COMMISSIONER OF INCOME TAX, CALCUTIA versus BIJOY KUMAR ALMAL

Citation: [1995] 3 S.C.R. 170 · Decided: 04-04-1995 · Supreme Court of India · Bench: B.P. JEEVAN REDDY · Disposal: Dismissed

Judgment (excerpt)

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COMMISSIONER OF INCOME TAX, CALCUTIA 
v. 
BIJOY KUMAR ALMAL 
APRIL 4, 1995 
[B.P. JEEVAN REDDY AND G.T. NANA VAT!, JJ.) 
Income-Tax Act, 1961: Sections 23 and 26 Explanation (As inserted by 
Taxation Laws (Amendment) Act, 1975) Income from House Proper-
ty-Computation of-Property owned by two or more ownerr-Deduction 
C provided under Section 23(2)---Hold should be given separately to each co-
owners from out of his shares in annual value of the property of house. 
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The respondent wa_s the owner or an undivided one-third share in a 
house which he was occupying for his own residence alongwith his brother 
and other co-shares. In the respondent's assessment, for the assessment 
D Year 1962-<i3, the I.T.O. deducted the amount specified in Section 23(2) 
from out of the annual letting value of the house and then apportioned the 
balance annual letting value among the co-owners. The respondent claimed 
that the deduction provided for by Section 23(2) should be given separately 
to each co-owner. The Tribunal and the High Court decided in his favour. 
E Revenue preferred appeal to this Court. 
Dismissing the appeal, this Court 
HELD : The language of Section 26, even without taking into account 
the explanation, is clear enough. It provides that where property consisting 
F 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 
G which the income from house property has to be determined. Therefore, 
the respondent was jnstified 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 
H beyond any doubt by the Explanation appended to Section 26 by the 
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C.I.T.v. B.K.ALMAL(JEEVANREDDY,J.) 
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Taxation Laws Amendment Act, 1975. [172-G, H, 173-A) 
C/T~.Shyam Sunder, 122 I.T.R.541;Tulsi Das v. CIT, (1983) 63 CTR 
'."'. 324 and ClTv.-shanti Devi Iatan, 139 ITR 152 & 106 ITR 743, approved. 
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· ·' CIVIL 'APPELLATE JURISDICTION 
(NT) of 1977 . 
: Ci'11 Appeal No. 2298 
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·. :; :: •·.:From the Judgment and Order dated 24.11.75 of the Calcutta High 
Court in I.T.R. No. 274 of 1968. 
K.N. Shukla, B.S. Ahuja and Ms. A. Subhashini for the Appellant. 
The Judgment of the Court was delivered by 
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B 
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B.P. JEEY AN REDDY, J. This appeal is preferred by the Revenue 
against the judgment of the Calcutta High Court answering the question 
referred to ii in favour of the assessee and agaiiist the revenue. The D 
·question 1referred under Section 256(1) of the Income-Tax Act was 
"(W)hether, on the facts and in the circumstances of the case, the Tribunal 
..._ 
was right in holding that the statutory allowance mentioned in Section 23(2) 
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of the Income- tax Act; 1961 should be allowed every time separately in 
.. computing the income from house property falling to the share of each of E 
the co-owners. including the assessee?" 
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The assessment year relevant herein is 1962-63 .. The respondent was 
the Owiier of an undi'1ded one-third share in a house property during the 
relevant period. He alongwith his brother and other co-sharers was occupy· 
'-.... mg the house for his own residence. In the respondent's assessment, the F 
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•. J.T.O. deducted the amount specified in sob-section (2) of Section 23 from 
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o;tt'of. the annual letting value of the house and then apportioned the 
· balance.AL.V, among the co-owners. The respondent's case ~as that the 
dednction pr~Vided for by Section 23(2) should be given separately to each 
co-owner. It is the said dispute which is re!]ected in the question referred · G 
~or the opinion of the High Court. . · · 
. . ' . We may state imnlediately that such a .dispute would not really arise 
. ..__after from the assessment year 1976· 77 and onwards because of the inser· 
lion of explanatio~ in Section 26. ·Disputes had arisen' before _the said 
·explanation was inserted by Taxation Laws (Amendment) Act;

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