SHIKHARCHAND JAIN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE question of law referred in this reference under Section 256 of the I.T. Act, 1961, by the Income-tax Appellate Tribunal is as follows:

(2.) THE reference relates to assessment years 1969-70 to 1972-73. THE facts found by the Tribunal are that the assessee lives with his father in the same town where the house in respect of which the relief under Section 23(3) is claimed is situated. THE distance between the two houses is two miles. THE assessee is a bachelor and, therefore, for his convenience resides with his father. THE Tribunal clearly found that it was not shown that by living in his own house the assessee cannot look after the partnership business of manufacturing bidis. It was further found that the assessee had not left his house vacant on account of compulsion of business, but on account of his personal convenience. A reading of Section 23(3) of the Act will go to show that the assessee has to prove, for getting the benefit of that provision, that the residential house could not be occupied by him by reason of the fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place in a building not belonging to him. Some nexus between the fact of residing in a building not belonging to the assessee and his employment, business or profession must be shown before the benefit under Section 23(3) can be claimed in respect of the residential house which is not occupied by the assessee. On the findings reached by the Tribunal, this nexus or connection has not been established. THE assesses, therefore, is not entitled to the exemption.