V.P. Elhence, Judicial Member
1. The department is aggrieved of the order dated 1-10-1984 of the learned AAC, N-Range, New Delhi for the assessment year 1974-75.
2. The assessee is an individual. As a result of a dispute between the assessee and his wife Smt. Jogesh Rani. Smt. Jogesh Rani started living separately since 1948. The assessee’s wife also moved a petition for maintenance against the assessee before the Magistrate 1st Class, New Delhi under Section 488 of the Code of Criminal Procedure, 1898. The assessee had also a son named Shri Harchintan Singh. In 1948, the said son was a minor. An agreement was executed on 19-7-1948 between the assessee, his wife and his aforesaid son (through the guardianship of the assessee’s wife) whereby it was agreed that the assessee would pay to his wife and minor son maintenance amounts at the rate of Rs. 100 per month from 1-6-1948. The maintenance so far as the assessee’s wife was concerned, was to cease on the wife remarrying. The maintenance in respect of the minor son was to cease on his attaining the age of 18 years. There was also a condition in the said agreement that the maintenance allowance shall not be open for revision by the assessee or his wife in any civil or criminal Court of law. It was also agreed that a separate petition embodying the said agreement providing for payment of Rs. 200 per month as maintenance would be filed in the criminal Court in which the maintenance petition of the assessee’s wife was pending. The photostat copy of the said agreement has been placed on the paper book. For the assessment year 1974-75 in question, the assessee declared income from house property at Rs. 19,164. He claimed that a deduction of Rs. 4,500 be allowed to him representing annual charge on the said house property as contemplated under Section 24(1)(iv) of the Income-tax Act, 1961 (‘the Act’). However, the ITO mentioned in his order that the claim had been made by the assessee under Section 24(1)(v). According to the assessee, the maintenance amount of Rs. 200 per month referred to in the agreement dated 19-7-1948 had been claimed at the rate of Rs. 450 per month on account of inflation. However, the ITO disallowed the claim holding that the increase in the maintenance amount was voluntary and that the payment required to be made by the assessee was not a charge on the property and that it did not qualify for deduction as claimed.
3. In appeal, reliance was placed on behalf of the assessee on the decision of the Hon’ble Allahabad High Court in Addl. CIT v. Rani Pritam Kunwar [1980] 125 ITR 102. The learned AAC accepted the assessee’s submission and held that there did exist an overriding obligation on the part of the assessee to meet the liability in question. He held that even under the Hindu law the assessee was legally bound to provide maintenance to the wife and children. According to him, the right of the assessee’s separated wife and son became an equitable charge on his property and, therefore, there was a legal obligation to maintain the wife and son. He, therefore, accepted the assessee’s claim.
4. That is how the department has come up in appeal before us. On behalf of the department, Shri B.R. Tbora submitted that the house property of the assessee could not be said to be subject to an annual charge as claimed by the assessee. Reference was made by him in this connection to the agreement dated 19-7-1948 and to the letter dated 7-12-1976 of the assessee to his counsel. However, on behalf of the assessee Shri S. Ramanand Aiyar firstly raised the preliminary objection that the ground taken up on behalf of the department did not arise out of the order of the learned AAC as reference had been made therein to Section 24(1)(v) which was not relevant. Reliance was also placed by him on the following decisions :
CIT v. Sitaldas Tirathdas [1961] 41 ITR 367 (SC), Smt. Chhotabai Jewatraj v. ITO [1983] 3 ITD 36 (Ahd.), First ITO v. Surajba Patel Trust [1985] 13 ITD 447 (Bom.), Kantilal & Sons v. Second ITO [1985] 14 ITD 388 (Bom.), Smt. Savita Mohan Nagpal v. CIT [1985] 154 ITR 449 (Raj.) and CIT v. S. Subba Reddy [1986] 159 ITR 120 (AP).
Reliance was also placed by him on the following commentaries :
1. At page 249 of Chaturvedi and Pithisaria’s Income-tax Law, Third edn., Vol. 1.
2. At pages 560 and 561 of Sampath Iyengar’s Law of Income-tax, Seventh edn., Vol. 1.
5. We have considered the rival submissions as also the decisions referred to above. The clear claim of the assessee before the income-tax authorities was based upon Section 24(1)(iv) relating to annual charge. Notwithstanding the wrong reference to Section 24(1)(v) in the ITO’s order, the order of the learned AAC and in the grounds of appeal the claim of the assessee has to be examined with reference to the correct provision, i.e., Section 24(1)(iv). There is, therefore, no force in the preliminary objection raised on behalf of the assessee. Section 24(1)(iv) provides that income chargeable under the head ‘Income from house property’ shall be computed, where the property is subject to an annual charge (not being a charge created by the assessee voluntarily or a capital charge) after deducting the amount of such charge. The word ‘charge’ in the statutory expression ‘annual charge’ connotes something more than a mere liability to pay something more than the annual payment. The annual charge means an annual payment charged upon the house property. In the case of Sitaldas Tirathdas (supra) in computing his total income the assessee sought to deduct amounts paid by him as maintenance to his wife and children under a decree of Court passed by consent in a suit. No charge on any property of the assessee was created. On those facts, it was held by the Supreme Court that it was a case of application of income after it was received and not one in which there was a diversion by overriding charge. In the case of Rani Pritam Kunwar (supra) it was held by the Hon’ble Allahabad High Court that if the husband had property, the right of the widow to maintenance becomes an equitable charge on his property and the person who succeeds to the property, has the legal obligation to maintain the widow. It was held in that case that for payment to be an overriding charge, the charge should be created under any law or by Court’s decree or by a voluntary settlement or the obligation must be such that though note made a specific charge on the property, it can be enforced in a Court of law. In the case of Smt. Chhotabai Jewatraj (supra) charge was created specifically of two-third profits in favour of wife and son and, therefore, it was held to be an overriding charge. In the case of Surajba Patel Trust (supra), it was a case of diversion under a trust deed. In the case of Smt. Savita Mohan Nagpal (supra) there was an agreement with son to make further constructions and to give himself the income therefrom. The lease deed was jointly executed in the name of the assessee and her son and the amounts were received by the son of the assessee. It was held on those facts that it was not an annual charge on property under Section 24(1)(iv). So far as the case of S. Subba Reddy (supra) is concerned, in that case half of the interest received from the firm was diverted by an overriding title to the assessee’s son. It was held by the Hon’ble Andhra Pradesh High Court that the said interest was not includible in the assessee’s total income. It is true that in the agreement dated 19-7-1948 it was not mentioned that the maintenance amount if not paid, would be a charge on property. But in terms of the decision of the Hon’ble Allahabad High Court in the case of Rani Pritam Kunwar (supra) it could be said that there was a voluntary settlement which could be enforced in a Court of law. We are of the view that in terms of Section 24(1)(iv) there was thus an annual charge on the property.
6, This brings us to the question of quantum. The only agreement executed was of 19-7-1948. There was no subsequent agreement or settlement. Therefore, the assessee cannot rely upon the letter dated 7-12-1976 by which the maintenance allowance were increased to Rs. 450 per month due to inflation. So far as the agreement dated 19-7-1948 is concerned, it is necessary to consider the case of the assessee’s wife and of the assessee’s son separately. So far as the assessee’s wife is concerned, the assessee has filed a letter before us, to the effect that his wife had not remarried so far. Therefore, in terms of the said agreement the liability of the assessee for maintenance was there at the rate of Rs. 100 per month. However, so far as the son is concerned, the agreement dated 19-7-1948 does not give the age of the son but only describes him as a minor. The assessment year involved being 1974-75, it is not possible to hold that the assessee’s son continued to be below 18 years of age on the relevant date. Therefore, the assessee cannot say that there was any liability for the maintenance of the son in terms of the said agreement, so far as the assessment year in question is concerned. Therefore, the annual charge in terms of Section 24(1)(iv) could be said to be only worth Rs. 1,200 and not Rs. 4,500. We hold accordingly. To the said extent, the ITO would allow the assessee’s claim under Section 24(1)(iv).
7. The department’s appeal is accordingly, partly allowed.