B.P. Banerjee, J. - (1.) The Tribunal has referred the following questions of law to this Court under Sec. 254(1) of the Income -tax Act, 1961 ('the Act'): Whether, on the facts and in the circumstances of the case and in view of the 50 per cent undivided share in the house property at No. 5/9, Mullick Street, Calcutta donated by the assessee to Smt. Ratna Devi Bagaria Charity Trust having not been registered in favour of the Trust during the relevant assessment years 1980 -81 and 1981 -82, the Tribunal was justified in deleting the income from the said property included in the assessment of the assessee? The year of assessment is 1980 -81, for which the relevant period of account is the year ending on 23 -3 -1980.
(2.) The facts of the case as narrated by the Tribunal in the statement of case are as follows: The assessee was 1/2 owner of the property at No. 5/9, Mullick Street, Calcutta. The other co -owner was Smt. Ratna Devi Bagaria who by her last will and testament dated 29 -3 -1977 created a trust in respect of her undivided half share for charitable purpose to be known as Smt. Ratna Devi Bagaria Charity Trust having its office at 23A, Netaji Subhas Road, Calcutta. The last will and testament of Smt. Ratna Devi Bagaria was probated by the High Court by its decision dated 23 -12 -1982. The other half owned by the assessee was also given to the said trust by a deed of declaration dated 3 -12 -1977. The assessee during the assessment years 1980 -81 and 1981 -82 did not show any income from the property at No. 5/9, Mullick Street. The ITO following his order for the assessment year 1978 -79 took the income from the house property at Rs. 6,876in each year. The income from those property so taken by the ITO has been confirmed by the Commissioner (Appeals).
(3.) The assessee's counsel filed a copy of the conveyance deed as well as copy of the declaration and the assessment order of Smt. Ratna Devi Bagaria Charity Trust for the assessment years 1979 -80 to 1981 -82 and urged that though the conveyance deed was not executed by Smt. Ratna Devi Bagaria and Smt. Prabha Devi Bagaria when the property was given to the trust but the trust being assessed on the income from house property since it took over the property from the two donors. The assessee's counsel stated that as the income from the house property was taxed in the hands of the recipient it was unnecessary litigation and, therefore, the income included by the ITO should be deleted. The departmental representative referring to the decision in CIT v/s. Ganga Properties Ltd. : [1970] 77 ITR 637 (Cal.) urged that the assessee only should be assessed for income from the house property.;