Commissioner of Income Tax, Lucknow vs S.M. Arif

The income tax Appellate Tribunal, Allahabad, has referred the following question of law u/s 256(1) of the income tax Act, 1961 (hereinafter referred to as ''the Act'') for opinion to this Court : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the property situated at Nawal Kishore Road, Lucknow, stood transferred to the wife of the assessee, Farzana Arif, in satisfaction of her claim for ''Mehar'' and that the income of the said property should, therefore, be assessed in her hands and not in the hands of the assessee?"

The matter relates to the assessment year 1982-83.

The facts in brief are as follows :

The assessee-respondent owned a property situate at Nawal Kishore Road, Lucknow, which was given by him to his wife, Smt. Farzana Arif in satisfaction of her claim for ''Mehar''. She has been since then filing the return of income from the said property and is also being assessed as such. The income tax Officer in the case of assessee respondent did not accept the claim of the assessee that the property no longer belonged to him because such property has not been transferred in the name of the wife by a registered deed. He, therefore, assessed the income from the property in hand of the assessee-respondent. However, the Tribunal has set aside the order of the income tax Officer and has held that in the earlier orders in the assessee''s own case, the transfer of property by the respondent assessee to his wife in lieu of ''Mehar'' has been accepted.

Heard Sri R.K. Upadhya, the learned standing counsel for the department and Shri Shakeel Ahmad for the assessee.

It has been agreed by the counsel for the parties that similar question came up for consideration in CIT v. Shekh Mohammad Arif [2005] 145 Taxman 199 for the assessment years 1979-80 and 1980-81, before this Court and it has been held that in view of the fact that the wife after transfer started dealing with the property as owner thereof and she has let out the property to the tenant and realized rent from them and her name has also been mutated in the municipal record, therefore the Tribunal rightly came to the conclusion that the assessee-respondent ceased to be the owner of the property in question after transfer and his wife became the ''owner'' within meaning of section 22 of the Act. Respectfully following the aforesaid judgment, we answer the above question in affirmative, i.e., in favour of the assessee and against the department. There shall be, however, no order as to costs.