9911796707
TMI Blog1976 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative relying on the decision of the Calcutta High court in Liquidator, Mahmudabad Properties Ltd. vs. CIT 83 ITR 470 (Cal) submitted that vacancy allowance would be available only if the property was vacant for part of the year and that whether the property is in good repair or not would go to the quantum of the annual letting value and it cannot affect the vacancy allowance as such. 4. We are unable to agree to the views of the Department. We think the case decided by the Calcutta High Court can be distinguished. While discussing the claim under s. 24(1)(ix) the High Court observed as follows :— "Secondly, under s. 24(1)(ix) of the IT Act where the 'property is let and was vacant', then the assessee is entitled to deduct that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be let out. In this sense they found that the first condition is not satisfied. Therefore, if the property is to be let out but because of some reasons tenants were not available and it was vacant, the ratio of the Calcutta case will not apply. In order to apply the ratio of the Calcutta case, it has to be shown that the property cannot be let out at all. Such is not the case here. We understand the decision of the Calcutta High Court in this case and on these facts only. 6. The matter therefore, does not appear to be res integra. We have necessarily to examine the clause carefully in order to find out whether the interpretation given by the Department could be upheld. According to the Department, the words 'vacant during a part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other which would lead to such an anomaly, we should prefer the former. In this connection we would refer to the decision of the Bombay High Court in the case of Sri Kasturchand Ltd. vs. CIT report in 17 ITR 493 (Bom). In that case the High Court was interpreting the provisions of s. 23A of the 1922 Act as it stood at the relevant time. This phrase they were called upon to interpret, for our purpose, reads as follows :— "Where the ITO is satisfied that in respect of any previous year the profits and the gains distributed as dividends by any company……………are less than 60 per cent of the assessable income of the company." In this case no dividend at all was distributed by the company. So an argument was taken up that in order to attract t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. A Court must always avoid as far as possible giving an utterly absurd interpretation to a section drafted by the legislature unless a Court looking to the plain and grammatical language used has no other option except to give such a construction. But in this case I am satisfied that the legislature has not used such language as necessarily to drive the Court to so anomalous a conclusion. Therefore, in my opinion, the section has application, whether there is no distribution at all or whether there is distribution of less than 60 per cents of the assessable income." 8. We think, we should adopt the same principles in interpreting this section. We are, therefore, of opinion that the assessee would be entitled to the allowance ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
