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1997 DIGILAW 2 (MAD)

Deepak L. Banker v. Commissioner of Income Tax

1997-01-02

ABDUL HADI, N.V.BALASUBRAMANIAN

body1997
Judgment :- N. V. BALASUBRAMANIAN, J. The Tribunal, at the instance of the assessee, has referred the following question of law for the opinion of this Court under s. 256(1) of the IT Act, 1961. "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the relief under s. 23(3) of the IT Act was available only to an 'Individual' and that the assessee assessed as a HUF was not entitled to claim the same ?" * 2. The assessee is assessed in the status of HUF. The assessee claimed relief in terms of s. 23(3) of the IT Act in regard to income from the house property known as "Capril", Venamamandir Road, Bombay for the asst. yr. 1977-78. The ITO rejected the claim of the assessee on the ground that relief under s. 23(3) , of the Act is available only to an 'individual' and not to an HUF. 3. The assessee preferred an appeal to the AAC and the Asstt. CIT following the earlier order of the Tribunal in ITA Nos. 2744 & 2745/Mad/77-78 dt. 27th June, 1978 accepted the claim of the assessee and allowed the appeal preferred by the assessee. 4. The Revenue preferred an appeal before the Tribunal and contended that the relief in terms of s. 23(3) of the Act is available only to an 'individual' and not to an HUF. The assessee strongly placed reliance on the earlier order of the Tribunal and contended that earlier order should be followed and the assessee's claim should be accepted. The Tribunal, however, placed reliance on the decision in CIT vs. Mohd. Amin Tyamboo 1980 14 CTR (J&K) 190 : 1980 (125) ITR 375 (J&K) : TC 40R.532, and held that there is no estoppel or res judicata in income-tax assessments, and the assessment for each year is concerned only with the determination of the income and tax payable by the assessee for that particular year. Following the decision of the Jammu & Kashmir High Court, the Tribunal held that relief under s. 23(3) of the Act is available only to an 'Individual' and not an HUF. Aggrieved by the order of the Tribunal, the assessee has sought for the reference and the Tribunal has stated the case. 5. Mr. Following the decision of the Jammu & Kashmir High Court, the Tribunal held that relief under s. 23(3) of the Act is available only to an 'Individual' and not an HUF. Aggrieved by the order of the Tribunal, the assessee has sought for the reference and the Tribunal has stated the case. 5. Mr. J. Janakiraman, learned counsel appearing for the assessee submitted that relief under s. 23(3) of the Act is available to the HUF. He submitted that the expression found in s. 23(3) would include a Hindu family as well and where an HUF was not able to occupy the residential house because of the business carried out in some other place, the HUF would be entitled to s. 23(3) of the Act. However, we find that the question is no longer res integra. This Court in CIT vs. K. Gangiah Chetty & Sons 1995 (214) ITR 548, 1995 (129) CTR 340, 1996 (86) TAXMAN 104 , 1995 (129) CTR(Mad) 340 (Mad) : TC 40R.533, considered the question wherein the deduction in s. 23(2) of the Act is allowable to a firm owning the house property. This Court following the decision of the Delhi High Court in the case of CIT vs. Dewan Chand Dholan Dass 1981 (132) ITR 790 , 1981 (25) CTR 238, 1982 (9) TAXMAN 172, 1981 (25) CTR(Del) 238 (Del) : TC 40R.536 and the decision of the Kerala High Court in the case of K. I. Viswambharan & Bros. vs. CIT 1973 (91) ITR 588 (Ker)(FB) : TC 20R.1122, held that the assessee must be a human being and not a firm to get the relief under s. 23(2) of the IT Act. This Court in CIT vs. G. K. Devarajulu 1991 (191) ITR 211, 1991 (92) CTR 184, 1991 (56) TAXMAN 85 , 1991 (92) CTR(Mad) 184 (Mad) : TC 22R.276, while considering s. 54B of the IT Act held that in order to claim the benefit of the 54B(ii) of the Act, 1961, the capital asset should have been used by the assessee and the deduction under s. 54B of the Income-tax Act is available only in the case of an 'individual' and the HUF cannot claim under s. 54B of the Act. Jammu & Kashmir High Court in CIT vs. Mohd. Jammu & Kashmir High Court in CIT vs. Mohd. Amin Tyamboo (supra) and the Delhi High Court in the case of CIT vs. Dewan Chand Dholan Das (supra) considering the provision of s. 23(3) of the Act held that the relief under s. 23(3) of the Act is available only to a human being and not to a firm or a company. Following the said decisions, we are of the opinion that there is no infirmity in the view taken by the Tribunal that relief under s. 23(3) of the Act is available only to an 'individual' and not to an HUF. The view of the Tribunal is supported in several decisions of this Court as well as Jammu & Kashmir High Court and the Delhi High Court as well. In this view of the matter, we answer the question referred to us in the affirmative and against the assessee. No costs.