1982 (8) TMI 40

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..... the meaning of s. 23(1) of the Income-tax Act, 1961, and the same was not of the character of income in the hands of the assessee ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal should have held that, in any case, the net excess collection of occupiers' share of the property tax from the tenants in excess of what was made over to the Municipal Corporation was liable to be assessed in the hands of the assessee ? " The facts and circumstances have been set out in the statement of facts and the Tribunal in its order after considering the rival submissions observed as follows : "We have given due consideration to their rival submissions and we are unable to agree with the contentions advanced by the learned depa .....

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..... der the terms of the lease the occupiers share of tax which the tenant undertook to pay to the Municipal Corporation under cl. 2(c) was something separate and distinct from the rent and the service charges which the tenant undertook to pay to the owner under cl. 2(b) and cl. 2(c) respectively. We do not find anything in s. 23(1) of the I.T. Act, 1961, to support the contention of the learned departmental representative that occupiers' share of the tax is a receipt of income character. It is true that a tenants liability not borne by the owner was not liable to be deducted under the proviso to s. 23(1) in computing the annual value of the property and that a sum determined as the annual-value of the property excluding the amount deductible .....

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..... may have to refund the same to the tenants from whom it was collected. But when that amount does not have the character of income in the hands of the assessee, it does not acquire such character merely because it has not been refunded to the respective tenants from whom it was collected. In this view of the matter, it is immaterial whether the whole of this sum of Rs. 42,683 or any part thereof represents excess collection of occupiers' share of tax. In any view of the matter, it is not liable to be treated as a receipt of revenue character. We, therefore, allow the assessee's claim and direct the exclusion of this sum of Rs. 42,683 from the assessee's total receipts." In view of the provision of law we are of the opinion that the Tribunal .....

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