Tribunal grants exemption for flat in Bombay to father, dismissing benefit claim.

DEEPAK L. BANKER. Versus INCOME TAX OFFICER.

DEEPAK L. BANKER. Versus INCOME TAX OFFICER. - TTJ 006, 1145, Issues:
1. Entitlement to exemption u/s. 23(3)(a) for the assessee regarding a flat in Bombay occupied by his father.
2. Applicability of s. 23(2) and s. 23(3)(a) for determining the exemption eligibility.
3. Interpretation of "actual occupation" under s. 23(3)(a) in contrast to s. 23(2) regarding the owner's residence.

Detailed Analysis:
1. The judgment concerns two appeals by the assessee for the assessment years 1973-74 and 1974-75, focusing on the entitlement to exemption u/s. 23(3)(a) regarding a flat in Bombay occupied by the assessee's father. The Income Tax Officer (ITO) calculated the net income at Rs. 20,605 after considering the annual letting value and deductions.
2. Before the Appellate Assistant Commissioner (AAC), the assessee argued for the applicability of either s. 23(2) or s. 23(3)(a). The AAC ruled out s. 23(2) as the property was not under the assessee's occupation. Additionally, the AAC denied exemption under s. 23(3)(a) stating that the assessee benefited from his father's use of the flat.
3. The assessee appealed to the Tribunal, contending that s. 23(2) should apply as the occupation by the assessee includes his family's stay. Alternatively, the assessee argued for exemption under s. 23(3)(a) as there was no monetary benefit derived from the father's use. The Departmental Representative supported the AAC's decision, emphasizing the evaluation of the father's use of the flat.
4. The Tribunal analyzed s. 23(2) and s. 23(3)(a), emphasizing that the property must be in the owner's occupation for the purpose of own residence under s. 23(2). The Tribunal clarified that the father's use did not negate the assessee's occupation and that the flat remained under the assessee's ownership. It differentiated between occupation and actual residence, concluding that the assessee's case falls under s. 23(2)(i).
5. Regarding s. 23(3)(a), the Tribunal highlighted the requirement of "actual occupation" by the owner and the absence of any benefit derived. It distinguished between the owner's occupation and others' occupation, noting that the parents' use equated to the owner's occupation. Consequently, the Tribunal found s. 23(3)(a) inapplicable but upheld the applicability of s. 23(2)(i) to the assessee.
6. Ultimately, the Tribunal partially allowed the appeals, affirming the assessee's entitlement to exemption under s. 23(2)(i) while dismissing the claim under s. 23(3)(a) due to the father's use not constituting a benefit.