TMI Blog1991 (4) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, the provision of accommodation to Mr. Swami in the building known as 'Chitra Koot Co-operative Housing Society Ltd., Bombay' is tantamount to a 'perquisite' as defined in Explanation 2(b) to section 40A(5) of the Income-tax Act, 1961 ? 2. If the answer to question No. 1 is in the affirmative, whether, in working out the disallowance under section 40A(5) of the Income-tax Act, 1961, the value of the said perquisite should be taken at the notional market rent of the flat as well as the full depreciation in respect thereof ? 3. Whether, on the facts and in the circumstances of the case, the house rent allowance to the employee, Mr. S. C. Malhotra, the conveyance allowance to Mr. S. C. Malhotra and Mr. Ashok Malhotra and the reim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage of the section is clear as to its content. It only means that if, factually, the assessee has incurred any expenditure, say, in this case, by way of taxes, maintenance of the flat, society charges, etc., that amount would constitute a part of the perquisite. Similarly, if the assessee is allowed depreciation in respect of the flat, the amount allowed as depreciation would constitute the value of the perquisite in the hands of the assessee, subject only to the fact that the employee in this case having occupied the flat for 5 months only, i.e., from August, 1972, to December, 1972, only 5/12ths of the depreciation actually allowed will have to be considered as the value of the perquisite. Dr. Balasubramanian has, on the other hand, pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards the third question, counsel are agreed that, in view of our court's judgment in the case of CIT v. Indokem Pvt. Ltd. [1981] 132 ITR 125, the question will have to be answered in the negative and in favour of the assessee. The question is so answered. This takes us to the only question referred to us at the instance of the Revenue. Here again, counsel are agreed that the issue involved in the question is covered by the Supreme Court's decision in the case of Vazir Sultan Tobacco Co. Ltd. v. CIT [1981] 132 ITR 559. It was, however, pointed out by Dr. Balasubramanian that the facts in this case are somewhat different from the facts in the Supreme Court's case [1981] 132 ITR 559. The facts herein, he stated, are identical with the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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