T. N. C. RANGARAJAN, J.M.: These appeals reiterate claim of assessee for relied under s. 23(3)(b) of IT Act, 1961. assessee is individual. assessee was ordinarily residing at Kathmandu, Nepal. However, he constructed house at Udupi in which he actually resided in previous year ended 31st March, 1977 corresponding to asst. yr. 1977-78 only for month. For rest of period, house was occupied by his son who was student of M. I.T., Manipal alongwith servant. assessee, therefore, claimed that since he could not actually occupy property by reason of his employment elsewhere there should be remission of annual letting value proportionately to period not occupied by him. This w s denied by authorities below. In further appeal before us, it was contended on behalf of assessee that provision of sub-s. (3) of s. 23 was designed only to meet contingency such as this where assessee could not himself occupy residential premises and, therefore, he was entitled of relief. On other hands, it was contended on behalf of Revenue that scheme of s. 23 was to assessee notional income from house property and if it were let out there would be remission of annual value depending upon actual rent received. It was submitted that concession was provided where assessee occupied it himself and, therefore when he did not occupy it himself but allowed house to be occupied by someone else, then either it should be treated as let out property or notional income therefore has to be assessed under provisions of main section. According to Revenue relief under sub-s. (3) was available only when house was kept entirely vacant and locked up. On consideration of rival submissions, we are of opinion that assessee is entitled to succeed. Sec. 22 provides that annual values of property of which assessee is owner shall be chargeable to income tax under head income from house property . Sec. 23(1) provides that annual value shall be determined to be reasonable letting value provided where it is actually let out, actually let out, actual rental income shall be taken. Sub- s. (2) provides that where owner himself resides in that residential property there shall be remission of 50 per cent from annual value as determined under sub-s. (1). We now come to sub-s. (3) which provides that where property referred to in sub-s. (2) consists of one residential house only and it cannot actually be occupied by owner by reason of fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place, in building not belonging to him, annual value of that house shall be taken at nil and in case it was partly occupied by him for fraction of previous year, proportionate of annual value shall be taxed. AAC had referred to decision of Allahabad High Court in case of CIT vs. Rani Kaniz Abid 1972 TLR 587 which was case under sub-s. (2). In that case it was held that though assessee did not actually reside in house but only her daughter and son-in-law resided therein, it should be deemed to be house in occupation of owner for purpose of his own residence so that assessee was entitled to concession thereunder. But we have here different situation viz. provisions of sub-s. (3) which states that assessee is entitled to further remission where house was not actually occupied by owner. contention of assessee is that phrase "actually occupied" must be given significance so that occupation by son would not be sufficient to deprive assessee of relief under sub-s. (3). On other hand, contention of Revenue is that assessee had derived some benefit by reason of occupation by son and it should be deemed to have occupied property himself. justification for taxing notional income from house property itself was given in case of Governors of Rotunda Hospital vs. Coman 7 TC 517 as "if owner of such properties as these should be himself in occupation of them, it by no means follows that he will, in fact, derive from them income equal to this annual value, but as he has use and enjoyment of properties, it is, for purposes of statute, presumed that he does derive from them income equal in amount to this annual value, and tax is accordingly assessed upon this presumed income." This passage was emphasised by Supreme Court in case of Bhagwan Dass Jain vs. Union of India & Ors. (1981) 21 CTR (SC) 389: (1981) 128 ITR 315 (SC). But where assessee is not actually in occupation of house, this benefit would no longer be available and that is, perhaps, reason why sub-s. (3) has been enacted to give relief where assessee is not actually in occupation. meaning of phrase "actually occupied" can be clearly understood by acceptable reason given in section itself viz., "by reason of fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place in building not belonging to him." This shows that where assessee is required to have double establishment, statute intended to give assessee relief in respect of housed in which he himself was not residing. This is further straightened by opening words of sub-s. (3) which grants this remission only in respect of house referred to in sub-s. (2) which is itself house in occupation of owner for purpose of his own residence. This shows that even if house could be deemed to be in occupation of owner for purpose of his own residence by reason of has family continuing to reside in that premises, it would be house in respect of which relief under sub-s. (3) will be available where assessee himself is not able to reside by reason of his occupation elsewhere. From this situation we can easily see that occupation by son or other relative has to be disregarded because statute was concerned with actual occupation by assessee himself and not deemed or derivative occupation through benefit given to any relative. We are, therefore, convinced that in terms of s. 23(3), assessee, who was not himself actually in occupation of premises was entitled to relief granted by that sub-section. We accordingly, set aside orders of authorities below on this point and direct ITO to recompute total income for asst. yr. 1977-78 and correspondingly for other two asst. yrs. 1978-79 and 1979-80 also depending upon actual occupation by assessee. In result, appeals are allowed. *** RAVAL PADMANABHA SHASTRI ADIGA v. INCOME TAX OFFICER