGHT EXCLUD ING ANY RIGHT BY WAY OF LEASE FROM MONTH TO MONTH OR FOR A PERIOD NOT EX CEEDING ONE YEAR. THEREFORE WITH RESPECT TO ANY BUILDING OR PART THE REOF BY VIRTUE OF ANY SUCH TRANSACTIONS AS IS REFERRED TO IN CLAUSE (F) O F SECTION 269 UA SHALL BE DEEMED TO BE OWNER OF THAT BUILDING OR PART THEREOF . SECTION 269 UA (F) (I) OF THE INCOME TAX PROVIDES DEFINITION OF TRANSFER IN RELATION TO ANY IMMOVABLE PROPERTY MEANS TRANSFER OF SUCH PROPERTY BY WAY OF SALE OR EXCHANGE OR LEASE FOR A TERM OF NOT LESS THAN 12 YE ARS AND INCLUDES PART PERFORMANCE U/S 53 OF THE TRANSFER OF PROPERTY ACT. IN SECTION 27 AND 269 UA OF THE IT ACT AS MENTIONED ABOVE THE WORD LEASE OF PROPERTY IS USED FOR THE PURPOSE OF CONFERRING RIG HT UPON THE PERSON WHO QUALIFY TO BECOME DEEMED OWNER OF THE PROPERTY AS P ER SECTION 22 OF THE INCOME TAX ACT. THEREFORE IT IS NECESSARY AS PER T HE ABOVE PROVISIONS THAT BEFORE THE ASSESSEE COULD BE CONSIDERED AS DEE MED OWNER OF THE PROPERTY IF THE PROPERTY IN QUESTION IS TAKEN ON LE ASE FOR A TERM NOT LESS THAN 12 YEARS BECAUSE IT EXCLUDES THE LEASE FROM M ONTH TO MONTH OR FOR A PERIOD NOT EXCEEDING ONE YEAR. THE LEARNED COUNS EL FOR THE ASSESSEE ADMITTED THAT IT IS NOT A CASE OF SECTION 53A OF TH E TRANSFER OF PROPERTY ACT. THEREFORE THE SAME CANNOT BE TAKEN INTO CONSI DERATION WHILE DECIDING THE ABOVE ISSUE. SECTION 105 106 AND 107 OF THE TRANSFER OF PROPERTY ACT PROVIDES AS UNDER: 105. LEASE DEFINED . A LEASE OF IMMOVABLE PROPERTY IS A TRANSFER OF A RIGHT TO ENJOY SUCH PROPERTY MADE F OR A CERTAIN TIME EXPRESS OR IMPLIED OR IN PERPETUITY IN CONS IDERATION OF A ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 19 PRICE PAID OR PROMISED OR OF MONEY A SHARE OF CRO PS SERVICE OR ANY OTHER THING OF VALUE TO BE RENDERED PERIODI CALLY OR ON SPECIFIED OCCASIONS TO BE TRANSFEROR BY THE TRANSFE REE WHO ACCEPTS THE TRANSFER ON SUCH TERMS. LESSOR LESSEE PREMIUM AND RENT DEFINED . THE TRANSFEROR IS CALLED THE LESSOR THE TRANSFEREE IS CALLED THE LESSEE THE PRICE IS CALLED THE PREMIU9M AND THE M ONEY SHARE SERVICE OR OTHER THING TO BE SO RENDERED IS CALLED THE RENT. 106. DURATION OF CERTAIN LEASES IN ABSENCE OF WRITTEN CONTRACT OR LOCAL USAGE . IN THE ABSENCE OF A CONTRACT OR LOCAL LAW OR USAGE TO THE CONTRARY A LEASE OF IMMO VABLE PROPERTY FOR AGRICULTURAL OR MANUFACTURING PURPOSES SHALL BE DEEMED TO BE A LEASE FROM YEAR TO YEAR TERMINABLE ON THE PART OF EITHER LESSOR OR LESSEE BY SIX MONTHS NOT ICE EXPIRING WITH THE END OF A YEAR OF TENANCY; AND A LEASE OF I MMOVABLE PROPERTY FOR ANY OTHER PURPOSE SHALL BE DEEMED TO B E A LEASE FROM MONTH TO MONTH TERMINABLE ON THE PART OF EIT HER LESSEE BY FIFTEEN DAYS NOTICE EXPIRING WITH THE END OF A MONTH OF TENANCY. EVERY NOTICE UNDER THIS SECTION MUST BE IN WRITING SIGNED BY OR ON BEHALF OF THE PERSON GIVING IT AND EITHER BE SENT BY POST TO THE PARTY WHO IS INTENDED TO BE BOU ND BY IT OR BE TENDERED OR DELIVERED PERSONALLY TO SUCH PARTY OR TO ONE OF HIS FAMILY OR SERVANTS AT HIS RESIDENCE OR (IF SU CH TENDER OR DELIVERY IS NOT PRACTICABLE) AFFIXED TO A CONSPICUO US PART OF THE PROPERTY. 107. LEASES HOW MADE . A LEASE OF IMMOVABLE PROPERTY FROM YEAR TO YEAR OR FOR ANY TERM EXCEEDING ONE YE AR OR RESERVING A YEARLY8RENT CAN BE MADE ONLY BY A REGI STERED INSTRUMENT. ALL OTHER LEASES OF IMMOVABLE PROPERTY MAY BE MADE EITHER BY A REGISTERED INSTRUMENT OR BY ORAL AGREEMENT ACCOMP ANIED BY DELIVERY OF POSSESSION. WHERE A LEASE OF IMMOVABLE PROPERTY IS MADE BY A RE GISTERED INSTRUMENT SUCH INSTRUMENT OR WHERE THERE ARE MOR E INSTRUMENTS THAN ONE EACH SUCH INSTRUMENT SHALL BE EXECUTED BY BOTH THE LESSOR AND THE LESSEE. ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 20 PROVIDED THAT THE STATE GOVERNMENT MAY FROM TIME T O TIME BY NOTIFICATION IN THE OFFICIAL GAZETTE DIR4ECT THAT LEASES OF IMMOVABLE PROPERTY OTHER THAN LEASES FROM YEAR TO YEAR OR FOR ANY TERM EXCEEDING ONE YEAR OR RESERVING A YEA RLY RENT OR ANY CLASS OF SUCH LEASES MAY BE MADE BY UNREGISTER ED INSTRUMENT OR BY ORAL AGREEMENT WITHOUT DELIVERY OF POSSESSION. 14. CONSIDERING THE ABOVE DISCUSSIONS RELEVANT PRO VISIONS OF LAW MENTIONED ABOVE IN THE LIGHT OF AGREEMENT OF TENAN CY IT IS CLEAR THAT THE TENANCY BETWEEN THE ASSESSEE AND THE LANDLORD/OWNER WAS FOR MONTH TO MONTH AND MONTHLY RENT WAS PAYABLE. FURTHER CLAUSE S IN THE TENANCY AGREEMENT PROVIDE THAT PROPERTY COULD NOT BE USED F OR IMMORAL AND ILLEGAL PURPOSES AND THE ASSESSEE SHALL KEEP THE PR EMISES IN GOOD CONDITION AND SHALL NOT CAUSE ANY DAMAGE TO THE PRO PERTY INCLUDING THE FOUNDATION AND STRUCTURE TO THE BUILDING IN QUESTIO N. THE ASSESSEE COULD ENJOY THE PROPERTY SO LONG AS THE ASSESSEE CONTINUE S TO PAY THE MONTHLY RENT. IN CASE OF ANY DISPUTE NOTICES COULD BE GIVE N BY THE PARTIES. THEREFORE THE ESSENCE OF THE TENANCY AGREEMENT WAS PAYMENT OF RENT MONTH BY MONTH AND THAT THE ASSESSEE COULD MAKE THE SUB-LETTING AS A TENANT ONLY BECAUSE OWNER CANNOT MAKE SUB-LETTING O F THE PROPERTY AND IN CASE OF ANY DISPUTE THE NOTICES COULD BE GIVEN B Y THE PARTIES. THERE IS NO CLAUSE IN THE TENANCY AGREEMENT TO PROVIDE THAT THE TENANCY WAS FOR MORE THAN ONE YEAR. NO RIGHT TO TENANCY IN PERPETUI TY IS GRANTED TO THE ASSESSEE BECAUSE THE TENANCY AGREEMENT WAS SUBJECT TO CERTAIN CONDITIONS TO BE PERFORMED BY THE ASSESSEE. THE RIG HT TITLE AND INTEREST OF OWNER/LANDLORD WOULD NOT EXTINGUISH IN THE TENAN TED PROPERTY THROUGH TENANCY AGREEMENT. THEREFORE THE TENANCY IN QUESTI ON BETWEEN THE ASSESSEE AND THE OWNER OF THE PROPERTY IS MONTH BY MONTH CONDITIONAL AND COULD BE REVOKED AT ANY TIME ON NON-PAYMENT OF RENT. ACCORDING TO SECTION 106 OF THE TRANSFER OF PROPERTY ACT THE LE ASE OF IMMOVABLE PROPERTY FOR ANY OTHER PURPOSES THAN AGRICULTURAL O R MANUFACTURING PURPOSES SHALL BE DEEMED TO BE LEASED FROM MONTH TO MONTH TERMINABLE ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 21 ON THE PART OF EITHER PARTY BY 15 DAYS NOTICE ON EX PIRY WITH THE END OF A MONTH OF TENANCY. ACCORDING TO SECTION 107 OF THE T RANSFER OF PROPERTY ACT THE LEASE OF IMMOVABLE PROPERTY FROM YEAR TO Y EAR OR FOR ANY TERM EXCEEDING ONE YEAR CAN BE MADE ONLY BY REGISTERED I NSTRUMENT. THEREFORE IN CASE OF LEASE WAS EXECUTED FOR EXCEED ING ONE YEAR REGISTRATION OF THE SAME WAS NECESSARY. NON-REGISTR ATION OF THE TENANCY WOULD AFFECT THE IMMOVABLE PROPERTY IN QUESTION AND NO RIGHT TO RECEIVE RENT COULD HAVE BEEN GRANTED TO THE ASSESSEE IN THE EVENT OF NON- REGISTRATION OF THE TENANCY AGREEMENT. CONSIDERING THE SALIENT FEATURES OF THE LEASE AGREEMENT IN THE CASE OF THE ASSESSEE IN THE LIGHT OF THE ABOVE PROVISIONS IT IS VERY CLEAR THAT THE TENANCY IS MO NTH TO MONTH CONDITIONAL AND REVOCABLE AT ANY TIME IN THE EVENT OF BREACH OF THE CONDITIONS OR FOR NON-PAYMENT OF THE RENT EVEN THO UGH IT MAY BE MENTIONED IN THE TENANCY AGREEMENT THAT IT IS PERPE TUAL. THERE IS NO CLAUSE MENTIONED IN THE TENANCY AGREEMENT FOR EXTEN SION OF THE TERM OF THE TENANCY FOR 12 YEARS OR MORE. SINCE TENANCY IS UNREGISTERED AND MONTH TO MONTH BASIS THE PROVISIONS OF SECTION 27 (III B) OF THE IT ACT IN REGARD TO ABOVE PROPOSITION OF LAW WOULD NOT APPLY. SECTION 27 (IIIB) OF THE IT ACT FURTHER PROVIDES THE DEEMED OWNERSHIP WH EN A PERSON ACQUIRES ANY RIGHT ON THE TRANSACTIONS AS IS REFERR ED CLAUSE (F) OF SECTION 269 UA OF THE IT ACT WOULD BE APPLICABLE TO THE PR OPOSED BUYER AS PER SCHEME OF CHAPTER XX- C OF THE IT ACT. IN CHAPTER X X C OF THE IT ACT THE SCHEME IS PROVIDED FOR PURCHASE OF IMMOVABLE PR OPERTY AT THE SPECIFIED AMOUNT BY THE CENTRAL GOVERNMENT IN CERTA IN CASES ON TRANSFER WITH THE PERMISSION OF THE APPROPRIATE AUTHORITY AN D ON CERTAIN CONDITIONS THE PROPERTY COULD VEST UNDER THE CENTRA L GOVERNMENT. SECTION 269 UA IS PART OF CHAPTER XX C OF THE IT A CT DEALING WITH THE TRANSFER OF PROPERTIES BETWEEN SELLER AND THE PURCH ASER. THE OBJECT OF THE NEW CHAPTER XX C OF THE IT ACT AS EXPLAINED BY THE BOARD IN CIRCULAR WAS 37.5 IT IS A KNOWN FACT THAT PROLIFERATION OF BLACK MONEY IS EVIDENT IN THE TRANSFER OF IMMOVABLE PROPERTIES. AS MENTIONED IN ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 22 THE LTFP ONE WAY OF TACKLING THE PROBLEM OF TAX EVA SION IS TO CONFER ON THE GOVERNMENT THE PRE-EMPTIVE RIGHT TO A CQUIRE ANY IMMOVABLE PROPERTY UNDERGOING A TRANSFER FOR CONSID ERATION ABOVE A CERTAIN VALUE. THE ASSUMPTION OF THE POWER BY THE CENTRAL GOVERNMENT TO PURCHASE IMMOVABLE PROPERTIES IN CERT AIN CASES OF TRANSFER THUS HAS THE OBJECT OF INCLUDING TRANSFERO RS AND THE TRANSFEREES TO DECLARE THE FULL AMOUNT OF CONSIDERA TION IN THE AGREEMENT FOR TRANSFER. THE FACTS OF THE CASE DO NOT PRESCRIBE ANY TRANSFER BETWEEN SELLER AND THE PURCHASER BECAUSE T HE FACTS OF THE CASE ARE CONCERNING THE LEASE PROPERTY IN THE MATTER. IN SECTION 269 UA (F) OF THE IT ACT TRANSFER IS DEFINED IN RELATION TO SUB-C LAUSE (I) OF CLAUSE (D) OF SECTION 269 UA REGARDING IMMOVABLE PROPERTY IN WHIC H THE SALE OR EXCHANGE OR LEASE FOR A TERM NOT LESS THAN 12 YEARS HAVE BEEN PRESCRIBED. THE PURPOSE OF THE ABOVE PROVISIONS WAS TO INCLUDE THE TRANSFER OF PROPERTY WITHOUT ADEQUATE CONSIDERATION BY INCLUDIN G SALE EXCHANGE OR A LEASE FOR HIGHER PERIOD SO THAT THE PROVISIONS OF C HAPTER XX-C HAVE NOT BEEN VIOLATED BY THE PARTIES THROUGH COLORABLE DEVI CES. THE PROVISIONS OF CHAPTER XX C OF THE IT ACT WOULD NOT BE APPLICABLE ON OR AFTER 01-07- 2002 AS PER SECTION 269 UP OF THE ACT. THEREFORE N ONE OF THE CONDITIONS OF SECTION 27 (III B) HAS BEEN SATISFIED IN THIS CA SE. 15. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPO N THE ORDER OF THE TRIBUNAL IN THE CASE OF PREMAVATI ESTATES & INVESTM ENTS (PVT.) LTD. (SUPRA) IN WHICH THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS TAKEN A PREMISE ON LEASE FROM BASANTKUMAR SOMANI MEMORIAL T RUST ON LEASE RENT PER MONTH. IN THIS PREMISES THE TRIBUNAL CONF IRMED THE ORDERS OF THE AUTHORITIES BELOW THAT THE ASSESSEE WAS DEEMED OWNER OF THE BUILDING IN QUESTION CONSIDERING THE LEASE DEED IN QUESTION AND CAME TO THE FINDING THAT THE ASSESSEE IS A PERMANENT TENANT. TH EREFORE THE ASSESSEE WAS HELD TO BE DEEMED OWNER OF THE PROPERTY IN QUES TION. THE FACTS OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE AS NOTED A BOVE BECAUSE NONE OF ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 23 THE CONDITIONS OF SECTION 27 (IIIB) OF THE IT ACT H AVE BEEN COMPLIED WITH IN THE CASE OF THE ASSESSEE. THE LEARNED COUNSEL FOR T HE ASSESSEE FURTHER RELIED UPON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF PODDAR CEMENT PVT. LTD. AND OTHERS (SUPRA) IN WHICH BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE OWNED FOUR FLATS IN BOMBAY. TWO WERE DIRECTLY PURCHASED AND OTHER TWO WERE PURCHASED THR OUGH SISTER CONCERN. POSSESSION OF THE FLATS WAS TAKEN AFTER PA YMENT OF CONSIDERATION IN FULL. THE RENTAL INCOME FROM THESE FLATS WAS INC LUDED IN THE RETURN OF INCOME. THE ASSESSEE HOWEVER CLAIMED THAT RENTAL I NCOME FROM THE FLATS WAS ASSESSABLE AS INCOME FROM OTHER SOURCES U/S 56 OF THE IT ACT AS THE ASSESSEE COMPANY WAS NOT LEGAL OWNER OF THE FLATS I N QUESTION BECAUSE THE SALE DEED WAS NOT EXECUTED IN THE NAME OF THE A SSESSEE. HOWEVER THE AO ASSESSED THE RENTAL INCOME FROM THE FLATS AS INC OME FROM HOUSE PROPERTY. IN THE BACKGROUND OF THE ABOVE FACTS IT WAS HELD THAT REQUIREMENT OF REGISTRATION OF SALE DEED IN THE CONTEXT OF SECTION 22 OF THE IT ACT IS NOT WARRANTED. IN OUR RESPECTFUL OPIN ION THE ABOVE DECISION WOULD NOT HELP THE ASSESSEE BECAUSE IN PRESENT CASE THERE IS NO SALE AND PURCHASE OF THE PROPERTY THROUGH FULL CONSIDERATION . THE FACTS OF THE CASE ARE DISTINGUISHABLE BECAUSE THE ASSESSEE CLAIMED IN THE PRESENT APPEAL THAT IT ACQUIRED RIGHT THROUGH THE TENANCY AGREEMEN T WHICH WAS EXECUTED FOR MONTH TO MONTH BASIS. WE MAY POINT OUT THAT POS SESSION OF PROPERTY TAKEN ON PAYMENT OF CONSIDERATION WOULD BE GOVERNED BY SECTION 53A OF THE TRANSFER OF PROPERTY ACT (PART PERFORMANCE) BUT THE LEARNED COUNSEL FOR THE ASSESSEE ADMITTED THAT THE CASE OF THE ASSE SSEE IS NOT FALLING U/S 53A OF THE TRANSFER OF PROPERTY ACT AS IS REFERRED IN SECTION 269 UA (F) (I) OF THE IT ACT. IT MAY ALSO BE NOTED THAT THE AO REL IED UPON SEVERAL DECISIONS OF THE HONBLE SUPREME COURT DIRECTLY ON THE POINT IN ISSUE IN WHICH IT WAS HELD THAT IN THE ABSENCE OF REGISTERED LEASE DEED THE PERSON SO PUT IN POSSESSION WOULD BE A TENANT FROM MONTH T O MONTH BASIS. THE DECISIONS RELIED UPON BY THE AO AND THE LEARNED CIT (A) IN THE IMPUGNED ORDERS HAVE NOT BEEN DISPUTED BY THE LEARNED COUNSE L FORTH ASSESSEE ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 24 DURING THE COURSE OF ARGUMENT. IT THEREFORE APPE ARS; ASSESSEE HAS MADE A WRONG CLAIM OF INCOME FROM HOUSE PROPERTY. 16. CONSIDERING THE FACTS AND CIRCUMSTANCES NOTED A BOVE WE DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW IN REJECTING THE CLAIM OF THE ASSESSEE FOR DEEMED OWNERSHIP OF THE B UILDING IN QUESTION AS PER SECTION 22 READ WITH SECTION 27 (IIIB) AND 269 UA (F) (I) OF THE IT ACT. WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORD ERS OF THE AUTHORITIES BELOW IN DENYING THE CLAIM OF THE ASSESSEE TO BECOM E DEEMED OWNERSHIP OF THE PROPERTY SO AS TO QUALIFY FOR DEDUCTION U/S 24 OF THE IT ACT. THE INCOME IS THEREFORE LIABLE TO BE TREATED AS INCO ME FROM OTHER SOURCES AND THE DEDUCTION WAS ALSO RIGHTLY DISALLOWED BY TH E AUTHORITIES BELOW. 17. IN THE RESULT WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE AND THE SAME IS ACCORDINGLY DISMISSED. 18. IN THE REMAINING APPEALS OF THE OTHER ASSESSEES IN ITA NOS. 1272 1273 1274 1275 1276 AND 1278/AHD/2006 THE LEARN ED REPRESENTATIVES OF THE PARTIES SUBMITTED THAT THE I SSUE IS COMMON AND ACCORDING TO THEM THE ORDER IN THE CASE OF SHRI PUN ITKUMAR SHANTILAL SHAH IN ITA NO.1277/AHD/2006 MAY BE FOLLOWED. BY FO LLOWING THE SAME ORDER WE DISMISS THE REMAINING APPEALS OF THE OTHE R ASSESSEES ALSO. 19. AS A RESULT ALL THE APPEALS OF THE ASSESSEES A RE DISMISSED. ORDER PRONOUNCED ON 20-08-2010. SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 20-08-2010 LAKSHMIKANT/- ITA NO.1272 TO 1278/AHD/2006 SHRI TUSHAR PRAVINCHANDRA SHAH AND 6 ORS VS DCIT C ENTRAL CC-1 BARODA 25 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD