Egbert Singh, Accountant Member - (1.)THE appeal is by the assessee which is preferred against the order of the C.I.T.(Appeals) by which various claims of the assessee were rejected.
(2.)In the assessment order, the I.T.O. mentioned that the assessee showed in the return an income of Rs. 21,670 which included salary of Rs. 3,600 and l/5th share of rent from multi-storeyed R.C.C. building known as Babi Market at Ganeshguri, Charali, Gauhati. The assessment was made under Section 143(1). Later on, the case was taken on scrutiny and the assessment was re-opened under Section 143(2)(b). The assessee claimed that she had one-fifth share only from the rental income. The I.T.O. pointed out that the assessee was assessed for the first time for the assessment year 1982-83 where her share was shown at l/3rd in the same building. The assessment year involved now is 1985-86. The I.T.O. pointed out that for the assessment year 1982-83, it was pointed out that the assessee along with her two children, namely, Md. Bakhtiar Ali Ahmad and Saira Banu Begum, purchased a plot of land on which the present building stands, and as such the assessee's share was l/3rd in the land and the building. The I.T.O. mentioned that this was found to be incorrect. The I.T.O. went on to say that for the assessment year 1985-86, the assessee claimed to be the owner of l/5th share. The other four co-owners were Saira Banu Begum, M.D. Bakthiar Ali Ahmad, Abeda Begum and Aftab Ali Ahmad. Before the I.T.O., the assessee claimed that there was a family settlement agreement which was effected on 9-7-76 duly signed by all the brothers and sisters including the husband of the assessee. It was pointed out that there was a land of 2 K 13 lechas at Dispur on which the building stands and that the land was exclusively given to the assessee in her exchange of her 19 bighas 1 K17 lechas of land being agricultural land at village Bihadia. It was stated that this Bihadia Village land was the marriage dower of the assessee known as Meher. The assessee is a Mohammedan. The husband of the assessee Shri Bahar Ali was also a signatory to the family settlement. According to the I.T.O. Meher is the exclusive and absolute property of any married Mohammedan lady and she is the absolute owner of the land exchanged i.e. 2 K 13 lechas of land at Dispure. According to him none else can have any claim in the aforesaid land. He pointed out that the Gauhati Municipality issued a permission by order dated 3-1-78 exclusively to the assessee to construct 8th storey building on the aforesaid land and accordingly the foundation for the 8th storeyed building was laid by the assessee. It appears that the permission was renewed vide order dated 3-10-87. The I.T.O. pointed out that the assessee took loan on 8-7-81 for Rs. 3;00,000 from the Central Bank of India, Dispur Branch exclusively to her on a equitable mortgage deed on the said land pledged to the Bank.
The I.T.O. inferred that all these facts show that the assessee is the exclusive owner of the said land and the building thereon and, therefore, there was no question of l/3rd or l/5th ownership as claimed by the assessee. He noted that an affidavit was placed before him as sworn by the assessee and other two co-sharers who claimed to be the owner of l/5th share in the property, which was on mutual understanding and agreement. The I.T.O. was of the view that by swearing an affidavit a person cannot claim ownership of the property of which he is not the owner. He pointed out that the assessee's sons and daughters cannot claim the ownership in the property by an affidavit. He, therefore, held that the assessee was the exclusive and absolute owner of the land and property. He pointed out that attempts were made by the assessee's children to change the ownership right in their favour by changing municipal records and that the assessee's children have shown to have paid municipal taxes etc. for the different floors allotted to them, pretending that each of them was the owner of such floor as per municipal records. According to the I.T.O., payment of municipal taxes would not confer any ownership to such property as even tenants themselves can pay such municipal taxes. He pointed out that the advances and loans taken from the tenants for construction, naturally belongs to the lady-assessee. On that basis, the I.T.O. proceeded to compute the income treating the assessee as the sole owner of the property in question.

(3.)THE I.T.O. also worked out the amount of investment made by the assessee as far as the construction went up to the year under consideration. Various points were dealt with by him in the assessment order. THE I.T.O. did not accept the contention of the assessee that certain investments were made by using materials purchased on credits. But in the absence of supporting evidence, the I.T.O. did not give credit for such things. He also found that the drawings were not made by the assessee during the year. On this point also, Rs. 6,000 addition was made. THE total income was computed at Rs. 7,34,840.