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PETITIONER: JODHA MAL KUTHIALA

       Vs.

RESPONDENT: COMMISSIONER OF INCOME TAX, PUNJAB, JAMMU &KASHMIR, HIMACHAL

DATE OF JUDGMENT09/09/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N.

CITATION:  1972 AIR  126            1972 SCR  (1) 639  1971 SCC  (3) 369  CITATOR INFO :  R          1984 SC 420  (38)  E&D        1987 SC 522  (17)

ACT: Income-tax   Act,  s.  9(1)-Property  left  by  evacuee   in Pakistan-Administered  by  Custodian  under  provisions   of Pakistan  (Administration of Evacuee Property) Ordinance  15 of  1949-Evacuee whether continues. ,owner’ of property  for purpose of s. 9 of the Income-tax Act, 1922.

HEADNOTE: The  assessee was a .,registered firm deriving  income  from securities, property, business and other- sources.  In  1946 it  purchased a hotel in ’Lahore for a sum of Rs.  46  lacs. For that purpose it raised a loan of Rs. 30 lacs from a bank and  a loan of Rs. 18 lacs from one R. The ’loan taken  from the, bank was largely repaid but with R the assessee came to an  agreement  whereby R accepted a half share in  the  said property  in lieu of the loan advanced and-. also  1/3rd  of the  outstanding  liability of the bank.   This  arrangement came into effect on November 1, 1951.  After the creation of Pakistan, Lahore became a part of Pakistan and the hotel  in question was declared evacuee property.  As such it came  to vest  in the Custodian in Pakistan.  In its returns for  the assessment  years 1952-53, 1955-56 and 1956-57 the  assessee claimed  certain  amounts as losses on account  of  interest payable  to  the bank but showed the  gross  annual  letting value from the said property at Nil.  The Income-tax Officer held that since the property had vested in the Custodian  no income or loss from that property could be considered in the assessee’s  case.   The  Appellate  Assistant   Commissioner confirmed   the  order  of  the  Income-tax  Officer.    The Appellate  Tribunal however came to the conclusion that  the assessee still continued to be the owner of the property for the  purpose  of the computation of loss, and  the  interest paid  was a deductible allowance under s. 9(1) (iv)  of  the Income-tax  Act, 1922.  In. reference the High Court  on  an analysis   of  the  various  provisions  of   the   Pakistan (Administration  of Evacuee Property) Ordinance.15 of.  1949 came  to the conclusion that for the purpose of s. 9 of  the Act-the  assessee  could not be considered as the  owner  of that property: ’In the assesee’s appeal to this Court it was

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contended  that  the property vested in the  Custodian  only for.  the purpose of administration and the  assessee  still continued to be its- owner. HELD  :  Under  the  Pakistan  (Administration  of   Evacuee Property)   Ordinance  1949  the  evacuee  could  not   take possession  of  his  property.   He  could  not  lease  that property.   He  could  not sell  the  property  without  the consent  of  the  custodian.  He  could  not  mortgage  that property.  He could not realise the income of the  property. All  the  rights that the evacuee had in the  property  were exercisable  by  the Custodian excepting that he  could  not appropriate  the proceeds to his own use.  The  evacuee  had only  a beneficial interest in the property.  In the eye  of the  law the Custodian who had all the powers of  the  owner was  the owner of the property.  His position_ was  no  less than that a Trustee. [643 F-644 A] Section  9 of the Income-tax Act,- 1922, brings.to  tax  the income  from property and. not the interest of a. person  in the  property.  A property cannot be owned by  two  persons, each  one  having independent and exclusive right  over  it. Hence for the purpose of s. 9 the owner must be 640 that person who can exercise the rights of the owner, not on behalf  of the owner but in his own right.  Accordingly  the assessee  was  not  the owner of the  property  in  question during the relevant assessment years for the purpose of s. 9 of the Act. [644 D] It  is true that equitable considerations are irrelevant  in interpreting  tax laws.  But those laws like all other  laws have  to  be interpreted reasonably and in  consonance  with justice.   If the thousands of evacuee who left  practically all  their properties as well as businesses in Pakistan  had been  considered  as  the owners  of  those  properties  and businesses  as  long as the ’ordinance’ was  in  force  then those  unfortunate persons would have had to pay  income-tax on the basis of the annual letting value of their properties and on the income, gains and properties of the business left by  them in Pakistan though they did not get a paisa out  of those  properties and business.  Fortunately no one  in  the past  interpreted  the law in the manner  suggested  by  the assessee. [644 E-G] Official  Assignee  for  Bengal (Estate  of  Jnanendra  Nath Pramanik),  5 I.T.R. 233, Commissioner of Inland Revenue  v. Fleming,  14 T.C. 78 and .Sir Currimbhoy  Ibrahim  Baronetcy Trust v. C.I.T., Bombay, 2 I.T.R. 148, applied. Amar  Singh v. Custodian, Evacuee Property,  Punjab,  [1957] S.C.R. 801, distinguished. P.C.  Lai  Choudhary v. C.I.T., 16 I.T.R. 123  and  Nawab Bahadur  of  Murshidabad v. C.I.T., West Bengal,  28  I.T.R. 510, considered.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeals Nos.  1970  to 1973 of 1968. Appeals from the judgment and order dated September 20, 1967 of the Delhi High Court in Income-tax Reference Nos. 2  :and 3 of 1967. V.C.  Mahajan and H. K. Puri, for the appellant  (in  all the appeals) V.S.  Desai,  R. N. Sachthey and B. D.  Sharma,  for  the respondent (in all the appeals). The Judgment of the Court was delivered by Hegde, J. In these appeals by certificate, the only question

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arising  for decision is : "whether on the facts and in  the circumstances of the case, the assessee. continued to be the owner  of  the property for the purposes of  computation  of income  under  S.  9 of the Income-tax  Act,  1922"  (to  be hereinafter  referred to as the Act).  A Full Bench  of  the Delhi  High Court speaking through S. K. Kapur, J.  answered that question in the negative.  Being dissatisfied with that decision the assesses has brought these appeals. Now turning to the facts of the case, the concerned  assess- ment  years are 1952-53, 1955-56 and 1956-57,  the  relevant accounting  periods being financial years ending  March  31, 1952, March 31, 1955 and March 31, 1956.  The assesses is  a registered 641 firm deriving income from interest on securities,  property, business  and other sources.  Sometime In the year  1946  it purchased  the  Nedous Hotel in Lahore for a sum of  Rs’  46 lakhs.   For that purpose it raised a loan of Rs.  30  lakhs from  M/s.   Bharat Bank Ltd., Lahore and a loan of  Rs.  18 lakhs from the Raja of Jubbal.  The loan taken from the bank was  partly  repaid but as regards the loan taken  from  the Raja, the assessee came to an agreement with the Raja  under which the Raja accepted a half share in the said property in lieu of the loan advanced and also 1/3rd of the  outstanding liability of the bank.  This arrangement came into effect on November 1, 1951.  After the creation of Pakistan,  declared an evacuee property and consequently vested in the Custodian in the Pakistan. In  its  return  for  the  relevant  assessment  years,  the assessee claimed losses of Rs. 1,00,723.- Rs. 1,16,599/- and Rs.  1,16,599/-  respectively but showed  the  gross  annual letting.  value  from the said property at  Nil.   The  loss claimed  was stated to be on account of interest payable  to the bank.  Since the property in question has vested in  the Custodian  of Evacuee Property, in Pakistan, the  Income-tax Officer  held that no income or loss from that property  can be  considered  in  the  assessee’s  case.   He  accordingly disallowed  the assessees claim in respect of  the  interest paid  to  the bank.  The Appellate  Assistant  Commissioner- confirmed  the order of the Income-tax Officer.   In  second appeal the Tribunal came to the conclusion that the assessee still  continued  to be the owner’ of the property  for  the purpose of computation of loss.  The Tribunal held that  the interest paid is a deductable allowance under s. 9(1)(iv) of the  Act.   In  arriving it that  conclusion,  the  Tribunal relied  on its earlier decision in the case of the  assessee in respect of the assessment year 1951-52. thereafter at the instance  of  the  assessee,  the  Tribunal  submitted   the question set out earlier.  Ile High Court on an analysis  of the  various provisions of the Pakistan  (Administration  of Evacuee  property)  Ordinance,  1949 (XV  of  1049)  (to  be hereinafter  erred  to  as  the  ’Ordinance)  came  to   the conclusion  that  for the purpose of s. 9 of  the  Act,  the assasee cannot be considered as .he owner of that property. It  was urged by Mr. V. C. Mahajan, learned Counsel for  the assessee  that  the  High Court erred in  opining  that  the assessee was not the owner of the property, for the  purpose of s. 9 of the Act.  According to him the property vested in the Custodian only for the purpose of administration and the assessee still continued to be its owner.  He contended that the expression "owner" means the person having the  ultimate right  to  the property.  He further contended that  the  so long as the assessee had a right to that 7-L3Sup.C.I./72 property  in  whatever  manner that right  might  have  been hedged in or restricted, he still continued to be the owner.

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On the other hand, it was contended on behalf of the Revenue that  the  Incometax  is concerned with  income,  gains  and profits.   Therefore for the purpose of that Act, the  owner is that person who is entitled to the income.  According  to the Revenue the word "owner" in s. 9  refers  to  the  legal ownership  and  not  to  any  beneficial  interest  in   the property. For deciding the question whether the assessee was the owner of   the property for the purpose of S. 9 of the Act  during the  relevant  accounting  years, we have  to  look  to  the provisions of the Ordinance.  Let us first take a survey  of the  relevant  provisions of the  Ordinance  and  thereafter analyse the effect of those provisions. The long title of the Ordinance says that it is an Ordinance to provide for the administration of the evacuee property in Pakistan  and for certain matters incidental  thereto.   The preamble  says that "whereas an emergency has  arisen  which renders  it necessary to provide for the  administration  of evacuee  property  in  Pakistan  and  for  certain   matters incidental thereto".  Section 6(1) provides that all evacuee property  shall  vest  and shall be deemed  always  to  have vested  in  the Custodian with effect from the  1st  day  of March 1947.  Section 9 gives Dower to the Custodian to  take possession  of  the evacuee property.  Section  11  provides that  any amount due to an evacuee or payable in respect  of any evacuee property, shall be paid to the Custodian by  the person  liable  to  pay  the same and  the  payment  to  the Custodian discharges the debtor’s liability to the extent of the  payment made.  Section 12 prescribes that the  property which hag vested in or of which possession has been taken by the  Custodian  shall  be exempt  from  all  legal  process, including  seizure,  distress,  ejectment  or  sale  by  any officer of a Court or any other authority a;; no  injunction or other order of whatever kind in respect of such  property shall be granted or made by any Court or any ot"  authority. Section  14(1) permits the Rehabilitation  Authority,  allot evacuee property to the refugees.  Section 16(1) says the no creation  or  transfer  of  any  right  or  interest  in  or encumbrane, upon any property made in any manner  whatsoever on or after the first day of March, 1947 by or on behalf  of an  evacuee  or by or on behalf of a person who has  or  may become  an  evacuee  after  the date  of  such  creation  or transfer,  shall be effective so as to confer any  right  or remedy on any party thereto or on any person claiming  under any  such  party, unless it is confirmed by  the  Custodian. Section  19  empowers the Custodian to restore  the  evacuee property  to the lawful owner subject to such conditions  as he may be pleased to impose.  Section 20(1) stipulates  that the Custodian may take such measures as he considers 643 necessary  or  expedient for the purpose  of  administering, preserving  and  managing  any evacuee  property  which  has vested in him and may for any such purpose as aforesaid,  do all  acts  and incur all expenses  necessary  or  incidental thereto.  Sub-s. (2) of that section provides that  "without Prejudice  to the generality of the provisions contained  in sub-s. (1), the Custodian may.               (m)sell      any     evacuee      property,               notwithstanding any this contained in any  law               or agreement to the contrary relating thereto,               Provided  that the Custodian shall  not  under               this Clause or the next succeeding clause sell               any immovable evacuee property or any business               or  undertaking  which  is  evacuee  property,               except  with  the  previous  approval  of  the

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             Central Government." Clause  (i)  of that sub-section empowers the  Custodian  to demolish  or  dismantle any evacuee property  which  in  his opinion  cannot  be  repaired,  or sell  the  site  of  such property  and  the  materials thereof.   The  Custodian  can recoup   all   the   expenses  incurred  by   him   in   the administration  of  the  evacuee property from  out  of  the receipts  in his hand in respect of that  property,  Section 22(1) requires the Custodian to maintain separate account of the  property  of  each  evacuee  of  which  he  has   taken possession and shall cause to be made therein entries of all receipts and expenditure in respect therof. The  Ordinance starts by saying that it is an  Ordinance  to provide  for the administration of evacuee property and  not management of evacuee property.  The expression "administra- tion" in relation to an estate, in law means managements and settling  of  that estate.  It is a power to deal  with  the estate.   The  evacuee  could not  take  possession  of  his property.   He could not lease that property.  He could  not sell that property without the consent of the Custodian.  He could not mortgage that property.  He could not realise  the lncome  of the property.  On the other hand,  the  Custodian could  take possession of that property.  He  could  realise its  income.   He could alienate the property and  he  could under certain circumstances demolish the property.  All  the rights  that  the  evacuee had in the property  he  left  in Pakistan were exercisable by the Custodian excepting that he could  not  appropriate the proceeds for his own  use.   The evacuee  could  not  exercise any rights  in  that  property except  with  the consent of the Custodian.  He  merely  had some  beneficial. interest in that property.  No doubt  that residual  interest  in a sense is ownership.   The  property having vested in the Custodian, who bad 644 all  the powers of the owner, he was the legal owner or  the property.   In  the eye of the law, the  Custodian  was  the owner of that property.  The position, of the Custodian  was no less than that of a Trustee.  Section 9(1) says :               "The tax shall be payable by an assessee under               the head "Income from Property" in respect  of               the   bona  fide  annual  value  of   property               consisting   of   any   buildings   or   lands               appurtenant thereto of which he is the  owner,               other  than such portions of such property  as               he   may  occupy  for  the  purposes  of   any               business, profession or vocation carried on by               him the profits of which are assessable to tax               subject to the following allowances namely :- The  question  is  who is the "owner" referred  to  in  this section  ?  Is it the person in, whom the property vests  or is it he who is entitled to some beneficial interest in  the property  It must be remembered that S. 9 brings to tax  the income from property and not the interest of a person in the property.   A property cannot be owned by two persons,  each one  having independent and exclusive right over it.   Hence for  the purpose of s. 9, the owner must be that person  who can  exercise the rights of the owner, not on behalf of  the owner but in his own right. For a minute, let us look at things from the practical point of view.  If the thousands of evacuees who left  practically all  their  properties as well as business in  Pakistan  had been  considered  as  the owners, of  those  properties  and business as long as the ’Ordinance’ was in force then  those unfortunate persons would have had to pay income-tax on  the basis of the annual letting value of their properties and on

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the income, gains and profits of the businesses left by them in  Pakistan  though they did not get a paisa out  of  those properties  and businesses.  Fortunately no one in the  past interpreted  the law in the manner Mr. Mahajan wants  us  to interpret.   It  is time that equitable  considerations  are irrelevant  in interpreting tax laws.  But these laws,  like all  other  laws have to be interpreted  reasonably  and  in consonance with justice. The  question  as to who is Vie owner of  a  house  property under s.  9  of  the Act in circumstances similar  to  those before us came up   for  consideration before  the  Calcutta High Court in the matter of   The   Official  Assignee   for Bengal  (Estate  of Jnanendra Nath Pramanik) (1).   In  that case on the adjudication of a person as insolvent under  the Presidency   Towns  Insolvency  Act,  1909,  certain   house property  of the insolvent vested in the Official  Assignee. The question arose whether the Official Assignee (1)5.  I.T.R. 233. 645 could  be  taxed in respect of the income  of  the  property under  s. 9. The High Court held_ that the property did  not by  reason of the adjudication of the debtor cease to  be  a subject fit for taxation and in view of the provisions of s. 17  of  the Presidency Towns Insolvency  Act,  the  Official Assignee  was  the,  "owner" of the property  and  he  could rightly  be  assessed  in respect of the  income  from  that property  under  s. 9. Section 17 of the,  Presidency  Towns Insolvency Act, reads:               "On  the making of an order  of  adjudication,               the property of the insolvent wherever situate               shall vest in the official assignee and  shall               became  divisible  among  his  creditors,  and               thereafter, except as directed by this Act, no               creditor to whom the insolvent is indebted  in               respect  of  any debt provable  in  insolvency               shall,  during the pendency of the  insolvency               proceedings,  have  any  remedy  against   the               property  of the insolvent in respect  of  the               debt:  or  shall commence any  suit  or  other               legal proceedings except with the leave of the               Court  and  on  such terms as  the  Court  may               impose :               Provided  that this section shall  not  affect               the  power of any secured creditor to  realize               or  otherwise  deal with his security  in  the               same manner, as he would have been entitled to               realise  or deal with it if this  section  had               not been passed." We  may  note that the powers of the Custodian are  no  less than  that  of the Official Assignee  under  the  Presidency Towns Insolvency Act, 1909.  Delivering the judgment of  the Court  in  the  Official Assignee’s  case(1),  Costello,  J. observed : "With  regard  to  the first point,  Mr.  Page  argued  that although  by section 17 of the Presidency  Towns  Insolvency Act these properties vested in the Official Assignee he  did not   thereby  or  thereupon  become  the  owner  of   those properties  within the meaning properly ascribable  to  that word  for  the purposes of the applicability of  Section  9. What  Mr. Page really invited us to do was to  restrict  the meaning  of  the word by putting before  it  the  qualifying adjective  "beneficial".   What was argued by Mr.  Page  was that  the  Official Assignee had no legal  interest  in  the properties  themselves, they were merely vested in  him  for the  purposes of the administration of them in the  interest

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of  the creditors of the insolvent.  I am unable  to  accept Mr.  Page’s  contention.   In  this  country  there  is   no difference  between "legal estate" and  "equitable  estate". In this connection the case of Sir Currimbhoy Ebrahim Baro- (1) 5 I.T.R. 233. 646 netcy  Trust v. Commissioner of Income-tax, Bombay 612  I.A. 1209) is of assistance.  At page 217 Sir Sydney Rowlatt when giving   the  judgment  of  the  Privy  Council  made   this observation: "In their Lordships" opinion the effect of  the Act creating these trusts is not to give the baronet for the time being any right to any part of the interest or property specifically  or  any right which, even  granting  that  the legal  title is not the only thing that can ever  be  looked at,  would  make it true to say that any proportion  of  the interest  is  not  ’receivable’ or  any  proportion  of  the property is not ’owned’ by the incorporated trustees."               The learned judges of the Calcutta High  Court               in  reaching  that conclusion  relied  on  the               decision in The Commissioner of Inland Revenue               v. Fleming(1).  That appeal related to a claim               for  repayment  of  income-tax  to  which  the               respondent  claimed to be entitled in  respect               of  "personal allowance" introduced  into  the               Income-tax system by S. 18 of the Finance Act,               1920.   The  claim  arose  in  the   following               circumstances :               The respondent was declared insolvent in 1921.               He was then the owner of heritable properties.               His insolvency lasted till May 10, 1926.  When               he  received  his  discharge  on  payment   of               composition and was reinvested in his  estate.               At  that time his estate consisted of (1)  Two               of the original heritable properties which had               not  been  realised  by  the  trustee  in  the               insolvency and (2) a balance in cash of  pound               53  odd.  During the insolvency,  the  trustee               paid  income-tax on the full annual  value  of               the   two   properties   in   question.    The               contention  of  the respondent  was  that  the               radical  right to these properties was in  him               all  that time; and that; in paying  the  tax,               the  trustee  was  really  paying  it  on  his               behalf-that   is,  on  his   income-and   that               consequently there arose in each of the  years               in  which  the  payment was made  a  right  to               deduct  his  "personal  allowance"  from   the               annual value ’of the properties.  The right to               this  abatement is said to have passed to  the               Respondent   himself   in   virtue   of    the               reinvestment in his estate which occurred upon               his discharge on composition.  Rejecting  this               contention Lord President observed :               "It  is obvious that, unless during the  years               in question the annual value of the properties               was  income of the Respondent, he cannot  have               any  claim to abatement of it  for  income-tax               purposes;  and accordingly everything  depends               upon the soundness of the proposition that the               income consisting in the annual value of               (1) 14, Tax Cases 78.               647               these  properties  was  truly  income  of  the               Respondent.  I do not see how it can  possibly               be  so described.  It was part of  the  income

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             arising  from the sequestrated estates  vested               in the trustee for the Respondent’s creditors.               Any  income that did arise from those  estates               was income of the trustee as such, and he (and               he  alone)  had the right to put it  into  his               pocket as income.  It was not income that went               or could go into the pocket of the  Respondent               as  income  in any of the years  in  question.               How  then can it be said to have  reached  his               pocket    as   income   on   his    subsequent               reinvestiture." For determining the person liable to pay tax, the test  laid down  by  the court was to find out the person  entitled  to that  income.   An  attempt  was  made  by  Mr.  Mahajan  to distinguish   this  case  on  the  ground  that  under   the corresponding  English  statute  the  liability  to  tax  in respect of income from property is not laid on the owner  of the property.  It is true that s. 82 of the English  Income- tax  Act,  1952 is worded differently.  But  the  principles underlying  the two statutes are identical.  This  is  clear from the various provisions in that Act. The   conclusion  reached  by  Costello,  J.   in   Official Assignee’s case(1) receives support from the decision of the Privy   Council  in  Trustees  of  Sir  Currimbhoy   Ibrahim Baronetcy  Trust v. Commissioner of  Income-tax,  Bombay(2). The Counsel for the appellant was unable to point out to  us any  decision which has taken a view contrary to that  taken in Official Assignee’s case(3). The learned judges of the High Court in reaching their  con- clusion that the assessee was not the owner of the  property in  the relevant assessment years, took assistance from  the decisions  of  English courts dealing with the  question  of levy of income-tax on the income from enemy properties taken possession  of by the Custodian during war.  In those  cases the  English judges have enunciated the theory of  suspended ownership.   We  do not think that we need  call  assistance from those decisions. Mr.  Mahajan  contended that despite the fact  that  evacuee property  was  taken over by the Custodian and that  he  had been conferred with large powers to deal with it, an evacuee from Pakistan who owned that property before he migrated  to India still continued to be the owner of the property.   For this  contention  of his he placed reliance on some  of  the observations  of  this  Court in Amar  Singh  v.  Custodian, Evacuee Property, Punjab(1).  Therein delivering judgment of the  Court  Jagannadhadas,  J. observed (at p.  815  of  the report): (1)5 I.T.R. 233. (2)2 I. T.R. 148. (3) [1957] S.C.R. 648               "Stopping  here  it  will  be  seen  that  the               position,  in its general aspect, is that  all               evacuee  property is vested in the  Custodian.               But the evacuee has not lost his ownership  in               it.  The law recognised his ultimate ownership               subject  to certain limitations.  The  evacuee               may  come  back  and  obtain  return  of   his               property, as also an account of the management               thereof by the Custodian." Those  observations have to be understood in the context  in which  they  were  made.   Therein,  their  Lordships   were considering  whether the right of an evacuee in  respect  of the  property  left  by him in the  country  from  which  he migrated was property right for the purpose of Art. 19 (1  )

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(1) (f ) of the Constitution.  No one denies that an evacuee from  Pakistan has a residual right in the property that  he left in Pakistan.  But the real question is, can that  right be considered as ownership within the meaning of S. 9 of the Act.   As mentioned earlier that section seeks to  bring  to tax income of the property in the hands of the owner.  Hence the  focus of that section is on the receipt of the  income. The  word  "owner"  has  different  meanings  in   different contexts.   Under  certain  circumstances a  lessee  may  be considered  as the owner of the property leased to him.   In Stroud’s Judicial Dictionary (3rd Edn.), various meanings of the  word  "owner" are given.’ It is not necessary  for  our present  purpose to examine what the word "owner"  means  in different contexts.  The meaning that we give to the word  " owner"  in s. 9 must not be such as to make  that  provision capable of being made an instrument of oppression.  It  must be in consonance with the principles underlying the Act. Mr.  Mahajan next invited our attention to the  observations in Pollock on Jurisprudence (6th Edn. 1929) 178-80:  "Owner- ship  may be described as the entirety of the powers of  use and  disposal allowed by law... The owner of a thing is  not necessarily  the  person who at a given time has  the  whole power  of  use  and disposal; very often there  is  no  such person.   We must look for the person having the residue  of all such power when we have accounted for every detached and limited portion of ’it; and he will be the owner even if the immediate power of control and use is elsewhere". It  is not necessary to consider whether those  observations hold  good  even  now because  of  the  various  legislative measures  enacted  during the last about forty  years  after those observations were made.  Suffice it to say that  those observations  are  inapplicable to the case of  the  "owner" under S. 9 of the Act. 649 Mr.  Mahajan  in  support  of  his  contention  next  placed reliance on the decision of the Patna High Court in Raja  P. C. Lal Choudhary v. Commissioner of Income-tax(1).   Therein the  question  was  whether  the  receiver  of  a   property appointed  by  court was the owner of the property  for  the purpose  of  s.  9  of  the Act.   The  court  came  to  the conclusion that he was not the owner as the property did not vest  in  him.  In fact in the course of the  judgment,  the court  made a distinction between a receiver and  a  trustee and  an  official assignee.  In our  opinion  this  decision instead  of  supporting the case of the appellant  may  lend some support to the contention of the Revenue. Reliance  was  next placed on the decision of  the  Calcutta High  Court in Nawah Bahadur of Murshidabad v.  Commissioner of Income-tax, West Bengal(2).  The facts of that case  were : Properties  which belonged to the ancestors of the Nawab  of Murshidabad as Rulers, were, some time after the territories had been conquered by the British, settled by the  Secretary of  State  for India in the year 1891 on the then  Nawab  of Murshidabad  under a deed of settlement which provided  that such properties " shall henceforth and for ever be held  and enjoyed  by  the said Nawab Bahadur and such one  among  his lineal  male heirs as may be successively entitled  to  hold the  said  title  in perpetuity,. with and  subject  to  the incidents,  power,  limitations  and conditions  as  to  the inalienability and otherwise hereinafter contained".  One of the  conditions  was  that he was not entitled  to  sell  or alienate  the  properties except with the  approval  of  the Governor  of Bengal.  The Settlement deed was  confirmed  by Act  XV  of  1891.  The question  arose  whet-her  Nawab  of

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Murshidabad  was liable to pay tax in respect of the  income of  those properties under s. 9 of the Act.  The Court  held that  whatever  might have been the original nature  of  the "State properties, after the deed of settlement and the  Act of  1891, as the dual status of the Nawab as the  holder  of the State and as an individual ceased, it could not be  said that  the  Nawab for the time being was not the  "owner"  of such properties for the purposes of s. 9 of the Act and  the Nawab  was therefore liable to be assessed to income-tax  on the income of such properties.  The Court further held  that the word "owner" in s. 9 of the Act applies to owners of the whole   income,   even  though  they   are   under   certain restrictions   with   regard  to  the  alienation   of   the properties.   We are unable to see how this  decision  gives any  support  to the contentions advanced on behalf  of  the assessee. After  giving our careful consideration to the  question  of law under consideration, we have come to the conclusion that the (1) 16, I.T.R. 123. (2) 28, I.T.R. 510. 650 assessee  was  not  the owner of Neadous  Hotel  during  the relevant  assessment  years for the purpose of s. 9  of  the Act.   Hence these appeals fail and they are dismissed.   In the  circumstances of the case we make no order as to  costs in these appeals. G.C. Appeals dismissed. 651