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TMI Blog1982 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by the assessee for his residential purpose. The ITO estimated the annual value of this property at Rs. 10,000 per month and brought the same to tax as a business perquisite under section 28(iv) of the Income-tax Act, 1961 ('the Act'). The AAC confirmed the inclusion. In second appeal, it is contended on behalf of the assessee that the assessee is only a partner of the firm and, hence, there is no scope for application of section 28(iv) in the assessee's case. Alternatively, it was contended that the income from the same property has been included by the ITO at an annual value of Rs. 5,000 in the firm's assessment and that the same income cannot obviously be considered in the assessee's hands. The estimate of annual value at Rs. 12,000 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partner of the firm. The only further question is whether such benefit could be taken to be 'arising from a business or the exercise of a profession'. Since the business is carried on in partnership, it is the contention on behalf of the assessee that it cannot be stated to be arising from the assessee's business. We find it difficult to accept the assessee's argument as the share income from the business of the firm is assessed as business income under section 67(3). Though for income-tax purposes a firm is a distinct and separate entity from the persons who compose it, it cannot be stated that the partner is not carrying on the business but the firm only. The Supreme Court in CIT v. Ramniklal Kothari [1969] 74 ITR 57 had held even with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partner occupies the house in view of the fact that he is a partner in the firm and such partnership is for business, we have to hold that it arises to the assessee from business. As for the argument that there has been double taxation because the property income has been assessed in firm's hands, we are not in a position to hold that the assessee is not assessable merely on this ground. If the income is includible in assessee's hands by statutory provisions, it will have to be so included notwithstanding the fact that it might have been included elsewhere rightly or wrongly. However, we do notice that in view of section 67(2), the share income from property will have to be assessed as separate property income though the ITO had failed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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