9911796707
TMI Blog1989 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... the financial year ending31st March, 1982Return was filed on29th July, 1982, showing income of Rs. 21,400. The same was subsequently revised on26th Dec., 1983and the income declared then was of Rs. 1,630. The learned ITO included a sum of Rs. 24,000 on account of income derived from subletting of premises as income from other sources, with the following observation; The reason for revising the return has been stated that the income from sub letting of property is not taxable. It is the contention of the assessee that income from subletting the property is not taxable either under the head income from other sources or under the head income from house property which has been subletted by him. The contention of the assessee does not have any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CIT (1957) 32 ITR 688 (SC) was also cited. The learned CIT(A) after discussing in detail the submissions and the case laws allowed the assessee's appeal in the following manner; "I have carefully considered the submissions of the appellant and the above lengthy legal discussion and I am inclined to agree that though amount of Rs. 24,000 is on the face of it property income yet since the assessee is not the owner of the property, such income cannot be assessed under the head other source also, because that is obviously property income by sub-letting cannot be brought into assessment under the head other sources . For this conclusion I have relied on the rulings of the two Supreme court decisions and the Bombay High court as rightly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 628, 631 and 725 of 3rd edition of Vol. 1 in Chaturvedi and Pithisaris. Mention was also made on page 941 of 7th edition of Vol. 1 by Sampath Iyenger. According to Shri Bhatnagar the rent received being income from property could not be assessed in the hands of the assessee as he was merely a tenant and could not be assessed under the head other sources since it was property income. According to Shri Bhatnagar there was no provision in the IT Act to cover the type of situation existing in the present case and thus according to him, the order under challenge was required to be confirmed. 7. Rival submissions have been heard and considered. The facts relevant for controversy have already been incorporated in the preceding paragraphs and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee rental income from subletting of portion belonging to some other owner, for the asst. years. 1960-61 and 1961-62, could not form part of assessee s assessable income under the residuary head of income and that the rental income was not chargeable under S. 56 of the IT Act, 1961, for the asst. years 1962-63 and 1963-64. The ratio in fact was that the when there was a specific head the rental income could not be charged under the residuary head, i.e. from other sources. On behalf of the assessee mention was made on page 941 of Sampath Iyengar s Law of Income tax, 7th edition of 1st Volume. According to that when there is a specific head there was no option available to the learned assessing officer to choose the other head. There appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act would appear to be misplaced. The receipt is there and the same could not be assessed under the head income from property in view of the provisions of the above section. Thereafter the other provision existing in the Act is under s. 56 of the Act. i.e., under, the head under the head income from other sources. This is what exactly done by the learned ITO which did not find favour with the learned first appellate authority. In our view, approach of the learned AAC was diametrically opposed to the ratio in the case of SUSHIL ANSAL (1986) 160 ITR 308 (Del) wherein (1966) 61 ITR 428 (SC) has been noted and 1982 133 ITR 840 (Bom) dissented. Thus the principal reliance of the assessee on (1982) 133 ITR 840 (Bom) is seen now as not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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