Delhi High Court
Commissioner Of I.T.I.W.T. vs Avadh Behari on 17 October, 1984
Bench: D Kapur, S Bhandare
JUDGMENT
D.K. Kapur and S. Bhandare, JJ.
(1) This is an application u/s 226(1) of Income Tax claiming that question of law arises out of the Tribunal's order. The question claimed is : "WHETHER on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the assessed was entitled to the exemption claimed u/s 23(3) ?"
(2) The Tribunal had refused to make a reference u/s 256(1) on the ground that in a similar case of Shri K. K. Jhalani it had been held that the exemption was to be given and, it appears that the decision of the Tribunal holding that no question of law arose was confirmed by a Bench of this court in I.T.C. No. 160/80, D./3-5-82.
(3) Inasmuch as, there is some slight difference on facts, we would like to decide this case by an independent judgment. The assessed is a sitting Judge of this Court. He has his own property at 419, Esplanade Road, Delhi which is a residential house kept vacant by him. At the same time the assessed resides at an official residence provided by the State at No. 6, Dr. Zakir Hussain Road, New Delhi. The question raised by the assessed was that he was entitled to the exemption provided by S. 23(3) of the Income-tax Act, 1961. The exemption is to be granted when a person by reason of his employment, business or profession carried on at any other place has to reside at that other place in a building not belonging to him. It is clear that the assessed is residing in a building not beloning to him and he is residing there because his official business requires him to reside there. The real controversy that can be raised and has been raised on behalf of the Department is that Delhi and New Delhi are not other places but are the same place.
(4) It is submitted that this is a question of law and we should direct a reference to be made concerning the question set out earlier. However, it seems to us that the answer to the question is self-evident. The assessed is residing at New Delhi in a building not belonging to him and he is keeping a residential house situated in Delhi vacant because of the reason that his employment, business etc, requires him to reside at New Delhi in his official residence. I It can also be said that Delhi and New Delhi are different places.
(5) When it has been determined by the Tribunal that the assessed has to reside at his official residence by reason of his office, it follows that he is residing at some other place in a building not belonging to him because of the reasons mentioned in S. 23(3) of the Act. So, the answer to the question is self- evident. One can visualise examples of many officials and dignitaries under the Constitution and even otherwise having to reside in official residences instead of their own residence by reason of their office The section would apply in those cases and the exemption would be available to the assessed. The reference in the section is to other place and not other town. So in a sense the application of the section has to depend on the facts of each case. In the present case the answer is self- evident, So, we decline to call for a reference. There will be no order as to costs. Hon'ble Mr. Justice Yogeshwar Dayal
