9911796707
TMI Blog2012 (6) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... e. A Hindu undi- vided family is nothing but a group of individuals related to each other by blood relations, or in a certain manner. A Hindu undivided family can be seen being a family 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. HUF is entitled for benefit of Section 23(2) in respect of self occupied property. - 174 of 1995 - - - Dated:- 2-8-2011 - MUKHOPADHAYA S. J., AKIL KURESHI, HARSHA DEVANI MS. JJ. JUDGMENT S. J. Mukhopadhaya C. J.- 1. In the reference under section 256(1) of the Income-tax Act, 1961, at the instance of the Commissioner of Income-tax, the Income-tax Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als), the benefits envisaged by section 23(2) were available only to an individual and not to Hindu undivided family. For this proposition, the Commissioner of Income-tax (Appeals) relied upon 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). However, in further appeal, the Income-tax Appellate Tribunal relied upon the decision of the Income-tax Appellate Tribunal, Delhi Bench (SMC), in the case of ITO v. Tarlock Singh and Sons reported in [1989] 29 ITD 139 (Delhi) and held that the benefit given under section 23(2) would be available to the Hindu undivided family. A copy of the assessment order, which is annexure A, order of the Commissioner of Income-tax (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e : Explanation.-The deduction under this sub-clause shall be made irrespective of whether the period during which the property or, as the case may be, part of the property was used for the residence of the owner precedes or follows the period during which it is let ;" 6. The said section has undergone amendment by the Finance Act, 2001, which now reads as under : "23. Annual value how determined.-. . . (2) Where the property consists of a house or part of a house which- (a) is in the occupation of the owner for the purposes of his own residence ; or (b) cannot actually be occupied by the owner by reason of the fact that owing to his employment, business or profession carried on at any other place, he has to reside at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961, refers only to a human owner and not a fictional entity. A firm cannot physically reside and so cannot claim the benefit of the provision which is available to an assessable entity only. It is difficult to contemplate residence by some of the partners or even all of them as self-residence by the owner-firm in the context of section 23(2), the dichotomy between the firm and its partners, who are independent assessable entities for the purposes of the Income-tax Act, should be given effect to. The nature of the relief under section 23(2) is such that it is not available in the case of a firm just as it is not available in the case of a company. 10. The Madras High Court, while dealing with section 23(2) in the case of CIT v. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 23(2) observed that the Hindu undivided family is nothing but a group of individuals related to each other and thereby entitled for the benefit of section 23(2). 14. From the decisions, as referred to above, and the provisions of law, the following facts emerge : (i) the benefit of section 23(2) is available if the house is in occupation of the owner for the purpose of his own residence ; and (ii) a partnership firm, which is a fictional entity, cannot physically reside and so a partnership firm cannot claim the benefit of the provision, which is available to an assessable entity only. 15. The question arises as to, whether a Hindu undivided family can be held to be a fictional entity ? The answer will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
