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TMI Blog1984 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... as according to him the assessee was residing in his own property and as no expenditure had been actually incurred by him on payment of rent in respect of his residential accommodation. Dissatisfied with the order passed by the IAC (Appeals) the assessee appealed before the Commissioner (Appeals) and contended that in spite of the fact that he resided in his self-owned property and did not actually incur any expenditure by way of rent on it, he was entitled to deduction in accordance with the law laid down by the Hon'ble Punjab and Haryana High Court in the case of CIT v. Justice S.C. Mittal [1980] 121 ITR 503. He also relied upon the decision of the Hon'ble Supreme Court in Bhagwan Dass Jain v.Union ofIndia [1981] 128 ITR 315. The Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the order passed by the Commissioner (Appeals) and relied upon the decision of the Hon'ble Punjab and Haryana High Court in Justice S.C. Mittal's case and on a single member decision of the Tribunal, Delhi in IT Appeal No. 2455 (Delhi) of 1982 dated 29-9-1982. 5. We have carefully considered the submissions made on the two sides. We have also very carefully gone through the decision of the Hon'ble Punjab and Haryana High Court in the case of Justice S.C. Mittal and other decisions of the same Hon'ble High Court which were subsequently delivered in which the decision given in the case of Justice S.C. Mittal had been followed, We have also gone through the decision of the Hon'ble Supreme Court of India in Bhagwan Dass Jain's case which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely:--- Agra, Ahmedabad, Allahabad, Amritsar, Bangalore, Bhopal, Calcutta, Coimbatore, Delhi, Faridabad, Gwalior (Lashkar), Hyderabad, Indore, Jabalpur, Jaipur, Kanpur, Lucknow, Ludhiana City, Madurai, Nagpur, Patna, Poona, Srinagar, Surat, Vadodara (Baroda) or Varanasi (Banaras) or the urban agglomeration of each of such places ; (ii) where such accommodation is situate at Bombay, Calicut, Cochin, Ghaziabad, Hubli-Dharwar, Madras, Sholapur, Trivandrum or Vishakhapatnam, one-fifth of the amount of salary due to the assessee in respect of the relevant period ; and (iii) where such residential accommodation is situate at any other place, one-tenth of the amount of salary due to the assessee in respect of the relevant period ; or (d) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the hands of the recipient out of the allowance, thus, received and was not spent, to that extent the expenditure would not be incurred and the surplus remaining in the hands of grantee was, accordingly, held to be not exempt under the provisions of section 4(3)(vi) of the 1922 Act. In accordance with the law laid down by the Hon'ble Supreme Court in the aforementioned decision it appears to us that in order to be exempt within the provisions of section 10(13A) of the 1961 Act, the house rent allowance had to be actually incurred on payment of rent hired for residence. Since in the recent case no rent had been actually paid and since no accommodation had actually been hired for residence as the assessee was residing in his own house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case the assessee did not actually incur any expenditure by way of rent and since that was not necessary as he was residing in his own property, his case went out of the purview of exemption available in section 10(13A). 7. In the above view of matter we have not been able to follow the decision of the Punjab and Haryana High Court in Justice S.C. Mittal's case where their Lordships had held that the main object of enacting the provisions of section 10(13A)) is that in a case where an assessee actually suffers monetary loss by way of expenditure or otherwise he would be entitled to exemption under section 10(13A). With great difference to the aforesaid decision it appears to us that the provisions of section 10(13A) grant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Lordships held that the income from property would not be only that which an assessee derives by letting it out but would also embrace within itself an eventuality of saving by using the property as self-residence. According to us the law thus laid down by Hon'ble Supreme Court in fact, supports the view that we have taken. When an owner of a house property occupies it for its self-residence, it can be said that he is saving by using the property himself. But it could not mean that an assessee who is in receipt of house rent allowance but who does not incur any expenditure by way of rent as he resides in his own house is actually incurring any expenditure by way of rent. 9. In conclusion we would accept the view of the assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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