TMI Blog2015 (1) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... re in the said property and they shall hold and enjoy their respective shares as exclusive owner and to use the same in any manner they like. This indicates that Smt. Sadath Khatoon, has not bequeathed the property to assessee but only power to enjoy the property during his life time. In that way, assessee's right in the property limited to the income is exclusive and to 100% of the income. In this context also, assessee's contention that he has only 25% right is not correct. Looking at either way, assessee's contentions cannot be accepted. In view of this, we affirm the orders of the authorities for the above reasons. - Decided against assessee. - ITA No. 797/Hyd/2013 - - - Dated:- 16-1-2015 - Shri B. Ramakotaiah And Smt. Asha Vijayaraghavan,JJ. For the Petitioner : Shri Mohd. Afzal, AR For the Respondent : Shri Rajat Mitra, DR ORDER Per B. Ramakotaiah, A. M. This is an assessee's appeal filed against the order of the Commissioner of Income Tax(Appeals)-18, Mumbai having concurrent jurisdiction over CIT(A)-VI, Hyderabad dated 06-03-2013. The issue in appeal is about taxability of certain rental income in the hands of the assessee. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld.CIT(A). 3. It was submitted that the wife of the assessee Smt. Sadath Khatoon, who was the real owner of the property, has expired in the year 2002. The declaration was considered as will of the lady and on her death the husband has succeeded to the entire property overlooking the interest of daughters of the deceased. As late Sadath Khatoon was a Muslim and was governed by the Muslim Personal Law / Mahommedan Law, it was contended that Sri Karam Ali Khan, Smt. Ishrath Khatoon and Smt. Aliya Khatoon are the legal heirs to the estate of deceased Sadath Khatoon. According to this law a bequest on only anyone of the Heirs is invalid without the consent of the others. The persons who cannot be excluded from succession by a testamentary disposition are those who are entitled upon the decease of the testator to a share in his inheritance whatever may be the category of their heir ship. This principle is founded upon direction contained in Chap.IV, verse 7, of the Koran To everyone have we appointed kinsfolk as heirs from their parents and relatives, and those with whom we have joined their right hands; so give them their portions, for verily God is over all a witness. The right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the declaration she has clearly mentioned that after her death, her husband will be the owner of this property and after his death, the property will be shared between her two daughters and their children. In the A.Y. 2004-05, the rental income was assessed in the hands of the assessee, but in the year under consideration, the assessee has shown the rental income of ₹ 84,000/- against the total rent received of ₹ 4,20,000/-. Therefore, the A.O. has issued notice u/s.148 and assessed the rental income of ₹ 4,20,000/- in the hands of the assessee as per the assessment made in the last year. The AR has submitted a memorandum of understanding which was reproduced by the A.O. in the assessment order. My predecessor has called for a remand report from the A.O. The A.O. vide letter dated 06.06.2011 has submitted the remand report, the gist of which is reproduced as under: As regards the assessee's claim under Muslim law, his contention is not acceptable. In this case, the owner of the property had not died intestate. She has executed a will during her life time clearly mentioning that her children shall enjoy the property after death of her husband. As such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own two daughters only will have to get right upon the death of the assessee. On the other hand, the AR has submitted that as per the muslim law that muslim can deprive the legal entitlement of his share and property of a successor. In this case, Smt. Sadat Khatoon wife of the assessee had totally deprived the legitimate share of her two daughters by allowing her husband to enjoy the property as an exclusive owners of the property during the life time. Thus, the appellant has argued that as per the muslim personal law, the share of rental income should be distributed among her two daughters and their two children. But the A.O. has submitted in the remand report that as regards the assessee's claim of succession under muslim law it was submitted that hon'ble Gujarat High Court in the case of CIT Vs.1bdul Rehman M. Pathan 243 ITR 409W was held that there would not arise any question of examining the principles or provisions of the personal law of the assessee in determining the fiscal liability for assessment under the I.T. Act. It was also held that when the provisions of the I.T. Act are clear, there would not arise any question of introducing or following the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Therefore, the other legal heirs, two daughters also claimed share accordingly, assessee an MOU allocating property income to the other legal heirs also. 6. As it was noticed that the final allocation of rental share is not according to the Muslim Law as claimed, further opportunity was given seeking clarifications and explanations. Accordingly, ld.Counsel placed on record the returns filed by various people and admitted that the MOU entered is also not according to Muslim Law. It was submitted that revised computation between three legal heirs was filed before the authorities admitting 25% share to Sri Karam Ali Khan and 37.50% share to each of the daughters. It was submitted that entire rental income cannot be assessed in the hands of the assessee. 7. The ld.DR however, relied on the orders of the Assessing Officer and CIT(A). 8. We have considered the issue and examined the documents on record. Before adverting to the contention that assessee follows Muslim Law and his share in the property is only 25%, the facts as verified from the records are as follows. There is no dispute to the fact that Smt.Sadath Khatoon owned property and that property was given on lease by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and death-bed gifts (if any) paid, out of the property of the propositus. 2. A person who according to Muslim law is an heir of the deceased remains so and gets his legal due. He or she cannot be excluded either by other heirs and survivors of the deceased or even under a specific direction left in that behalf by the deceased himself. One can be excluded from inheritance only under a rule of Muslim law, if applicable in India. Also, (Subject to the law of wills) the quantum of the share to which an heir may be legally entitled cannot be altered under a direction of the propositus. Where two relatives of the deceased who differ in sex are related to him exactly in an equal degree (e.g., his son and daughter) and both of them are, at law, his heirs-between the two the share of the male has (subject to a few exceptions) to be double the share of the female. So, where,1 person is survived by a son and daughter, out of the portion of his estate to be allotted to them the son will take 2/3 and daughter 1/3 similarly. A woman dies leaving behind (i) her husband (ii) two daughters, (iii) a full sister and (iv) a paternal second cousin: Heirs Hanafi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a testator to leave legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share, and the burden of proving the consent of a particular heir is upon the legatee. To the same effect is the decision in Ghulam Mohammad Vs. Ghulam Hussain, Under the Hanafi Law a bequest to an heir is invalid unless consented to by the other heirs after the testator's death. I-C. A Muslim under Personal Law cannot bequeath more than 1/3rd share in his property unless other heirs signify their consent. --LA Mohammedan is not entitled to bequeath more than 1/3rd of his estate after payment of funeral expenses and debts. It further specifies that any bequeath in excess of 1/3rd of his estate cannot take effect unless the heirs consent thereto after the death of testator. Learned Single Judge of the Karnataka High Court while interpreting the scope of sec. 118 of the Mohammedan Law held, that knowledge of bequeath and inaction for a long period by a heir challenging the bequeath, are sufficient circumstances that the said heir had signified consent by his conduct. The High Court agreed with the view of the learned Single Judge . 10. There is no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance property is to be divided between two daughters i.e., 25% of the whole property. According to correct interpretation of the law, assessee share of property should be 50% of the property and not 25% claimed/admitted. 11. However, as can be seen from the first MOU executed on 1st April, 2004, assessee and his two daughters and two grandsons were given equal share of 20%, admittedly not according to personal law. Subsequently, ignoring the Will of the property, the property was again distributed at 25% to assessee and 37.50% to two daughters each. Even this is not according to the personal law as submitted before us. In our view, the tenets of the Muslim Law have not been followed so as to contend before us that assessee is governed by the Muslim Law. May be, his personal rights are governed by the Muslim Law but the way the assessee and other legal heirs conducted themselves, the tenets of Muslim Law have not been followed as can be observed from the above. Moreover, the MOU dt.01-04-2004 has this to state. WHEREAS Smt. Sadath Khatoon was enjoying the said property during her life time, she expired on 24-03-2002. WHEREAS the said Smt. Sadath Khatoon had a Will and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
