TaxTMI 
TaxTMI 
2003 (9) TMI 299
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....h,New Delhiwhich was owned by his parents. He was living with his parents in that premises. He purchased a house on30th March, 1990in Swasthya Vihar (East Delhi). In assessment year 1991-92, some alterations and rectifications were made to that house and could not be occupied. In the year under consideration, the said house remained unoccupied and no rental value was declared in respect of such house in view of the provisions of section 23(3). The contention of the assessee was that he could not occupy such house due to carrying on of the profession at a distant place. The Assessing Officer did not agree with assessee's contention since non-occupation due to personal inconvenience would not entitle to relief under section 23(3) as per the j....
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....ns of sub-sections (2) and (3) of section 23. To appreciate the controversy, it would be appropriate to reproduce the relevant portions of the above provisions as under: "Section 23(2) Where the property consists of-- (a) a house or a 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) (b) more than one house in occupation of the owner for the purposes of his own residence, the provisions of clause (a) shall apply only in respect of one of such houses, which the assessee may at his option....
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....on by him at other place. The opening words of sub-section (3) of section 23 makes it clear beyond doubt that this sub-section would apply only to the house which is referred to in sub-section (2). Sub-section (2)(a) refers to house which is under occupation of the owner for the purpose of his own residence. Clauses (b) and (c) of sub-section (2) also speaks of house in occupation of owner for his own residence. Therefore, in our considered opinion, the provisions of sub-section (3) can be invoked only when the house, in respect of which relief under section 23(3) is sought, was in occupation of the assessee owner. Further, the expression "and it cannot be actually occupied by the owner" in sub-section (3) also suggests that such house must....
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....were not applicable to the present cases. 6. We have also gone through the earlier decision of ITAT in assessee's own case for assessment year 1991-92, copy of which is placed on the file. The perusal of the same shows that the decision was given in favour of the assessee on different ground i.e., the property was not fit for occupation. There was no finding regarding applicability of section 23(3). Therefore, that decision is distinguishable on facts. The judgment of Hon'ble High Court in the case of Justice Avadh Behari relied on by the assessee as well as CIT(A) is also distinguishable on facts. In that case, the assessee had to shift from his old residence at 419,Esplanade Road,Delhito 6,Zakir Hussain Road,New Delhidue to elevation t....