TaxTMI 
TaxTMI 
1982 (3) TMI 93
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....airs to be carried out by them, respectively. BALMER LAWRIE & CO. LTD. "(f) To carry out repairs of the nature of maintenance such as white washing and oil painting, etc., as and when the lessee desires and thinks fit provided however that the lessor shall be responsible for all major or structural repairs to the demised premises." WESTERN ELECTRONICS LTD. "(f) To carry out repairs of the nature of maintenance such as white washing and oil painting, etc., as and when the lessee desired and thinks fit provided however that the lessor shall be responsible for all major or structural repairs to the demised premises." 4. In order to better appreciate the rival contentions of the parties, we tabulate below the computation as per the assessee and as per the ITO : Per assessee Per ....
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....bsp; --------- 60,204 60,204 Less: Municipal Taxes &....
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....; 45,315 54,378 Less : Ground rent 210 210 &nbs....
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....ssions, the learned counsel for the assessee relied on the following observations appearing at pages 1041-42 of Sampath Iyengar's Law of Income-tax, 7th edition : "Allowance where both owner anti tenant undertake to bear cost of repairs : The grant of deduction for repairs in respect of tenanted property is treated by the statute on the footing that : (i) either the owner has undertaken to bear the cost of the repairs, or (ii) the tenant has undertaken to bear such cost. The Act misses the situation where in respect of tenanted property both the owner and the tenant could undertake the cost of repairs. Clause (m) of section 108 of the Transfer of Property Act throws the obligation impliedly on the tenant to effect the repair in respect of the demised property. This is an obligation which can, of course, be contracted against, since the provisions of section 108 of the Transfer of Property Act regulating the rights and liabilities of the lessor and the lessee apply only 'in the absence of a contract to the contrary.' In the absence of such a contract, the tenant should be deemed to have undertaken the burden of the cost of the repairs. Concurrently, clause (f) of section 108 of t....
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....oupled with clause (i)(b)." 7. The learned representative for the department, on the other hand, strongly relied on the orders of the income-tax authorities and justified their action. In this connection he further submitted that since both the assessee and the tenants had undertaken to carry on repairs of the house property in question, the assessee was not entitled to claim deduction under section 24(1)(i). As regards commentary of Shri Sampath Iyengar, the learned representative for the department submitted that since it was a mere opinion of the author, the same was not binding on us. 8. We have carefully considered the rival submissions of the parties and we do not find any merit in the submissions made on behalf of the assessee. The relevant portion of section 24(1) reads as under: "24(1) Income chargeable under the head 'Income from house property' shall, subject to the provisions of sub-section (2), be computed after making the following deduction, namely:--- (i) is respect of repairs,--- (a) where the property is in the occupation of the owner, or where the property is let to a tenant and the owner has undertaken to bear the cost of repairs, a sum equal to o....