COMMISSIONER OF INCOME TAX Vs. BIBIJAN BEGUM MRS

JUDGEMENT

(1.) AT the instance of the Revenue, the following five questions have been referred by the Income-tax Appellate Tribunal under Section 256(1) of the Income-tax Act, 1961 (for short, "the Act"), for opinion of this court :

(2.) THE respondent/assessee filed her return for the assessment year 1985-86. THE Income-tax Officer while making the assessment noticed that the return was filed showing a gross income of Rs. 21,670 which constituted partly income from salary and one-fifth share of rental income received from house property. After adjustment of certain relief, the assessment was completed under Section 143(1) of the Act on February 19, 1987. THEreafter, the assessment was taken for scrutiny and was reopened under Section 143(2) of the Act after obtaining approval from the Inspecting Assistant Commissioner of Income-tax. THE Income-tax Officer pointed out that the assessee filed her return for the first time for the assessment year 1982-83 and in the said return her share was shown as one-third of the building and indicated that the assessee along with her children, namely, Md. Bakhtiar Ali Ahmed and Saira Banu Begum, purchased the said plot of land on which the present building stands. According to the Income-tax Officer, this contention was incorrect in view of the facts stated above. For the assessment year 1985-86, the assessee claimed to be the owner of one-fifth share only in the aforesaid land and building, the other co-owners were stated to be : (1) Saira Banu Begum ; (2) Md. Bakhtiar Ali Ahmed ; (3) Abeda Begum ; and (4) Aftab Ali Ahmed. THE assessee submitted a copy of the family settlement agreement dated June 9, 1976, signed by all the brothers and sisters of Sri Bahar Ali, husband of the assessee, and in that settlement it was stated that the land in question was covered by Dag No. 49, Patta No. 17, Mouza-Beltola, having an area of land measuring 2K, 13L and a multi-storeyed building stood thereon. It was further contended that the said land was obtained by the assessee in exchange of the assessee's 19B 1K 17L--a village land. She received it in marriage as dower also known as "mehar". Land measuring 2K, 13L at Ganeshguri Chariali, Guwahati, obtained by the assessee was earlier owned by Nazar Ali, Suleman Ali, Noor Ali and others. THE Income-tax Officer held that the mehar was an exclusive and absolute property of a Muslim married lady and the assessee was the owner of the said land and no other person could claim any right over the said property. THE Income-tax Officer further held that as per the records of Gauhati Municipal Corporation, permission was given exclusively to the assessee for construction of the multi-storeyed building and the same was constructed by the assessee. THE bank loan of Rs. 3 lakhs was also taken by the assessee herself by mortgaging the said land. THErefore, the Income-tax Officer was of the opinion that there was no question of the assessee having one-third or one-fifth share of the property. She herself was the exclusive owner and her claim any right to the property (sic). THE assessee filed an affidavit dated February 8, 1988, corroborating her claim. THErefore, the children cannot claim ownership in the property. THE Income-tax Officer held that the children and the assessee had changed the municipal record to show that they got ownership right in their favour and they paid municipal taxes for different floors standing in their names. THE Income-tax Officer also held that mere paying of municipal taxes would not change the ownership of the property. THE Income-tax Officer, therefore, computed the income of assessee at Rs. 7,34,840 after considering different amounts of investment and expenditure.

(3.) WE have heard Mr. G.K. Joshi, learned standing counsel, appearing for the applicant/Revenue and Mr. B. Malakar, learned counsel appearing for the respondent/assessee.