ORDER
M.C. Agarwal, Judicial Member
1. This is an appeal by the revenue arising out of the assessee’s assessment to income-tax for asst. year 1983-84. We have heard the learned Departmental Representative and the learned counsel for the assessee and have perused the material placed before us.
2. The first ground raised in this appeal is as under:
On the facts and in the circumstances of the case, the AAC erred in holding the relief of self-occupation Under Section 23(2) of the IT Act is also available to HUF.
3. The assessee is a Hindu undivided family and resides in a house owned by itself. The question is whether in terms of Section 23(2) of the Income-tax Act, 1961, the deemed income from the self-occupied property has to be restricted to 10 per cent of the total income. This benefit is granted by Sub-section (2) of Section 23 in respect of “a house or part of house in the occupation of the owner for the purposes of his own residence”. The ITO took the view that this benefit is available only to an individual and not to any other assessable entity. For this he found support from CIT v. Mohd. Amin Tyamboo [1980] 125 ITR 375 (J & K). On appeal, the AAC took a different view and held that the benefit of Section 23(2) was available to a Hindu undivided family as well because the karta of the HUF was a natural person.
4. At the hearing before us the learned Departmental Representative relied upon the language of Section 23(2) as reproduced above and the ratio laid down by Hon’ble the J & K High Court in Mohd. Amin Tyamboo’s case (supra). In that case there is certainly an observation that fon availing the benefit under Section 23(2), the owner must be a natural person, i.e., what is known in income-tax law as “an individual”. However, the controversy in that case was entirely different, i.e., whether the total income for the purposes of Section 23(2) would include the income assessable in the hands of the individual Under Section 64 or not. Therefore, the observation that the benefit can be claimed only by an individual is incidental if not obiter and cannot be said to conclude the issues on the point. In the case before us the assessee is a Hindu undivided family and there is no dispute that it is the family that is residing in the house in question. A family is a group of natural persons, i.e., individuals related to each other. A family cannot consist of artificial persons. There may be a limited company of which all the shareholders are artificial persons, e.g., other companies. Similarly, there may be a partnership firm whose partners may be artificial persons like companies. This is, however, not so in the case of a family. While a company or a partnership firm cannot use a house for its residence, a family can certainly do so.
5. Under Section 13 of the General Clauses Act, words in masculine gender shall be taken to include females and words in singular shall include plural and vice versa. Therefore, the word ‘owner’ would include owners and the words ‘his own’ would include ‘their own’. There is nothing, therefore, in the words used in Section 23(2) which may show that they cannot apply to Hindu undivided family which is nothing but a group of individuals related to each other in a certain manner. No direct authority to the contrary was pointed out by the learned Departmental Representative. For the reasons discussed above, we are in agreement with the learned AAC and uphold his findings.
6. The next ground raised in this appeal is as under:
On the facts and in the circumstances of the case, the AAC erred in directing that ITO assess the income from commercial flat under the head ‘Income from house property’ notwithstanding the fact that the flat has not been registered in the name of the assessee as contemplated Under Section 17 of the Registration Act.
7. This point stands covered against the assessee by a judgment of Hon’ble the Delhi High Court in Sushil Ansal v. CIT [1986] 160 ITR 308. Admittedly, the flat has not been legally conveyed to the assessee and hence the ITO was right in assessing the rental income therefrom as income from other sources. We, therefore, set aside the learned AAC’s order on this point and restore the asst. order made by the ITO.
8. The appeal is partly allowed.