TMI Blog2002 (9) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) being bad in law may be set aside and the order of the Assessing Officer be restored." 2. The brief facts of the case are that the assessee is stated to be I.G. Police and derived income from salary and house property. The assessee has constructed a house at Mahanagar, Lucknow and the total cost of construction had been shown at Rs. 6,83,692. The rental income derived from this house has been distributed equally between the co-owner, Shri C.K. Malik (assessee), his wife, Smt. Laxmi Malik and his sons, Saurabh Malik and Neeraj Malik, whereas the investment in the house had been shown as follows:- 1. Shri C.K. Malik Rs. 5,54,791 2. Smt. Laxmi Malik Rs. 1,00,400 3. Saurabh Malik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lah v. Ahmad AIR 1929 All. 817. The ld. DCIT(A) after considering section 45 directed that the house property income to the extent of 1/4th is liable to be included in the income of the assessee. The Revenue is in appeal before us on the grounds mentioned above. We may mention here that earlier this case was heard by another SMC Bench, ITAT, Allahabad, but was released. In the appeal papers we find that copy of the judgment of Allahabad High Court in Saiyad Abdullah's case and copy of mortgage deed executed by the assessee in favour of State of Uttar Pradesh as well as copy of the lease deed dated 29-10-1986 for plot No. A-700 (A) situated in Sector C, Mahanagar Housing Scheme, Lucknow in favour of the assessee and others is filed. It appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of the lessee i.e. the assessee and his family members. Even obviously the lease deed being personal in nature would not define the rights and shares of the parties. According to the lease deed, the lessees are entitled to enjoy the property as per the terms contained in the lease deed. We are not mentioning the terms contained in the lease deed as the same are not relevant for the disposal of this appeal. However, it is undisputed that the assessee and his other family members have made investment in this property for the purpose of obtaining the lease as well as for raising the construction. The details of the shares of the investment have already been incorporated above. Section 45 of the Transfer of Property Act is reproduced here f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportion to the shares of the consideration which they respectively advanced. The last requirement of section is that in the absence of evidence as to the interest in the funds to which they were respectively entitled or as to the shares which they respectively advanced such persons shall be presumed to be equally interested in the property. The third requirement is the exception to Rule. The first two conditions of section 45 of the Transfer of Property Act clearly specifies that in the absence of contract to the contrary, the persons will be entitled to the share in the property according to their shares in the consideration which they have invested or advanced out of common fund or separate fund. If no evidence is available, then all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, but in the case in hand, there is no sale deed in favour of the assessee and others. Only a lease deed was granted by the Lucknow Development Authority, which has defined the personal rights of the parties to enjoy the property. In this appeal, the shares of the investment of various persons are very specific and as such this authority is clearly distinguishable and is not applicable to the facts of this case. The Assessing Officer has rightly assessed the share of the assessee in the rent according to section 26 of the Income-tax Act as according to this section where the respective shares are defined and ascertainable then the share of each person should be included in his total income. In the present appeal, the share of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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