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PETITIONER: COMMISSIONER OF Income Tax, Calcutta

       Vs.

RESPONDENT: BIJOY KUMAR ALMAL

DATE OF JUDGMENT04/04/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) NANAVATI G.T. (J)

CITATION:  1995 SCC  (3) 525        JT 1995 (3)   425  1995 SCALE  (2)596

ACT:

HEADNOTE:

JUDGMENT: B.P.JEEVAN REDDY, J.: 1.   This  appeal  is preferred by the Revenue  against  the judgment  of the Calcutta High Court answering the  question referred  to  it in favour of the assessee and  against  the revenue.  The question referred under Section 256(1) of  the Income-Tax Act was "(W)hether, on the facts and in the  cir- cumstances  of the case, the Tribunal was right  in  holding that  the statutory allowance mentioned in Section 23(2)  of the  Income-tax  Act,  1961 should  be  allowed  every  time separately  in  computing  the income  from  house  property failing to the share of each of the co-owners including  the assessee?" 2.   The  assessment  year relevant herein is  1962-63.   He respondent was the owner of an undivided one-third share  in a  house property during the relevant period.  He  alongwith his brother and other co-sharers was occupying the house for his  own  residence.  In the  respondent’s  assessment,  the I.T.O.  deducted the amount specified in sub-section (2)  of Section 23 from out of the annual letting value of the house and then apportioned the balance A.L.V. among the co-owners. The respondent’s case was that the deduction provided for by Section 23(2) should be given separately to each co-  owner. It  is the said dispute which is reflected in  the  question referred for the opinion of the High Court. 3.   We may state immediately that such a dispute would  not really  arise  after from the assessment  year  1976-77  and onwards  because of the insertion of explanation in  Section 26.   Disputes  had arisen before the said  explanation  was inserted by Taxation Laws (Amendment) Act, 1975. 4.   Section  22 provides that the annual value of  property consisting of any buildings and lands appurtenant thereto of which 427 the assessee is the owner, shall be chargeable to income-tax under  the  head ’Income from house property’.   Section  23

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prescribes  the manner in which the annual value has  to  be determined.   Sub-  section (2), which is relevant  for  our purposes,  provided  that where the property consists  of  a house in the occupation of the owner for the purposes of his own residence, the annual value of such house shall first be determined  in the same manner as if the property  had  been let  and shall further be reduced by one-half of the  amount so  determined  or one thousand and  eight  hundred  Rupees, whichever is less.  Section 216, which is the other  section relevant  for  our purpose, along with its  explanation  in- serted with effect from 1.4.1976, reads thus:               "Property owned by co-owners.               26.     Where property consisting of buildings               or  buildings and lands appurtenant and  their               to  is owned by two or more persons and  their               respective      shares   are   definite    and               ascertainable,  such  persons   shall  not  in               respect  of  such property be assessed  as  an               association of persons, but the share of  each               such person in the income from the property as               computed in accordance with sections  22 to 25               shall be included in his total income:               Explanation: For the purposes of this section,               in applying the provisions  of subsection  (2)               of Section 23 for computing the share of  each               such  person as  referred to in  this section,               such share shall be computed, as if each  such               person is individually  entitled to the relief               provided in that subsection.  " 5.   In  our  opinion,  the language  of  Section  26,  even without  taking  into  account  the  explanation,  is  clear enough.   It  provides  that where  property  consisting  of buildings  (or buildings and lands appurtenant  thereto)  is owned by two or more persons and their respective shares are definite  and ascertainable, they shall not, in  respect  of such  property, be assessed as Association of  persons,  and that  the share of each such person in the income  from  the property  as computed in accordance with Sections 22  to  25 shall  be included in his total income.  Sections 22  to  25 prescribe the manner in which the income from house property has  to  be determined.  We are, therefore, of  the  opinion that  the  respondent  was justified in  claiming  that  the deduction  provided for by Section 23(2) be allowed  to  him separately from out of his share in the annual value of  the said  house  property, inasmuch as he, had  a  definite  and ascertainable share therein.  Indeed this very idea is  made clear  beyond  any  doubt by  the  explanation  appended  to Section 26 by the Amendment Act aforesaid. 6.   It  is  brought  to  our notice  that  apart  from  the judgment  under appeal (reported in 106 ITR 743), Delhi  and Bombay High Courts have also taken a similar view in MIT  v. Shyam  Sunder (122 ITR 541) and Tulsi Das v. CIT [(1983)  63 CTR  324].  The Calcutta High Court itself appears  to  have followed  the  judgment under appeal in CIT v.  Shanti  Devi Jalan (139 ITR 152). 7.   The  appeal  accordingly fails and  is  dismissed.   No costs. 429