indrajit Seth Vs. Income-tax Officer - Court Judgment

Excerpt:
1. the common effective ground raised in these appeals involving assessment years 1983-84 and 1984-85 read as under : that the learned cit (appeals) has erred in law and on the facts of the case id not accepting the contention of the appellant that the income from his l/3rd share in the house property at 21, golf links, new delhi, other than the portion let out, has to be taken at nil under the provisions of section 23(3) of the income-tax act, 1961 and that, therefore, he ought not to have upheld the inclusion of an income of rs. 5,605 in the total income of the appellant.2. the assessee is an individual earning income from salary, interest on securities, property, capital gains and other sources. along with his mother mrs. aruna seth and brother shri vikramjit seth the assessee owned a residential house at 21, golf links, new delhi. a portion of the said house was let out at a rent of rs. 4,500 p.m. out of the remaining portions the assessee's brother and mother occupied certain portions for their own residence. the assessee himself was in the employment with sgs india pvt. ltd. his employer company had allotted him a rent free accommodation at 3, western avenue, maharani bagh, new delhi.3. for the assessment year 1983-84 the assessee returned net rental income in respect of his share in the said property at rs. 13,432. such income was declared at rs. 13,410 for the assessment year 1984-85. in both the years the assessee had not declared any self-occupied property income on the ground that his l/3rd portion was neither let out nor did he derive any benefit therefrom during the years under consideration.the ito did not accept such contention of the assessee and assessed an income of rs. 5,605 in each of the two years from the assessee's l/3rd portion in the house property in question. in appeal the cit(a) confirmed the addition.4. it was vehemently urged by sri r. ganesan, c.a., the learned counsel for the assessee, that since the assessee's portion was neither let out nor any benefit therefrom was derived by the assessee due to his occupying a rent free accommodation at 3, western avenue, maharani bagh, new delhi, no self-occupied property income could have been assessed in his hands. the learned departmental representative, however, submitted that the words "at any other place" occurring in the language of sub-section (3) of section 23 of the income-tax act, 1961 ('the act') as it stood at the relevant time referred to a place other than a place where the assessee was in the employment or carried on his business or profession. in the instant case, urged the learned departmental representative, the house property in question as also the rent free accommodation occupied by the assessee are in connection with his employment with sgs(i) pvt. ltd. situate at delhi and, therefore, the assessee could not take the benefit of the proviso to sub-section (3) of section 23 of the act. in support of her arguments the learned departmental representative relied upon the madhya pradesh high court decision in the case of shikharchand jain v. cit [1983] 140 itr 552 where it was held that where the assessee, who owned a residential house, lived in the same town in a different house owned by his father for purposes of personal convenience and it was not shown that by living in his own house the assessee could not look after his business of manufacturing bidis, the assessee would not be entitled to the exemption under section 23(3) of the act.5. after having given our careful consideration to the arguments advanced before us by the learned counsels of the parties we are of the considered view that in the facts and circumstances of the case the assessee has rightly been assessed to income from self-occupied property. it goes undisputed that the assessee is co-owner in the property in question to the extent of l/3rd and that there has been no partition of the interest of the co-owners in the said property. the very concept of co-ownership suggests that possession of one co-owner in the joint property would be deemed to be in possession of all the co-owners. the basis of this concept is that a co-owner of the property may not lightly acquire any right to the joint property to the exclusion of the other co-owners by claiming adverse possession. the general principle, therefore, is that possession of one co-owner, until hostile to the other co-owners would be deemed as possession of all.the same principle would apply to the benefits drawn from the joint property. in that sense of the matter it cannot be claimed that by the possession of his brother and mother of a part of the property in question the assessee had not derived any benefit within the meaning of the term used in the language of the proviso under sub-section (3) of section 23 of the act. we, therefore, hold that condition no. (ii) as laid down in the proviso to section 23(3) was not fulfilled in this case. we hold that the assessee had also derived benefit from the property in question and, therefore, he was liable to be assessed for income from self-occupied property under section 23 of the act.5a. the decision of the madhya pradesh high court in the case of shikharchand jain {supra) supports the view point of the learned departmental representative. there is no view on the point before us contrary to that of the madhya pradesh high court as mentioned above.on the basis of the said decision we hold that since the assessee was residing in the same town, i.e., delhi for purposes of his employment and it was not shown to us that by living in his own house the assessee could not look after his employment, we hold that the assessee was not entitled to the exemption under section 23(3) of the act. we thus find that the orders under appeal are sustaintable in law.

Judgment:
1. The common effective ground raised in these appeals involving assessment years 1983-84 and 1984-85 read as under : That the learned CIT (Appeals) has erred in law and on the facts of the case id not accepting the contention of the appellant that the income from his l/3rd share in the house property at 21, Golf Links, New Delhi, other than the portion let out, has to be taken at nil under the provisions of Section 23(3) of the Income-tax Act, 1961 and that, therefore, he ought not to have upheld the inclusion of an income of Rs. 5,605 in the total income of the appellant.

2. The assessee is an individual earning income from salary, interest on securities, property, capital gains and other sources. Along with his mother Mrs. Aruna Seth and brother Shri Vikramjit Seth the assessee owned a residential house at 21, Golf Links, New Delhi. A portion of the said house was let out at a rent of Rs. 4,500 p.m. Out of the remaining portions the assessee's brother and mother occupied certain portions for their own residence. The assessee himself was in the employment with SGS India Pvt. Ltd. His employer company had allotted him a rent free accommodation at 3, Western Avenue, Maharani Bagh, New Delhi.

3. For the assessment year 1983-84 the assessee returned net rental income in respect of his share in the said property at Rs. 13,432. Such income was declared at Rs. 13,410 for the assessment year 1984-85. In both the years the assessee had not declared any self-occupied property income on the ground that his l/3rd portion was neither let out nor did he derive any benefit therefrom during the years under consideration.

The ITO did not accept such contention of the assessee and assessed an income of Rs. 5,605 in each of the two years from the assessee's l/3rd portion in the house property in question. In appeal the CIT(A) confirmed the addition.

4. It was vehemently urged by Sri R. Ganesan, C.A., the learned counsel for the assessee, that since the assessee's portion was neither let out nor any benefit therefrom was derived by the assessee due to his occupying a rent free accommodation at 3, Western Avenue, Maharani Bagh, New Delhi, no self-occupied property income could have been assessed in his hands. The learned departmental representative, however, submitted that the words "at any other place" occurring in the language of Sub-section (3) of Section 23 of the Income-tax Act, 1961 ('the Act') as it stood at the relevant time referred to a place other than a place where the assessee was in the employment or carried on his business or profession. In the instant case, urged the learned departmental representative, the house property in question as also the rent free accommodation occupied by the assessee are in connection with his employment with SGS(I) Pvt. Ltd. situate at Delhi and, therefore, the assessee could not take the benefit of the proviso to Sub-section (3) of Section 23 of the Act. In support of her arguments the learned departmental representative relied upon the Madhya Pradesh High Court decision in the case of Shikharchand Jain v. CIT [1983] 140 ITR 552 where it was held that where the assessee, who owned a residential house, lived in the same town in a different house owned by his father for purposes of personal convenience and it was not shown that by living in his own house the assessee could not look after his business of manufacturing bidis, the assessee would not be entitled to the exemption under Section 23(3) of the Act.

5. After having given our careful consideration to the arguments advanced before us by the learned counsels of the parties we are of the considered view that in the facts and circumstances of the case the assessee has rightly been assessed to income from self-occupied property. It goes undisputed that the assessee is co-owner in the property in question to the extent of l/3rd and that there has been no partition of the interest of the co-owners in the said property. The very concept of co-ownership suggests that possession of one co-owner in the joint property would be deemed to be in possession of all the co-owners. The basis of this concept is that a co-owner of the property may not lightly acquire any right to the joint property to the exclusion of the other co-owners by claiming adverse possession. The general principle, therefore, is that possession of one co-owner, until hostile to the other co-owners would be deemed as possession of all.

The same principle would apply to the benefits drawn from the joint property. In that sense of the matter it cannot be claimed that by the possession of his brother and mother of a part of the property in question the assessee had not derived any benefit within the meaning of the term used in the language of the proviso under Sub-section (3) of Section 23 of the Act. We, therefore, hold that condition No. (ii) as laid down in the proviso to Section 23(3) was not fulfilled in this case. We hold that the assessee had also derived benefit from the property in question and, therefore, he was liable to be assessed for income from self-occupied property under Section 23 of the Act.

5A. The decision of the Madhya Pradesh High Court in the case of Shikharchand Jain {supra) supports the view point of the learned departmental representative. There is no view on the point before us contrary to that of the Madhya Pradesh High Court as mentioned above.

On the basis of the said decision we hold that since the assessee was residing in the same town, i.e., Delhi for purposes of his employment and it was not shown to us that by living in his own house the assessee could not look after his employment, we hold that the assessee was not entitled to the exemption under Section 23(3) of the Act. We thus find that the orders under appeal are sustaintable in law.