Law:

Section:

Income-tax Act (XI of 1922), Ss. 9 & 12-Property-Building lease-Ownership of building vested in lessee-Assessment of lessee under S. 9-Legality-Meaning of "owner".   In the case of a building lease the presumption is that the lessor remains the owner of the subject-matter of the lease includ ing the building. But, if the terms of the lease-deed show that the ownership of the super-structures is vested in the lessee while the ownership of the site remains in the lessor, the lessee can be assessed in respect of the income from the super-structures under section 9 of the Income-tax Act, 1922 as income from property. The lessee cannot claim that such income should be assessed under section 12 of the Act.   A person may be assessed as the owner of a property under section 9 of the Act even though he has no right to alienate the property or his full right of ownership is in some other way subject to contractual or other limitations.   Nawab Bahadur of Murshidabad v. Commissioner of Income-tax (1955) 28 I T R 510 and Ballygunge Bank Ltd. v. Commis sioner of Income-tax (1946) 14 I T R 409 applied.   Commissioner of Income-tax v. Madras Cricket Club (1934) 2 I T R 209 ref. JUDGMENT   LAHIRI, C. J.-This is a reference under section 66!1) of the Indian Income-tax and it arises out of the assessment of premises No. 12, Lower Chitpur Road, commonly known as Teiretta Bazar. The only question that arises for consideration in this reference is whether the assessment of the assessee under section 9 of the Indian Income-tax Act was proper. The assessee took a lease of premises No. 12, Lower Chitpur Road by art Indenture dated February 14, 1948. The question referred to this Court will have to be answered by a consideration of the different clauses of that indenture of lease. According to the assessee, it was a mere lease of the premises in question and as such it should have been assessed under section 12 of the Indian Income-tax Act. This contention of the assessee was overruled by the Income-tax Officer and that decision was confirmed on appeal by the Appellate Assistant Commissioner and by the Tribunal on second appeal. Against the…