V.K.SINGHAL, J. - (1.) THE Tribunal has referred the following question of law arising out of its order dt. 6th July, 1982, in respect of asst. year 1978 -79 under S. 256(1) of the IT Act, 1961 : "Whether on the interpretation of S. 28(iv) of the IT Act, 1961, the learned Tribunal was right in law in holding that the assessee who is looking after the business of the partnership from M/s Anand Gum Industries at Bombay, occupies portion of the business premises for his personal residence has been rightly assessed for the benefit or perquisite because of occupation of the portion under S. 28(iv) of the IT Act, 1961 -
(2.) THE brief facts of the case are that the assessee is a partner in the firm M/s Anand Gum Industries, Jodhpur carrying on business at Bombay. The assessee -firm purchased a flat known as 'Matri Ashish' at Napean Sea Road, Bombay, for a sum of Rs. 1,71,000. The assessee who is looking after the business of the firm at Bombay occupied 2/3rd portion of the said flat for his personal residence and the remaining 1/3rd portion was used for the purpose of the business of the firm. The ITO was of the view that the assessee derived the benefit or perquisites because of occupation of the flat and, therefore, S. 28(iv) of the IT Act was attracted. The value of such benefit was estimated by the ITO at Rs. 8,000 on the basis of the decision of CIT(A) in respect of asst. year 1977 -78 where similar addition was upheld by the CIT(A). The decision in the case of M.Ct. Muthiah vs. CIT (1974) 97 ITR 516 (Mad) was also taken into consideration.
(3.) IN appeal before the CIT(A) the order of assessment was upheld. The matter was challenged before the Tribunal and following the view taken in previous assessment year, the second appeal was also dismissed. Arguments of the learned counsel for the parties have been heard. The matter with regard to inclusion of benefit/perquisite in respect of the property occupied by the partner/director was considered by this Court in the case of CIT vs. R.L. Kasliwal (Ref. No. 72/1982 dt. 14th Sept., 1993) [since reported at (1994) 120 CTR (Raj) 56] and it was held that the benefit/perquisite is liable to be included in the income under S. 28(iv) of the IT Act.;