TMI Blog1981 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive Committee of the Directors of the A.C.C. Ltd. sanctioned further payments of gratuity amounting to Rs. 32,500 and Rs. 32,450 ion their meetings dt. 27th July 1976 and 2nd August 77. The assessee offered for taxation in his returns for the asst. yrs. 1977-78 and 1978-79. The ITO was of the view that the right to recover the grautity amounts Rs. 32,500 and 32,450 accured to the assessee in the asst. yr. 1976-77 and as such, the same were liable to be taxed in his hands in this year. He further held that the mere fact that payments of gratuity amounting to Rs. 32,500 and Rs. 32,450 were sanctioned by the Executive Committee of the Directors of the A.C.C. Ltd. in the subsequent years did not override the provisions of ss. 15 and 17 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. representatives of the parties, we do not find any reason to interfere with the order of the CIT(A). It appears from the record that according to the scheme of the company in which the assessee was employed, the payment of gradutity could become payable to the assessee only after the sanction of the Executive Committee of its Directors. In other words, the assessee could not claim any amount from the company by way of gradutity as a matter of right prior to the requisite sanction of the Executive Committee of the Directors. In the present case, the Executive Committee of Directors of the ACC Ltd. Sanctioned the payments of gradutity amounting to Rs. 32,500 and 32,450 only on 27th July 1976 and 2nd August 1977. That being so the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cosmopolitan Co-op. Housing Society. He gifted this flat to his wife some time in the year 1972. After the departure of the assessee from India on 11th July 1975. After the departure of the assessee from India in March 1975, his wife stayed here till 11th July 1975, she handed over the possession of her flat to her son, Ashok Gulati, who had, by then, returned to India from Germany, Thereafter, Shri Ashok Gulati maintained the house and also paid all the charges like Municipal taxes and society dues etc. The ITO observed that the income from the said flat had always been assessed in hands of the assessee u/s 34 of the IT Act,1961 and that the house had, in fact, been maintained by the wife and son of the assessee for and on behalf of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case which are not denied, it cannot be held that he maintained a dwelling place or that he maintained for him a dwelling place. He did not own the property as the had gifted the same in the year 1972. The deeming provisions of section 64 had been invoked to assessee the property income in the hands of the appellant under Sec. 27. Section 27 is applicable only for the purpose of Sec 22 to 26. The expression 'he maintain a dwelling place' have been elaborately discussed in the recent decision of the Supreme Court in the case of CIT vs. K.S.Ratnaswamy (1980) 14 CTR (SC) 377 : (1980) 122 ITR 217 (SC). In either of these expressions the volition on the part of the appellant in the maintenance of the dwelling place emerges very clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -s. (b) of s. 6(1) requires is that the assessee must maintain or have maintained a dwelling place and the dwelling place must be maintained not for any member of the family or his friends but maintained for the assessee himself. The fact that there is a friend's or parents, or other relative's house at which the assessee can and does stay when ever he is in India but without a legal right to use or occupy the house would not be sufficient compliance with aforesaid condition (S.M. Zackaiah vs. CIT (1952) 22 ITR 359 (Mad). In this case the court held that the expression "maintains a dwelling house" connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and, as a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this house is his home. A man may have more than one home, he may have a home at different places ; but with regard to each one of these he must be able to say that it is something more than a mere house or a mere residence. It is not sufficient in order to satisfy that test that there is a dwelling place in the taxable territories in which the assessee goes and lives. What is necessary and what is essential is that the dwelling place must be a house or a building or a part of the building which must be set apart and made available for him, in which he could live if he so desired as a home. There must also be in him a right to live in such a dwelling place maintained for him, because without that right, it could not be said that he has e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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