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Cit Kanpur v. C. Rastogi - INCOME TAX REFERENCE No. 30 of 1999 [2007] RD-AH 37 (2 January 2007)


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Court No.2

Income Tax Reference No.30 of 1999

Commissioner of Income Tax, Kanpur

v. Dr.(Miss) Chandra Kanta Rohtagi, Kanpur

Hon'ble R.K.Agrawal, J.

Hon'ble Vikram Nath, J.

(Delivered by R.K.Agrawal, J.)

The Income Tax Appellate Tribunal, Allahabad has referred the following questions of law under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for opinion to this Court:-

"(i) Whether in law and on facts the Tribunal was justified in excluding the income from property at 16/72, Civil Lines, Kanpur from the hands of the assessee ?

(ii) Whether transfer of an immovable property by any person without any consideration to a Trust which is not regarded as charitable Trust is covered under the definition of dedication/endowment ?

(iii) Whether to complete such transfer as described in question no.2 above, there is no need of an instrument duly registered as prescribed in Section 123 of the Transfer of Property Act as well as u/s 17 of the Indian Registration Act, 1908?"

The reference relates to the Assessment Year 1981-82.

Briefly stated, the facts giving rise to the present reference are as follow:-

The assessee is a lady doctor in Kanpur and owned a property located at 16/72, Civil Lines, Kanpur in which a Nursing Home and Hospital was run by the assessee. The assessee did not disclose the income from house property on the ground that the said property with Hospital had been irrevocably set apart and delegated for charitable purposes in favour of Chandra Kanta Jawaharlal Public Charitable Trust, Kanpur, on 1.4.1977. The assessee had in earlier year placed a trust deed and other details before the A.O. However, the A.O., following his earlier order, included the income of the Trust, consisting of property income and professional income, in the total income of the assessee. In appeal, the Commissioner of Income Tax (Appeals) observed that in the case of the Trust for the assessment year 1981-82, his predecessor has held that the Trust is a public charitable Trust and the income of the Trust belongs to the Trust itself in substantive capacity. Following this order, the income of the Trust, included in the total income of the assessee for the year under reference, was ordered to be deleted. In appeal by the Department, the Tribunal, vide its order dated 7.9.1995, rendered in I.T.A.No.952(Alld) of 1989, referred to the orders passed by the previous Benches of the Income Tax Appellate Tribunal, Allahabad, in I.T.A.Nos.1698(Alld) of 1995 dated 12.7.1989 and I.T.A.No.1471(Alld) of 1983 dated 26.12.1985. The finding recorded in I.T.A.No.1471(Alld) of 1983 dated 24.12.1985, to the effect that the assessee was not the owner of the property in question as on 31.3.1978, being the last date of the accounting year for the assessment year 1978-79 and, therefore, she cannot be taxed on the income of the property, was referred to. Following the same and the decision of the Tribunal for the assessment year 1978-79, the appeal filed by the Department was dismissed.

We have heard Sri A.N.Mahajan, learned Standing Counsel for the Revenue.

We find that identical question came up for consideration before this Court in the case of this very assessee for the assessment years 1978-79 and 1979-80 and this Court, vide judgment and order dated 1.10.2005 has answered the questions in favour of the assessee and against the Revenue. The decision is reported in (2005) 279 ITR 561.

Respectfully following the aforesaid decision, we answer all the three questions referred to us in favour of the assessee and against the Revenue. There shall be no order as to costs.




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