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TMI Blog2012 (6) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter was taken up by a Division Bench of this court, the said Bench, while noticed the decision of the Jammu and Kashmir High Court in the case of CIT v. Mohd. Amin Tyamboo reported in [1980] 125 ITR 375 (J&K), the Madras High Court judgment in the case of CIT v. K.Gangiah Chetty and Sons reported in [1995] 214 ITR 548 (Mad) and the Delhi High Court judgment in the case of CIT v. Dewan Chand Dholan Dass reported in [1981] 132 ITR 790 (Delhi), held that those decisions may go counter to the decision of a Division Bench of this court in CWT v. Ashok Raje Gaekwad reported in [2004] 267 ITR 54 (Guj), though the said case related to section 7(4) of the Wealth-tax Act and was of the opinion that the matter deserves to be heard by a Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other High Courts, as discussed hereunder. 5. The relevant provision of section 23(2) of the Income-tax Act, 1961, as was held at the relevant time, reads as follows : "23. Annual value how determined.- . . . (2) Where the property consists of- (a) a house or part of a house in the occupation of the owner for the purposes of his own residence,- (i) which is not actually let during any part of the previous year and no other benefit therefrom is derived by the owner, the annual value of such house or part of the house shall be taken to be nil ; (ii) which is let during any part or parts of the previous year, that part of the annual value (annual value being determined in the same manner as if the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty is available only to the owner who can reside in his own residence, that means, the benefit of relief is available to self-occupied property only to an individual assessee and not to an imaginary assessable entity. 8. The case of CIT v. Mohd. Amin Tyamboo reported in [1980] 125 ITR 375 (J&K) related to benefit sought for by a "partnership firm". Having noticed section 23(2) of the Income-tax Act, the Division Bench of the Jammu and Kashmir High Court observed as follows (page 378) : "A slight consideration of these provisions makes it clear that the benefits of the relief in respect of self-occupied property is available only to an individual assessee. No other assessable entity can claim this benefit. The reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to allowance under section 23(2) and exemption under section 54 of the Income-tax Act. The house property must be in actual use by assessee or his parents. Thus, the assessee must be an individual asses- see. 11. Under sub-section (4) of section 7 of the Wealth-tax Act, 1957, a similar benefit is intended in respect of the house belonging to the assessee and exclusively used by him for residential purposes. Sub-section (4) of section 7 of the Wealth-tax Act, 1957, is almost same to that of section 23(2) of the Income-tax Act. 12. Sub-section (4) of section 7 of the Wealth-tax Act, 1957, fell for con- sideration before a Division Bench of this court in the case of CWT v. Ashok Raje Gaekwad reported in [2004] 267 ITR 54 (G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily of a group of natural persons. There is no dispute that the said family can reside in the house, which belongs to the Hindu undi- vided family. A family cannot consist of artificial persons. The Income-tax Appellate Tribunal, Delhi Bench, in the case of Tarlock Singh [1989] 29 ITD 139 (Delhi) noticed that under section 13 of the General Clauses Act, while the words in masculine gender shall be taken to include females and the words in singular shall include plural and vice versa. Therefore, it rightly held that the word "owner" would include "owners" and the words "his own" would include "their own". There is nothing, therefore, in the words used in section 23(2), which excludes application of such provision to the Hindu undivided fami ..... X X X X Extracts X X X X X X X X Extracts X X X X
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