Smt. Chennamaneni Mangamma,, ... vs Department Of Income Tax

DCIT 9 (1) Smt. P. Vijayalaxmi, Hyderabad. vs. L/R of late Smt. Chennamaneni Mangamma, 2-73, Ramannapet, Varkatpalli (v), Nalgonda Dist., PAN AAUPC0604J (Appellant) (Respondent)

For Revenue : Mr.Rajat Mitra For Assessee : Mr. K.C. Devdas

Date of Hearing : 05.01.2015 Date of Pronouncement : 09.01.2015

ORDER

PER P.M. JAGTAP, A.M.

This appeal is preferred by Revenue against the Order of Ld. CIT(A)-VI, Hyderabad dated 27.12.2013 on the following grounds :

1. "The order of Ld. CIT(A) is against facts of the case.

2. Whether the Ld. CIT(A) is correct in relying on the decision of the Hon'ble Supreme Court of India in the case of CIT vs. Shambhu Investment Pvt. Ltd., confirming the decision of Hon'ble High Court of Calcutta in view of the fact that, the issue involved in the instant case is different from the facts of the case relied upon by the Ld. CIT(A).

2 ITA.No.742/Hyd/2014 Smt. Chennamaneni Mangamma, Hyderabad.

3. Whether the Ld. CIT(A) is correct in law in holdig that the "income from composite lease deeds is to be treated as "Income from House Property" inspite of clear mention in the lease deed that 40% of the amount payable by the tenant is towards amenities provided.

4. Whether the Ld. CIT(A) is correct in law in holding that the "Income from composite lease deeds is to be treated as "Income from House Property" in the light of the specific clause (9) of the lease deed which mentions that " in case of delay in installing the generator by the LESSOR, then the commencement of the lease shall be postponed to such period of delay and the rent for the schedule A premises and the Schedule B assets shall start only after the installation and the proper working of the generator", which means that the assessee had bifurcated the property into two different premises viz. Schedule A premises and Schedule B Assets.

5. Whether the Ld. CIT(A) is correct in Law in holding that the "Income from Composite lease deeds is to be treated as "Income from House Property" relying on the decision of the Hon'ble High Court of Kolkata in the case of Kanak Investment Pvt. Ltd., 95 ITR 419 (Cal.)' in which case, the Hon'ble High Court had held that in case there was composite rent charged for letting out the property as well as the services rendered, it has to be split up and the amount which is attributable to the property to be assessed as "income from House Property and the amount relatable to the rendering of services should be assessed as income from other sources".

6. Any other ground that may be urged at the time of hearing."

2. We have heard the arguments of both sides and also perused material available on record.

3. As submitted by Ld. Counsel for the assessee at the outset, assessee has already expired way back on 2nd September, 2013 i.e., well before the impugned order came to be passed by Ld. CIT(A) on 27.12.2013. He has also filed copy 3 ITA.No.742/Hyd/2014 Smt. Chennamaneni Mangamma, Hyderabad.

of death certificate issued by Greater Hyderabad Municipal Corporation showing the date of death of the assessee as 2nd September, 2013. The impugned order passed by Ld. CIT(A) thus is in the name of a dead person and the same has been so passed because the intimation of death of assessee was not given to Ld. CIT(A) as agreed even by Ld. Counsel for the assessee. In the case of CIT vs. Dalumal Shyamumal ( 2005 ) 276 ITR 62 the decision of the Tribunal holding the assessment order passed by A.O. against a death person to be a nullity was upheld by Hon'ble Madhya Pradesh High Court. It was further held by Hon'ble Madhya Pradesh High Court that the Tribunal should have remanded the case to the A.O. to ensure compliance of section 159 of the Act and for passing appropriate order of assessment, after due notice to the legal representative of the deceased assessee. Keeping in view the decision of Hon'ble Madhya Pradesh high Court in the case of CIT vs. Dalumal Shyamumal (supra), and having regard to the facts of the case, we set aside the impugned order passed by Ld. CIT(A) in the name of deceased-assessee holding the same as nullity and remit the matter back to him with a direction to pass a fresh order disposing of the appeal of the assessee after complying with the requirements of section 159(2). The legal representative of the assessee is also directed to extend all the possible cooperation to the Ld. CIT(A) by furnishing all the relevant particulars and details required by him for the purpose of disposal of the appeal.

4. In the result, appeal of the Revenue is treated as allowed for statistical purposes.

4 ITA.No.742/Hyd/2014 Smt. Chennamaneni Mangamma, Hyderabad.

Order pronounced in the open Court on 09.01.2015.

Sd/- Sd/- (ASHA VIJAYARAGHAVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER

Hyderabad, Dated 09th January, 2015

VBP/-

Copy to

1. The Deputy Commissioner of Income Tax, Room No. 245, Block 2D, Second Floor, I.T. Towers, A.C. Guards, Masab Tank, Hyderabad.

2. Smt. P. Vijayalaxmi, Hyderabad L/R of late Smt. Chennamaneni Mangamma, 2-73, Ramannapet, Varkatpalli Village, Nalgonda District.

3. CIT(A)-VI, 6A, I.T. Towrs, A.C. Guards, Hyderabad-004.

4. CIT-VI, Hyderabad.

5. D.R. I.T.A.T. "B" Bench, Hyderabad.