IN INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS. 4984 & 4985/MUM/2015 : (A.Ys : 2009-10 & 2010-11) Sayeeda M H Peshimam Vs. ITO-23(1)-4, Mumbai Baitul Sharif, 101, Hill Road, (Respondent) Bandra (W), Mumbai 400 050. PAN : AACAS1996A (Appellant) Assessee by : None Revenue by : Shri Sumit Kumar Date of Hearing : 14/09/2016 Date of Pronouncement : 05/10/2016 ORDER captioned two appeals by assessee relate to Assessment Years 2009-10 & 2010-11 and involve certain common issues. Therefore, they have been clubbed and heard together and consolidated order is being passed for sake of convenience and brevity. Appeal for Assessment Year 2009-10 is taken as lead case to appreciate controversy. ITA NO. 4984/MUM/2015 (A.Y : 2009-10) :- 2. In this appeal, assessee has raised following Grounds of appeal :- 2 Sayeeda M H Peshimam ITA Nos. 4984 & 4985/Mum/2015 1. Considering facts and circumstances of case and in law, Commissioner of Income Tax (Appeals) - 30, Mumbai, [hereinafter, for sake of brevity, referred to as 'the CIT(A)'] erred in facts and in law in confirming income under Head 'Income From House Property' be assessed in hands of appellant though individual income of beneficiaries has been offered in hands of beneficiaries, and it is prayed that income be assessed in hands of beneficiaries and not in hands of appellant. 2. Considering facts and circumstances of case and in law, it is prayed that rent received on property be distributed amongst beneficiaries as accepted by Revenue in earlier years by giving NIL Tax deduction certificate based on same premise. 3. Considering facts and circumstances of case and in law, CIT(A) erred in considering rent received as income of appellant despite coming to conclusion that income belonged to Sayeeda Peshimam (Individual) and not income of appellant. 4. Considering facts and circumstances of case and in law, CIT(A) erred in considering income of appellant taxable at maximum marginal rate without even issuing notice regarding enhancement of tax. 5. Considering facts and circumstances of case, CIT(A) erred in considering income of appellant taxable at maximum marginal rate. 3. Although appellant-assessee has raised multiple Grounds of appeal, but solitary dispute relates to whether rental income earned from property being Betul Sharif Bungalow, 104/105, Survey no. 244, Hill Road, Bandra (W), Mumbai 400 050 is to be taxed in hands of nine numbers of Association of Persons (AOP), as contended by assessee or solely in hands of assessee, as held by income-tax authorities. 3 Sayeeda M H Peshimam ITA Nos. 4984 & 4985/Mum/2015 4. At time of hearing, it was noticed that inspite of service of notice of hearing by Registered A.D, none appeared on behalf of appellant-assessee while ld. DR appeared for respondent- Revenue. No application seeking adjournment has also been made on behalf of appellant-assessee. In this view of matter, following Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963, appeal is being disposed of ex parte qua appellant-assessee after hearing ld. DR on merits. 5. At outset, ld. DR pointed out that both appeals filed by assessee were belated. record shows that appeals have been filed late by 141 days. Alongwith appeals, assessee has filed Affidavit stating that due to illness of her mother, appeals could not be filed in time. ld. DR pointed out that Affidavit filed by assessee is quite general and vague and no specific reason has been brought out for condonation of delay. After perusing Affidavit and noticing absence of assessee because of which there is no material which can be verified to understand contents of Affidavit, I hold that delay in filing of appeals have not been adequately and properly explained. Therefore, in my view, in absence of any justifiable reasons for delay, appeals are liable to be dismissed as unadmitted. I hold so. 6. Even otherwise, having perused orders of respective income-tax authorities, I find no error in their approach in denying claim of assessee. Notably, following factual aspects have been 4 Sayeeda M H Peshimam ITA Nos. 4984 & 4985/Mum/2015 noticed by CIT(A). CIT(A) noticed that property in question was purchased and constructed in 1965 by late Shri Mohammed Hasan Husain Peshimam in name of Smt. Sayeeda Mohhamad Hasan Peshimam. income from said self-occupied property was assessed u/s 64 of Act in hands of Shri Mohammed Hasan Husain Peshimam, late husband of present assessee till amendment was made in law to effect that self-occupied property, i.e., SOP was to be valued at Rs. NIL. CIT(A) has also noticed that rental agreement dated 29.3.1985 with Corporation Bank from where impugned rentals have been earned was also entered into by owner of property, i.e., Smt. Sayeeda Mohhamad Hasan Peshimam. In this background, CIT(A) has concluded as follows :- 9.5 Therefore, under income-tax Act, when property was never in name of Late Shri. M.H.H. Peshimam, and owner property is alive, question of legal heirs coming in to claim their stake over property does not arise. Further, Corporation Bank is making payment to Smt. Sayeeda M.H. Peshimam. No agreement has been placed to show that it has been entered into with AOP. Formation of AOP has thus, been illegally arrived at by Smt. Sayeeda M.H. Peshimam with ploy to pay minimum tax on rental income of Rs.23,88,500/-, which is substantied by fact that so called 6 beneficiaries vide their returns of income (copy of which has been filed during course of appellate proceedings) have either shown Nil taxable income or very negligible amount of income. appellant has been getting away by not making payment of any tax, or negligible tax on above income since 10.01.2002, that is A.Y 2002-03/2003-04 onwards. 9.6 issue now is when rental income should have been offered in individual return of income of Smt. Sayeeda M.H. 5 Sayeeda M H Peshimam ITA Nos. 4984 & 4985/Mum/2015 Peshimam, whether same can be taxed in hands of AOP in her name. I hold that since TDS relating to rent has been claimed in return of income filed in name of AOP, entire income is to be assessed in hands of AOP at maximum marginal rate. I, Therefore confirm addition of Rs.14,66,605/- and dismiss second ground of appeal of appellant. 7. In absence of any facts or material brought out before me to contrary, I hereby affirm aforesaid conclusion of CIT(A). Thus, on merits also, I find no reason to accept plea of assessee. 8. In result, appeal of assessee is dismissed. 9. Insofar as appeal of assessee for Assessment Year 2010-11 is concerned, it was common point between parties that facts and circumstances in ITA No. 4985/Mum/2015, for Assessment Year 2010-11 are pari materia to those considered by us in ITA No. 4984/Mum/2015, for Assessment Year 2009-10, thus, my decision therein shall apply mutatis mutandis in this appeal also. 10. Resultantly, both appeals of assessee are dismissed. Order pronounced in open court on 5th October, 2016. Sd/- (G.S. PANNU) ACCOUNTANT MEMBER Mumbai, Date : 5th October, 2016 SSL 6 Sayeeda M H Peshimam ITA Nos. 4984 & 4985/Mum/2015 Copy to : 1) Appellant 2) Respondent 3) CIT(A) concerned 4) CIT concerned 5) D.R, SMC Bench, Mumbai 6) Guard file By Order Dy./Asstt. Registrar I.T.A.T, Mumbai Sayeeda M H Peshimam Baitul Sharif v. ITO-23(1)-4, Mumbai