TMI Blog1981 (10) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... rely directed the ITO to recompute the income from property as per the directions of the Tribunal for the earlier assessment years. We must perforce look to the order of the Tribunal dated 27-6-1978 in IT Appeal Nos. 2744 and 2745 of 1977-78 relating to the assessment years 1973-74 and 1974-75 for the relevant facts of the case which are as follows: The income in question is derived from a flat by name, "Capri", 24, Vanamamandi Road, Bombay. The property was owned by Shri. Deepak L. Bankar. Since he was employed at Madras, he could not himself reside in the flat, but his father was staying in that flat. Section 23(3)(a) provides that, if the house was not actually occupied by the owner during the previous year there shall be an abatement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this assessee. 4. We are unable to entertain this contention of the revenue which depends upon the decision of the Madhya Pradesh High Court in the case of Shrigopal Rameshwardas v. Addl. CIT [1979] 119 ITR 980. That decision was rendered in the context of section 54 which provides for relief in the computation of capital gains where the house property is used by the assessee or a parent of his for their own residence. The terms of section 23(3)(a) are not pari materia as this section refers only to a residential house which cannot be occupied by the owner by reason of the fact that he is to reside in some other place. According to the revenue the reference to his having to reside in any other place makes it clear that the word "owner" i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residential house which could not be actually occupied is given abatement in the annual value on contrasted with a house which is let out or from which the owner derives some benefit. The contention of the revenue that a HUF as owner cannot actually occupy the residential house only reaffirms the fact that the residential house is not in the actual occupation of the HUF. Therefore, if the other conditions, namely, that the house is not let out and that the owner does not derive any benefit are fulfilled, there is no reason why the owner, in this case happens to be a HUF, should not be allowed the abatement available under this section. It is not the case of the revenue that any member of the HUF is in actual occupation of the house as, obvi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
