1984 (4) TMI 77

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....ividuals only. Reliance was placed on the words used in section 23(2) of the Income-tax Act, 1961 (the Act), which refers to the property in the occupation of the owner for his own residence. Support was sought for this proposition from the decision of the Jammu and Kashmir High Court in the case of CIT v. Mohd. Amin Tyamboo [1980] 125 ITR 375. The learned counsel for the assessee submitted that the above decision was not applicable as the point for consideration was whether for the purposes of limiting the annual letting value to 10 per cent of the assessee's other income, the minor's share included under section 64 of the Act in the total income was also to be considered. It was submitted that in the absence of a specific prohibition of r....

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....ows : " The annual value of property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purposes of any business or profession carried on by him the profits of which are chargeable to income-tax, shall be chargeable to income-tax under the head 'Income from house property'." If we were to interpret the word 'he' occurring in this section as relatable to individuals, it might mean that exemption from taxation under the head 'Income from house property' is available in respect of business premises where the business is carried on only by individuals. Conversely, it might mean that property income from let out properties is assess....

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....income', which has to be understood as it is defined in clause (45) of section 2 of the Act. . ." A careful reading of the above will suggest that the emphasis is on the total income of the owner. In that sense the Court upheld the revenue's contention that the total income of the assessee would mean the total income determined for the purpose of income-tax which automatically included the share of the minor added to the income of the assessee by virtue of section 64. The question whether proviso to section 23(2) would apply to joint families also, was not before the Court. In this sense the observations of the Court regarding the interpretation of the words 'his own residence' are obiter dicta. 5. The assessee's claim can be justifie....