Income Tax Appeal No. 58 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. --- Income Tax Appeal No. 58 of 2011 Date of decision: 18.7.2011 Gurmit Singh Dhaliwal --- Appellant Versus The I.T.O. Chandigarh --- Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- Present: Mr. Sunish Bindlish, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. This appeal under Section 260A of the Income-Tax Act, 1961 (for short “the Act”) has been filed by the assessee against the order dated 15.7.2010, passed by the Income Tax Appellate Tribunal, Chandigarh Bench, ‘SMC’, Chandigarh (in short “the Tribunal”) in ITA No. 377/CHANDI/2010, relating to the assessment year 2006-07. 2. The following substantial questions of law have been claimed for determination of this Court: Income Tax Appeal No. 58 of 2011 2 “ (i) Whether on the facts and circumstances of the case the order of the Income Tax Appellate Tribunal confirming the addition was perverse? (ii) Whether the order of the Income Tax Appellate Tribunal confirming the addition was justified in a case where similar situation was accepted and remained unchallenged for various previous years and there was no change in circumstances? (iii) Whether the impugned order of the Income Tax Appellate Tribunal can be sustained despite the fact that it has been passed in total ignorance of the evidence available on record the genuineness of which has not been disputed by the department? (iv) Whether determination of the share of a third person in the property would be relevant in considering the assessment framed on the assessee? (v) Whether the order of the Tribunal was not justified in view of the judgments of the various courts of our country? 3. The facts, in brief, necessary for adjudication as narrated in the appeal, are that the assessee is a non-Resident Indian. He filed return for the assessment year in question on 25.7.2006 declaring income at Rs. 1,76,306/- which included rental income from assessee’s 1/3rd share in a flat. Assessment under Section 143(3) of the Act was framed on 12.8.2008 whereby an addition of Rs. 85363/- was made by taking the share of the assessee in the rental income as half instead of 1/3rd. Income Tax Appeal No. 58 of 2011 3 4. The Commissioner of Income-tax (Appeals) {in short “the CIT(A)”}, dismissed the assessee’s appeal vide order dated 22.2.2010. 5. The Tribunal vide the order under appeal, also dismissed the appeal preferred by the assessee and this is how the assessee is in appeal before this Court. 6. We have heard learned counsel for the appellant and have perused the record. 7. The primary issue that arises for determination in this appeal is, whether the assessee was to be treated as Hindu Undivided Family (for short “HUF”) or has been rightly assessed in his individual capacity? 8. Learned counsel for the assessee referred to Annexure A-4, a copy of a Memorandum of Family Arrangement executed amongst the family members including the assessee, to draw support to show that the rental income from the flat was to be assessed in the status of HUF as by virtue of the memorandum of family arrangement the property had fallen to the share of the HUF. 9. We are unable to accept the submission. The learned counsel for the assessee was unable to substantiate that the property-flat from which rental was received which was claimed to be belonging to HUF, was inherited by the assessee from his father or in the absence of the same, how by virtue of family arrangement (Annexure A-4) the same could be treated to be an HUF property. The Tribunal on appreciation of the material produced on record, while upholding the order of the CIT(A) and the assessing officer had specifically recorded a finding that the assessee was receiving rent in Income Tax Appeal No. 58 of 2011 4 his individual capacity. The findings recorded by the Tribunal in that behalf are as under: “5. The assessee’s counsel had also filed a Paper Book on record consisting of the following material: 1. Copy of family arrangement 2. Copy of computation charts and acknowledgements of Income since 2000 till date. 6. By placing the above material, the learned counsel for assessee made similar submission as made before the first appellate authority. He was pleading that the consistency should be maintained. To a query from the Bench, the learned counsel was fair enough to submit for all the earlier assessment years and subsequent assessment years the assessments were framed u/s 143(1) of the Act. However, he was harping on the principle of consistency. 7. Per Contra, the learned departmental representative heavily supported the orders of the lower authority. It was his plea that the decision was based on lease deeds, TDS certificates and property tax filed before the Assessing Officer. He also submitted that there is no question of maintaining consistency since the assessments made for all the other assessment years except this assessment year u/s 143(1) on the basis of assessee’s return, without making any enquiry. Income Tax Appeal No. 58 of 2011 5 8. I have heard the rival submissions and carefully considered the facts and material on record including the contents of the Paper Book filed by the assessee. There is no dispute about the fact that according to the lease deed, the assessee and his wife only were the lessors. Also the TDS certificates and property tax receipts do not contain the name of HUF. In these facts and circumstances, I do not find any infirmity in the order of the revenue authorities and as such, I uphold the order of the Commissioner of Income- tax (Appeals) and dismiss the assessee’s appeal.” 10. No illegality of perversity could be pointed out by the learned counsel for the assessee in the findings of the Tribunal which may persuade this Court to interfere there with. Hence, no substantial question of law arises in this appeal for the consideration of this Court. There is, thus, no merit in the appeal and the same is consequently dismissed. (AJAY KUMAR MITTAL) JUDGE (ADARSH KUMAR GOEL) July 18, 2011 ACTING CHIEF JUSTICE *rkmalik*