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TMI Blog1982 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... houses herself or to let them out and collect any rents from the tenants, since those houses were meant either for the residence or for the business of the testator's sons. It was clearly provided in the will that the assessee, Gnanambal Ammal, could occupy the houses herself or otherwise derive income from the houses by letting them out only in case the sons, who were in occupation, voluntarily decided to vacate those houses. The ITO assessed the annual letting out value of these houses as part of the income of Gnanambal Ammal, even for the period during which the houses were in the occupation of the testator's sons. The correctness of this assessment was questioned in appeal; but the appellate authorities, including the Tribunal, upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court on the subject in T.Cs. Nos. 679 to 681 of 1975 and 60 of 1976, we must hold that the assessment for this year is also made on wrong understanding of the decision both legally and factually. Learned standing counsel for the Department submitted that the judgment of this court in the earlier references of this assessee contained observations which, according to him, went farther than what might be necessary for the disposal of the case. He particularly referred to the discussion in the previous case in which this court was inclined to feel that the assessee, Gnanambal Ammal, was not an owner at all of the houses in question for the period during which the testator's sons were in occupation in terms of the provisions of the will. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, there can hardly be any room for doubt or further debate. Learned standing counsel for the Department, however, urged that whatever may be the basis of taxation under other heads of income provided for under the I.T. Act, so far as income under the head " Property " is concerned, it hinges upon one attribute alone, namely, the attribute of the assessee being the owner of the house properties. Learned counsel, therefore, submitted that if it is accepted in any given case that a person is the owner of house properties and the house properties have got annual letting value, then the assessment of the income from those properties can hardly be resisted and it would be no answer to say that the houses in question are not occupied either by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me from house property under owner's occupation. Several provisions relating to deductions, exemptions and the like differ according as to whether the property in question is owner-occupied or tenant occupied. In both cases, however, it is necessary that the assessee must be the owner; but that is not the last word on the subject of charge. The charge depends upon the house being either under the owner's occupation or under the tenant's occupation. Under this dichotomous taxation scheme, there really is no scope for a third course. This precisely is the position of the assessee in the present case. All these considerations which very much arise in the present discussion were apparently not touched in the judgment of this court in this ver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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