2011 (1) TMI 897 - HC - Income Tax

Annual Let Out value of the property - estimation of the actual rental value vacancy allowance - held that - The property has not been let out at all, during the previous year under consideration, there is no question of any vacancy allowance being provided thereto under section 23(1)(c). deceided against Assessee.

Issues Involved:
1. Determination of the annual let out value (ALV) of a property.
2. Applicability of section 23(1)(c) of the Income-tax Act, 1961.
3. Interpretation of "property is let" under section 23(1)(c).
4. Calculation of income from house property when the property is vacant.

Issue-wise Detailed Analysis:

1. Determination of the Annual Let Out Value (ALV) of a Property:
The appellant, a practicing advocate, declared an annual let out value (ALV) of nil for his property at Flat No. 101, Marigold Apartments, Dwarakapuri Colony, Hyderabad, for the assessment year 2002-03. The assessing authority, however, estimated the ALV at Rs. 1,44,000 based on section 23(1)(a) of the Income-tax Act, 1961. This estimation was upheld by the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal (ITAT), Hyderabad.

2. Applicability of Section 23(1)(c) of the Income-tax Act, 1961:
The appellant contended that under section 23(1)(c), the ALV should be nil since the property was not let out during the accounting year. The Tribunal clarified that section 23(1)(c) applies only when the property has been let out but remains vacant for a part of the year, resulting in actual rent received being less than the notional value. Since the property was not let out during the year, section 23(1)(c) was not applicable. The Tribunal emphasized that section 23(1)(a) should be used to determine the ALV for properties not let out during the year.

3. Interpretation of "Property is Let" Under Section 23(1)(c):
The Tribunal interpreted the phrase "property is let" to mean that the property must have been actually let out during the previous year to qualify for the benefits under section 23(1)(c). The Tribunal rejected the appellant's interpretation that an intention to let out the property suffices. The Tribunal held that a strict interpretation of the statute is required, and the words "property is let" cannot be read as "property is intended to be let."

4. Calculation of Income from House Property When the Property is Vacant:
The Tribunal noted that the income from house property is chargeable under section 22 of the Act based on the annual value of the property. Under section 23(1)(a), the ALV is the sum for which the property might reasonably be expected to be let from year to year. If the property is let out and the actual rent received is higher than the notional value, section 23(1)(b) applies. Section 23(1)(c) applies when the property is let out but remains vacant for a part of the year, resulting in actual rent being less than the notional value. The Tribunal concluded that in cases where the property was not let out at all during the year, section 23(1)(a) applies, and the notional value should be taken as the income from the property.

Conclusion:
The Tribunal upheld the order of the Commissioner of Income-tax (Appeals) and dismissed the appeal, affirming that the ALV of the property should be determined at Rs. 1,44,000 under section 23(1)(a) since the property was not let out during the year. The Tribunal's interpretation of section 23(1)(c) was that it does not apply to properties not actually let out during the previous year.

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