COMMISSIONER OF INCOME TAX Vs. GAYA PRASAD KHEMANI

JUDGEMENT

(1.) BY this reference made at the instance of the Commissioner of Income-tax, the Income-tax Appellate Tribunal, Gauhati Bench, Gauhati, has referred the following question of law for our opinion:

(2.) THE question is not happily worded. THE expression "but was given user by the firm in which he was a partner" does not appear to be appropriate. THE proper expression should have been "but used by the firm in which he was a partner". However, as there is no ambiguity about the controversy for determination, we do not propose to reframe the question.

(3.) THE contention of counsel is that the interest paid in this case does not fall within the ambit of the aforesaid Clause (iii) inasmuch as the "capital" in respect of which the interest in question has been paid was, strictly speaking, not borrowed for the purpose of business or profession. THEre is no dispute that the building in question was used for the purpose of the business of the firm in which the assessee was a partner having 25 per cent. share in the profits and losses thereof. THE only question for determination is whether the user of a commercial asset by the firm in such a case would amount to user by the assessee for the purpose of business or profession.