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 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 assessment 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 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 Commissionerconfirmed 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. 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 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
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 "administration" 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 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 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. 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 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. 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.
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
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 Incometax 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 conclusion 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.
"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 ) (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: "Ownership 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. 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 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. 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.