TMI Blog1987 (1) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... nthly rent of Rs. 30 per stack to the FCI. A copy of the lease deed is furnished by the departmental representative and it was pointed out that it is a proforma in which the lease agreement is entered and there is omission in the proforma to cut out the unnecessary word 'godown' occurring in several clauses. The clause I of the deed clearly states that the lessor, i.e., the assessee had agreed to let and the lessee, i.e., the FCI agreed to hire the kutcha plinths on monthly tenancy basis and clause II provides for payment of monthly rent of Rs. 30 per stack for kutcha plinths of Unit No. II as described in the attached schedule. It is not disputed by the assessee's counsel, Shri Subash Khanna, that the subject-matter of letting out were the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see that the income disclosed was taxable under the head 'Income from house property'. It was further pointed out that the assessment for the year 1983-84 was made earlier than the assessment for the assessment year 1982-83 made by order dated 12-12-1984. On behalf of the revenue, it was submitted that the view taken in other assessments was erroneous and the view taken for the assessment year under appeal is correct and that there was no res judicata or estoppel applicable in income-tax proceedings. It was further submitted that an erroneous view in law could not be allowed to be perpetuated on the ground of consistency and the issue deserves to be gone into on merits. We have considered the submissions made and looked into the lease deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee-HUF would render the whole open land near the house to be land appurtenant to that house and its income was, therefore, rightly taxable under section 22. 5. The case of the revenue, on the other hand, was that the piece of open land of 18 acres could not be said to be land appurtenant to the residential house and this was open land belonging to the assessee out of which a piece of 2 1/2 acres was let out to the FCI having kutcha stacks on it. A copy of assessee's letter addressed to the ITO in the course of assessment proceedings of 1982-83 was also filed to show that the land let out to the FCI with the kutcha plinths was provided with barbed wire fencing and thus it had ceased to be land appurtenant to the house of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, or other educational establishment, includes all land occupied therewith and used for the purpose thereof ; General Rate Act, 1967, section 19." 7. Again in K.J. Aiyer's Judicial Dictionary, Eighth edn. 1980 at page 99, the word 'appendant' is considered to mean 'where a right of property of an accessory kind is attached to another so as to be enjoyed with it, it is described as appendant or appurtenant'. 8. Venkataramaiya's Law Lexicon with Legal Maxims, Second edn., Vol. I at pages 183-184 deals with the words 'appendant' and 'appendant and appurtenant' in the following way : "Appendant--This word, in its general sense, denotes anything annexed in whatever manner to any other. But as applied to incorporeal hereditaments in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the land is necessary or connected with the enjoyment of the house and as pointed out in the definition of 'appendant' given in Venkataramaiya's Law Lexicon with Legal Marims that once the land is disannexed from the main property, it can never become appendant or appurtenant again. Bearing in mind these principles, it is obvious that 18 acres of open land cannot per se be considered to be appurtenant to a house claimed to be situated on about half acre of land. The land let out to the FCI is stated to be 2 1/2 acres. The whole piece of land of 18 acres cannot be said to be necessary in any way for the enjoyment of the house. Again it has been admitted by the assessee in a letter addressed to the ITO in the course of assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
