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TMI Blog1985 (4) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... other during the relevant accounting period. The assessee could, therefore, have claimed total exemption under s. 23 (3) with regard to the assessee's share of the annual value of the first floor. But the assessee returned Rs. 583 as the assessee's share in the notional income of the first floor. He did not return any notional income from the ground floor as the same had not been let out during the accounting period. 3. The original assessment was completed on 20th Feb., 1980 wherein the income returned by the assessee for the first floor, hereinafter referred to as the self-occupied portion, was accepted. No income was included as regards the ground floor. This assessment was reopened under s. 147 on the ground that the ground floor did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dential portion as the assessee had not actually occupied the same by reason of the fact of his employment in Kerala. This claim is based on s. 23 (3). The correctness of the claim was not disputed by the ld. Departmental Representative. But it was pointed out by him that in the original assessment the income for this portion was assessed to tax on the basis of the return filed by the assessee, that the reopening of the assessment was only to bring to tax the escaped income with regard to the ground floor and that in the reassessment the assessee cannot take up matters, which are concluded by the original assessment. In support of this contention the Department relied upon the decision of the Kerala High Court in CWT vs. C. Ravindran Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was being let out and that portion had remained vacant throughout the accounting period, the decision of the Supreme Court will not apply and that the assessee is, therefore entitled to claim vacancy allowance under s. 24 (1) (ix). In support of the position, the ld. counsel relied upon a decision of this Bench of the Tribunal dt. 11th April, 1978 in I. T. A. No. 200 (Coch)/77-78. In this case, it was held by the Tribunal that s. 24 (1) (ix) applies only to (a) where the property was vacant during a part of the year and (b) where the property was let out in parts where a part is vacant and that as far as the latter category of cases are concerned, s. 24 (1) (ix) does not refer to a part being vacant for a part of the year that it refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in Mahamudabad Properties held that s. 24 (1) (ix) will not apply if the property had not been let out during the relevant accounting period. But it was pointed out by the High Court there may be many house properties in one building where the building is divided horizontally or vertically by parts which are independent units and let out or intended to be let out as separate house properties, that in the case of a building having several floors or where several houses are attached to each other, each floor or house could be considered as an independent unit or a house property forming part of the whole building, that in a city where tall buildings having many floors or houses inseparably built from each other are common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipality separately for the two floors. The annual value for the self-occupied portion was determined at Rs. 3,240 while the annual value for the let out portion was determined at Rs. 10,300. This shows that the two portions were being assessed by the municipality separately. We made an offer to the ld. counsel for the assessee to restore the matter to the ITO in case the assessee wanted to furnish further materials for deciding the issue. It was submitted by the ld. counsel that it was not necessary to do so as this assessment year is concerned as the annual value included in the assessment is only Rs. 3,740 and as it is not necessary to prolong the present assessment proceedings. We would make it clear that it would be open for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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