I.TAS. NOS. 12 TO 16/LB OF 1994, DECIDED ON 14TH SEPTEMBER, 1994. VS I.TAS. NOS. 12 TO 16/LB OF 1994, DECIDED ON 14TH SEPTEMBER, 1994.
1995 P T D (Trib.) 1103
[Income-tax Appellate Tribunal Pakistan]
Before Nasim Sikandar, Judicial Member
I.TAs. Nos. 12 to 16/LB of 1994, decided on /01/.
th
September, 1994. Income Tax Ordinance (XXXI of 1979)---
----S.19---Income- from house property---Heirs of deceased owner of the property---Taxability---If the legal heirs of deceased are to be taxed on account of income from property left by him then their shares in income from that property cannot exceed the proportion by which the property devolved upon them irrespective of the actual receipt by one who may or may not be one of the heirs---Assessing Officer on the one hand disbelieved the claim of the widow of the deceased owner that whole rentals were received by her yet at the same time he believed the alleged statement of one of members of A.O.P. (son) that the rents were received by him---Appellate Authority also believed the claim of widow---Neither Appellate Authority nor the Assessing Officer approached the matter in accordance with Muslim Law of Inheritance---Both Assessing Officer and the Appellate Authority, held, were prone to fault.
Mrs. Shahnaz Rafique, D.R. for Appellant.
Nemo for Respondent.
Date of hearing: 7th September, 1994.
ORDER
These departmental appeals for the assessment years 1987-88 to 1991-92 impugn a consolidated order recorded by CIT (A) on 7-9-1993. Common grounds of grievance in all the years being cancellation of assessments.
2. Learned D.R. for the Revenue is present and has been heard. The respondent has failed to appear in spite of service of notice. Therefore, these appeals are taken up for disposal by resort to Rule 20(2) of the ITAT Rules, 1981.
3. The assessee-respondent in this case is an AOP of two brothers deriving income from operating a saw-machine in whose respect original assessments were completed at various sums as declared under section 59(1) of the Ordinance. Subsequently it transpired that it was also enjoying rental income out of two shops which was not declared. Accordingly. its case was reopened under section 65 of the Ordinance. In reply to the notices it was contended that the aforesaid two shops originally owned by their father devolved on the legal heirs at the time of his death. According to the assessment order the father of the assessee Mr. Karam Din was survived by one widow and three sons. Before the assessing officer it was further contended that the rent of the aforesaid shops was being received by their mother as she had no other source of income. The assessing officer on the other hand relied heavily upon the alleged statement recorded by the Circle Inspector on 12-9-1992 wherein statedly one of the brothers admitted to have been in receipt of the rent of Rs.300 per month. After making another addition on account of receipt of income from sale of "Burn" the assessing officer finally framed an assessment at net income of Rs.55,073 treating the assessee as well as his brother Muhammad Ashraf as an AOP. Learned first appellate authority allowed the aforesaid relief by relying upon an affidavit of the widow mother of the assessee whereby she had claimed receipt of total rent of the shops-in question.
4. Learned D.R. in terms of the grounds of appeal states that the appellate authority was not justified in allowing the relief inasmuch the assessing officer was justified in treating the two brothers doing business together as an A.O.P. and assessing notional income in their hands even if they had not actually received the rent.
5. After hearing the learned D.R. and going through the orders of the authorities below we find no justifiable reason to interfere for the Revenue. In the first instance reopening of the case does not appear to be without turbidity. Apparently the assessing officer stretched himself too much to haul up the assessee, which derives income from an Ara machine. Not only that the assessees brothers were conducted leaves a lot to be desired. The alleged admission before Circle Inspector qua the receipts of the alleged rent has not been produced before us. Therefore, we cannot see by ourselves the exact nature and the kind of admission relied upon by, the assessing officer.
6.If the legal heirs are to be taxed on account of income from property left by a deceased, then their share in income cannot exceed the proportion by which the property devolved upon them. It remains so irrespective of the actual recipient who may or not be one of the heirs. The assessing officer on one hand disbelieved the claim of the widow that whole rentals were received by her yet at the same time he believed the alleg6d statement of one of the members of AOP that rents were received by him. First appellate authority believed the widow. Neither of them approached the matter in accordance with Muslim Law of Inheritance. Thus on facts both are prone to fault.
7. Learned first appellate authority has however necessarily made legal appraisal of the fact and circumstances, which led to reopening of the assessments in these years. This was besides his agreeing to the claim of widow on facts. Of this appraisal qua legality of reopening, learned D.R. has not said a single word: Therefore, in the given circumstances we find no justifiable reason to interfere for the Revenue.
???????????
8. Resultantly the five appeals fail.
M.BA./100/T ????????????????????????????????????????????????????????????????????????? Appeals dismissed.