SALEEM AKHTAR, The respondent is an employee Director in a Company known as Manstock Engineering Company Ltd., Karachi. He owns a residential house in Lahore but his posting is at Karachi where he has been provided rent free furnished accommodation by his employer. While framing assessm ent for the years 1972-73 and 1973-74 the Income Tax Officer assumed the annual value of the house property owned by the respondent in Lahore and computed the income under section 9 of the Income-tax Act for inclusion in the total income. The respondent had not shown the income of the house in his return, therefore, he was asked to explain why the income from the property has not been included. He replied that the house has not been rented out. In the house his parents who are dependent on him are staying and that whenever he visits Lahore he stays in the house instead of staying in the hotel. The Income-tax Officer did not accept this plea and included the income of the house in his total income. The respondent then filed an appeal against the assessm ent order before the Tribunal. The Department did not challenge the fact that the house was not It out on rent and that the respondent's parents were occupying the residential house and that the parents were dependent on the assessee. On these undisputed facts the Tribunal decided in favour of the respondent holding that the Lahore property should be treated in occupation of the respondent/owner and only the excess over the limits prescribed under the proviso to subsection
(2) of section 9 included in the total income for charge of Income-tax. On Department's application the following question was referred:
(1) "Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that assessee's house at Lahore occupied by the parents was a property in the occupation of the owner for the purpose of his own residence within the meaning of the proviso to sub-section (2) of section 9 of the Income-tax Act"?
2. On the aforesaid facts the question calls for interpretation of proviso of sub-section (2) of section 9 of the Income-tax Act which reads as follows:-- 9(2) "For the purposes of this section, the expression "annual value" shall be deemed to mean the sum for which the property might reasonably be expected to It from year to year: Provided that where any such property is in the occupation of the owner for purposes of his own residence and the annual value thereof determined (hereinafter referred to as the said annual value)."
3. Mr. Nasrullah Awan, the learned counsel for the Department has contended that the proviso to sub-section (2) will apply where the owner is residing in the house and not otherwise. He has referred to Corpus Juris Secundum in which the word "own" has been defined as follows: OWN. "The word "own" is a general term which varies in its significance according to its use. It has been said that the* precise meaning of the word, when not modified by any other words indicating qualified or absolute ownership, depends on the subject- matter and the circumstances surrounding the subject-matter and the parties.
As an adjective.....
As an adjective, "own" is a term indicative of possession. Following the possessive, usually a possessive pronoun, it is used as an intensive to express ownership, interest, or individual peculiarity with emphasis, or to indicate the exclusion of others. As a verb. The word "own", as a verb, has a well-defined meaning in law, but it cannot strictly be regarded as a technical term or a word of art, since it does not always have the same meaning. It is a word of common parlance to be construed liberally."
4. On the other had, Mr. Nadeem Ahmed, the learned counsel for the respondent has referred to the Calcutta Stock Exchange Limited (1935) Income Tax Report 105, where a company had claimed benefit of the proviso to Section 9(2) and on a similar question as in the present case it was observed: "In my opinion, the word "residence" in its simple and ordinary meaning signifies the place where a human being eats, drinks and sleeps or where his family and servants eat, drink and sleep, and where there is some permanence or continuance of such eating drinking and sleeping, and the statement of Bayley, J. In the case of The King v. The Inhabitants of North Curry, is, in my opinion, an authority for that proposition. In that case, the learned Judge said that "where there is nothing to show that it is used in a more extensive sense, the word "residence denotes the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink and sleep."
Again it was observed: "In this connection, it is to be noticed that the word "own" has been inserted between the words "his" and "residence". I think that the object of inserting that word was to indicate that the phrase applied only to a human person or persons and not to a fictitious person, such as a limited liability company."
The ratio of this case seems to be that the words "his own residence" do not refer to a juristic person but they refer to the residence of human being and include the residence of a person who is an assessee his family members and servant.
To bring a case within the ambit of the proviso to Section 9(2) these conditions should be satisfied:-
(1) The assessee should be the owner of the house,
(2) The House should be in occupation of the owner, and
(3) The house should be used for the purposes of the assessee's own residence.
5. The occupation of the owner/assessee should be for his own residential purposes. The word "occupation" is significantly not qualified by the word "own". Therefore it will be permissible if the house is occupied by persons other than I the owner on his behalf, with his permission and for his use. However, no extended meaning can be given to the term ! "occupation" as it has been qualified by the words viz. "for the purposes of his own residence". Therefore, the occupation of the house should be restricted to the owner and such other [persons whose occupation may be treated as "his own I residence".
6. The learned counsel for the Department desires to restrict the meaning of the expression 'his own residence' to exclusively personal occupation and residence of the assessee. If this limited meaning is accepted then even the occupation and residence of assessee's wife and children will be excluded. The term "his own residence" cannot be given a limited construction to restrict it to the person of the assessee only. It has to be given a liberal meaning to include members of the family like assessee's wife, children, parents and such dependent blood relations who are residing with him as his family members.
7. A man can not be expected to live in seclusion detached from his social, moral, legal and religious obligations nor can he be expected to completely exclude his family members from the enjoyment of his property particularly when he is legally bound to maintain, provide shelter and abode to them. While interpreting the provision under consideration one cannot close his eyes to the realities of life and human and social aspect of or day to day life. Considering from this aspect one would be reluctant to give a limited and restricted interpretation to the term "his own residence" to exclude husband, wife, children, parents and dependant blood relations living with the assessee.
8. The meaning of the term "his own residence" has also to be considered in the social, economic and religious background of the assessee. This is an era of renaissance of Islam and we would be failing in or duty if the question relating to personal and family life of a Muslim is not interpreted in the light of injunctions of Islam. Keeping this principle in view while interpreting the term "his own residence" and 'family members' the legal, social and religious obligations of the assessee have to be given due weight. It is now settled that the words 'own: residence' will include the family members of the owner as well. Therefore, it has to be seen whether as in the present easel the parents can be called family members and their residence in the house owned by their son can be treated as his own residence. The assessee is a Muslim and, therefore, the obligations which are enjoined upon him under the injunctions, of Holy Qur'an should be obeyed and followed by him. In this regard it may be mentioned that the Holy Quran enjoins a Muslim to be kind and respectful to his parents and also to maintain them. This is a message of universal application irrespective of caste, creed or religion. It is the duty of the son to provide shelter, abode, maintenance and comfort to his parents. They are members of his family and cannot be| separated as a separate and distinct family unit. In this regard1 reference can be made to Muhammad Nawaz and four others v.
Altaf Rasool and others PLD 1985 Karachi 353. This was a case under Fatal Accidents Act where question arose whether in the case of accidental death of a boy aged eight years the parents can claim compensation. Naimuddin J. (as he then was) repelling the contention based on the judgments which had followed English cases that parents of a minor son cannot be terms to have suffered any damages and were not entitled to compensation, observed: "Lastly, the answer to the question whether the child would have been helpful or useful to his parents or not, would also depend on the social or economical conditions in which it was living way of life it was following, the religion which it was professing, for in oriental or Muslim Society service to or maintenance of parents by their children or vice versa is must as it is an article of faith with every member of Muslim family. Here I may quote English translation of three verses from Holy Qur'an which enjoins every Muslim to be kind and give company to parents, which in my opinion, imply material support and maintenance: "The Lord hath decreed That ye worship none but Him, And that ye be kind To parents. Whether one Or both of them attain Old age in the life, Say not to them a word of contempt, nor repel them, But address them In terms of honour".(S.XVII-23).
"And kind to his parents, and he was not overbearing or rebellion." (SJCIX-14).
"We have enjoined on man.
Kindness to his parents: In pain did his mother Bear him, and in pain Did she give him birth.
The carrying of the (child)
To his weaning is (A period of) thirty months.
At length, when he reaches The age of full strength And attains forty years, He says "O my Lord!
Grant me that I may be Grateful for Thy favour which Thou hast bestowed Upon me, and upon both My parents, and that I May work righteousness Such as Thou mayest approve, And be gracious to me In my issue. Truly Have I turned to Thee And truly do I bow (To The) in Islam." (S.XLVI-15).
Further, it is common experience that in Muslim society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning."
9. The rule propounded by Islamic Law for maintenance of the parents may equally apply not only to Muslims but to the entire Universe as it is a rule of justice and affords security to the old parents mostly those who may be dependent.
10. In view of the above discussion we are of the view that the term "his own residence" will include the residence and occupation of the house by the parents.
We, therefore, answer the question in the affirmative.