Calcutta H.C : We are concerned in this reference with the asst. yr. 1970-71. The assessee is one of the coowners of the house property known as Radia House situated in Bombay.

Counsel Appeared

A.C. Moitra with A.N. Bhattacharji, for the Revenue : N.K. Poddar with R.N. Saha, for the Petitioner

SABYASACHI MUKHARJI, J. :

We are concerned in this reference with the asst. yr. 1970-71. The assessee is one of the coowners of the house property known as Radia House situated in Bombay. She had oneeighth share in the said property. A part of the building, viz., two-thirds of the total floor area, has been in occupation of the tenants under certain lease agreements and the remaining one-third of the building has been in the occupation of the licensees under “Leave and Licence” system which has been in vogue in the State of Bombay. It appears that the said system has been adopted by the house-owners so that the occupants could not claim statutory protection under the Rent Control Act and they could be evicted by the owners at their will. It further appeared before the Tribunal that under this system the licence for occupation was generally given for a period not exceeding 11 months so that there might not be any possibility of the transactions being construed as lease. As per the particulars furnished by the assessee, the area in the occupation of such licensees under the “Leave and Licence” system was 11,159.56 sq. ft. as against the area of 19,787.44 sq. ft. in the occupation of the tenants under regular tenancy agreements, the actual area of the building being 30,947 sq. ft. The actual receipts per year from the licensees by way of licence fees were Rs. 1,58,51,120 as against Rs. 86,036.86, being receipts from the tenants. The total receipts from both categories of occupants were Rs. 2,84,548.08. While furnishing these figures of actual receipts, the assessee claimed that the annual value should be determined not with reference to the actual receipts but with reference to the fair rent. It was claimed that the sum of Rs. 86,036.86 being the rent received from the tenants for the portion of 19,787.44 sq. ft. in their occupation represented fair rent or rent which that portion might reasonably be expected to fetch and the fair rent which the portion of 11,159.56 sq. ft. in the occupation of licensees might be estimatedproportionately at Rs. 48,544.09 as against the actual receipts of Rs. 1,58,511.20 realised from those licensees for that portion.

The assessee thus claimed the gross annual value of the property to be fixed as Rs. 1,34,580.97 (Rs. 86,036.86 plus Rs. 48,544.09).

The ITO, however, did not accept this claim of the assessee. He took the actual receipts of Rs. 2,84,548.08 from both the tenants and the licensees as the annual value of the building and after giving the statutory deductions, determined the income from the house property at Rs. 1,70,916. He assessed one-eighth share thereof, that is to say, at Rs. 21,356, in the hands of the assessee, she being the owner of one-eighth share of the property.

Being aggrieved by the said decision, the assessee went up in appeal before the AAC. Before him, it was contended by the assessee that what was paid by the licensees for the portion in their occupation was in the nature of compensation and it could never be equated with the fair rent and that the net rateable value of the building, as fixed by the Bombay Municipal Corporation, should form the basis of computation of the annual value of the building under the IT Act, 1961. In support of this contention, reliance was placed upon the order of the Bombay Bench Tribunal in two other appeals and reliance was also placed on certain observation of the Supreme Court in the case of Nalinikant Ambalal Mody vs. S.A.L. Narayan Row, CIT (1966) 61 ITR 428 (SC), that in some cases the actual receipts from the property might be in excess of its annual value. On a consideration of the submissions made before him, the AAC held as follows: “…and as the principles which the annual value of the property in question have been decided by the Tribunal in Bombay, in the appeal of the co-owner as stated above by the learned counsel, it has to be held that the computation of the property in question made by the ITO is wrong. He is, therefore, directed to compute the property income on the basis of its rateable value, subject to various outgoings as provided in ss. 23(1) and 24. He will accordingly compute the assessee’s 1/8th share in the income thus determined and substitute that share in place of Rs. 21,356 as adopted by the ITO.”

Being aggrieved by the aforesaid order of the AAC, the Revenue went up in appeal before the Tribunal. On behalf of the Revenue, it was contended before the Tribunal that the Bombay Bench Tribunal was not correct in applying the theory of standard rent to that part of the building which was in the occupation of the licensees and holding that the standard rent of that area could not be more than the actual rent fetched from the other portion in the occupation of the tenants. It was submitted that in the case of a tenant-occupied premises governed by the Rent Control Act, the standard rent as defined in that Act might be taken as representing the sum for which the premises might reasonably be expected to be let but in case of the premises not occupied by tenants only the commercial rent which the premises would fetch if let out in the open market should be taken as the sum for which it might reasonably be expected to let for the purpose of determination of the annual value under s. 23 of the IT Act, 1961. Another argument of the Revenue was that what was collected from the so-called licensees in the guise of licence fees or compensation stood on the same footing as rent and that portion in the occupation of licensees must be presumed to fetch the same amount by way of rent if let out in the absence of any evidence to the contrary and the assessee had not adduced any evidence against that presumption. These submissions are important and are to be borne in mind because same contentions have been raised on behalf of the Revenue before us. We, however, do not think that these aspects raised on behalf of the Revenue are very relevant or come within the ambit of the question referred to us. But quite apart from that the contention raised on behalf of the Revenue before the Tribunal is also important and has to be borne in mind on this aspect.

Before the Tribunal, reliance was placed by the assessee upon another order of the Tribunal in the case of two other co-owners of the same property as also the decision in Nalinikant Ambalal Mody vs. S. A. L. Narayan Row (1966) 61 ITR 428 (SC), which we have referred to hereinbefore. Attention of the Tribunal was also drawn to the decision in the case of C. J..George vs. CIT (1973) 92 ITR 137 (Ker). The Tribunal, after con sidering the entire matter, was of the view that there might be some indication in which the income actually received from the property by the owner thereof in any year might exceed the notional figure representing its annual value. The Tribunal referred to the decision of the Supreme Court and observed that there might be some cases in which the income actually received from property by the owner in any year might exceed the notional figure representing its annual value but these observations, according to the Tribunal, could not be understood as meaning that in every case the actual income received by the owner from property must be presumed to be in excess of its annual value. The Tribunal was, therefore, unable to agree with the contention urged on behalf of the Revenue that the sum of Rs. 1,98,511.20 actually received by the assessee as licence fee or compensation from the licensees in occupation of a portion of the building comprising 11,159.56 sq. ft. must be presumed to be the sum for which that portion of the property “might reasonably be expected to let from year to year” within the meaning of s. 23 of the IT Act, 1961, in the absence of any evidence to the contrary.

The Tribunal observed that this portion of the building had not been in the occupation of the tenants under regular lease agreements and this sum of Rs. 1,98,511.20 was in the nature of licence fee but not rent, in character. Secondly, the Tribunal noted that the sum of Rs. 86,036.88 paid by the regular tenants in the occupation of the remaining area of 19,787.44 sq. ft. was accepted by the ITO himself as representing the annual value of that portion of the building. According to the Tribunal, this itself was proof of the fact that the sum of Rs. 1,98,511.20 paid by the licensees by way of licence fee for the lesser area of 11,159.56 sq. ft. was far in excess of the sum for which that portion might reasonably be expected to let from year to year. The Tribunal, therefore, was unable to accept the contention of the Revenue that the sum of Rs. 1,98,511.20 which was actually realised by the owners of the building by way of licence fees from the licensees in occupation of the lease area of 11,159.56 sq. ft. must be presumed to represent the annual value of that portion of the buildings. The Tribunal referred to the observations of the Supreme Court in the case of Nalinikant A.. Mody vs. Narayan Row (supra). The Tribunal was of the view that in a case where there was controversy as to whether the income realised by the owner from the occupants of the property was in excess of the sum for which that property might reasonably be expected to let from year to year, one of the tests for resolving the controversy was to see how the annual letting value of the property was valued by the local authority for the purpose of taxation under the law by which that local authority was authorised to levy property tax. In this connection reference was made to the observations of the Kerala High Court in C. J. George vs. CIT (supra). Thereafter the Tribunal considering the matter noted that no argument was advanced as to why the controversy as to whether the actual receipt from the property during the year was not in excess of the sum for which that property might reasonably be expected to let from year to year could not be resolved with reference to the municipal rateable value of the property. It was not suggested or contended that the municipal rateable valuation of the property was made without taking into account relevant consideration or that, it was made on the basis of irrelevant consideration. The local authority, i.e., the Municipal Corporation, was also a responsible body and, as was observed by the Kerala High Court, naturally, the said local authority was also interested in imposing as much legitimate tax as possible. That being so, the Tribunal felt that in the absence of any material to show that the municipal valuation was not a safe guide for determining the annual value of the property, the Tribunal was inclined to hold that the AAC was justified in directing the ITO to determine the annual value of the property afresh with reference to its municipal rateable valuation. Therefore, in this case what the Tribunal has done is to direct the ITO to determine the property income on the basis of annual value of the property with reference to the municipal rateable valuation. Upon this decision at the instance of the Revenue under s. 256(1) of the IT Act, 1961, the Tribunal has referred the following two questions to us :

“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the sum of Rs. 2,84,548 being the aggregate amount receivable by the assessee partly from the tenants in occupation of an area of 19,767.44 sq. ft. under regular tenancy agreements and partly from licence in occupation of an area of 11,159.56 sq. ft. under the leave and licence system could not be taken as the annual value of the property known as Radia House for the purpose of computing the income assessable under the head ‘Income from house property’ ?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in directing the ITO to redetermine the annual value of the property under s. 23(1) of the IT Act, 1961, afresh with reference to its rateable value as determined by the Municipal Corporation?”

6. The question, as we have indicated before, is whether in determining the annual value of the property known as Radia House for the purpose of computing the income assessable under the head “Income from house property”, the Tribunal was justified in directing that it should be done by the ITO keeping in view the municipal rateable valuation. This question, in our opinion, has to be adjudicated in the light of the provision of law and on the clear authorities on this point. Sec. 22 of the IT Act, 1961, enjoins that the annual value of property consisting of any building or lands appurtenant thereto of which the assessee was the owner, other than such portions of such property as he might occupy for the purposes of any business or profession carried on by him the profits of which were chargeable to income-tax, should be chargeable to income-tax under the head “Income from house property”. That income from house property is to be computed as provided in s. 23 of the Act. Sec. 23 of the Act, before its amendment w.e.f. 1st April, 1976, by the T.L. (Amendment.) Act, 1975, which is not material for our present purpose, indicated that for the purposes of s. 22, the annual value of any property should be deemed to be the sum for which the property might reasonably be expected to let from year to year. There was a certain proviso with which we are not concerned for our present purpose. This sub-s. (1) of s. 23 was amended, as we have indicated before, w.e.f. 1st April, 1976. The amended provision, so far as it is material for our present purpose, leaving aside the proviso, reads as follows : “23. Annual value how determined.—(1) For the purposes of s. 22, the annual value of any property shall be deemed to be — (a) the sum for which the property might reasonably be expected to let from year to year ; or (b) where the property is let and the annual rent received or receivable by the owner in respect thereof is in excess of the sum referred to in cl. (a), the amount so received or receivable…”

It is important to bear in mind the difference introduced by the amendment. But as we have indicated before we are concerned with the position prior to the amendment. Therefore, we have to find out what is the annual value of the property and that would be on the basis for which the property might reasonably be expected to let from year to year.

Before we refer to certain judicial authorities we may in this connection refer to the provisions of the Bombay Municipal Corporation Act, rateable value and the section which deals with the valuation of the property assessable to property tax. Sec. 154 of the Bombay Municipal Corporation Act, being, Bombay Act No.III of 1888 provides as follows : “154. (1) In order to fix the rateable value of any building or land assessable to a property tax, there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten per centum of the said annual rent and the said deduction shall be in lieu of all allowances for repairs or on any other account whatsoever. (2) The value of any machinery contained or situated in or upon any building or land shall not be included in the rateable value of such building or land. (3) Notwithstanding anything contained in this section, the rateable value in the case of building,—(a) owned by or belonging to the Government or the Bombay Housing Board constituted under the Bombay Housing Boards Act, 1948, or other similar body constituted by any law for the time being in force for the purpose of providing housing accommodation; (b) constructed, purchased or occupied on or after the 1st day of April, 1947, as part of a recognised scheme of subsidised housing for industrial workers or persons belonging to lower income groups or proper classes ; and (c) comprising in part or in whole of tenements let out to such workers or persons on a monthly rent, inclusive of all service and other charges not exceeding rupees thirty-two and fifty naye paise for each such tenement shall be fixed— (i) with respect to such tenements comprised therein, with retrospective effect from the date of their construction, purchase or occupation as stated in cl. (b) on the actual rent charged for such tenements and not on the rent, for which such tenements might reasonably be expected to let from year to year less deduction of ten per cent. of the said annual actual rent in lieu of all allowances for repairs or on any other account whatsoever; and (ii) with respect to the remaining portions, if any, of such building, on the basis of the provisions of sub-ss. (1) and (2).”

9. We are leaving aside the Explanation which is not necessary for our present purpose. This principle, that is to say, that the value of any building or land assessable to property tax shall be reduced from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year, seems to be more or less the basis both of the Calcutta Municipal Act, and the Bombay Municipal Corporation Act upon which certain decision proceeded. While on this, we may also refer to the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Sec. 7(1) of the said Act was as follows: “7. Rent (or licence fee or charge) in excess of standard rent illegal.— (1) Except Where the Tent is liable to periodical increment by virtue of an agreement entered into before the 1st day of September, 1940, it shall not be lawful to claim or receive on account of rent for any premises any increase above the standard rent, unless the landlord was, before the coming into operation of this Act, entitled to recover such increase under the provisions of the Bombay Rent Restriction Act, 1939, or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, or is entitled to recover such increase under the provisions of this Act.”

10. Sec. 7(2) was introduced in a year subsequent to the year with which we are concerned. Therefore, we need not consider s. 7(2). We have to find out what is the annual value in order to make it assessable under the bead “Income from house property” and whether such annual value could be anything more than the standard rent as enjoined under the Rent Act. The principle applicable clearly emerges from the several decisions which we may presently note. We may first refer to the decision in the case of Ganesh Chandra Khan vs. ITO (1978)111 ITR 934 (Cal). The case was, however, concerned really with whether reopening under s. 148 was valid or not, in other words, whether the condition precedent as provided by cl. (a) of s. 147 for such reopening was there. Dealing with this aspect of the matter and referring to several Supreme Court decisions at p. 940 of the report it was observed that a combined reading of the provisions of the Act and the Rent Control Act left no room for doubt that a contract for rent higher than the standard rent was not only not enforceable but also the landlord would be committing an offence if he collected rent above the standard rent. Therefore, it was observed that if anything in excess of certain sum of money was realised by the assessee as the rent the same would not be the reasonable letting value of the property. It was above the standard rent and could not be computed as income from house property. In this connection reference was made to the decisions in the case of Nalinikant Ambalal Mody vs. S. A.

L. Narayan Row, CIT (supra), Corporation of Calcutta vs. Smt. Padma Debi, AIR 1962 SC 15-1, and the decision of the Supreme Court in the case of Guntur Municipal Council vs. Guntur Town Rate Payers’ Association, AIR 1971 SC 353. This question directly came up for consideration before the Kerala High Court in the case of C. J. George vs. CIT (supra), a decision upon which the Tribunal relied. There the assessee constructed a building which he let out to a company on an annual rent of Rs. 33,000. The ITO fixed the annual value of the building at Rs. 33,000. The Tribunal came to the conclusion that there was no material available to accept the contention of the assessee that the notional annual letting value was less than the sum of Rs. 33,000 for which the building had actually been let. The Tribunal rejected the certificate produced by the assessee showing that the annual letting value had been fixed by the local authority at Rs. 18,000. It was held by the High Court that the Tribunal was not justified in holding that the rent received by the assessee represented the annual letting value of the building. For the purpose of taxation it was not the actual amount of rent, according to the Kerala High Court, that must be taken into account but the sum for which the property might reasonably be expected to let from year to year, as provided by s. 23 of the IT Act, 1961. The reasons given by the Tribunal for not accepting the certificate showing the annual letting value fixed by the local authority were not tenable. Prima facie, the High Court felt that the certificate afforded evidence to sustain the contention of the assessee that the contract rent was in excess of the reasonable rent which could be expected from the building.

This question was looked into from a different point of view by the Madras High Court in the case of Addl. CIT vs. Mrs. Leela Govindan (1978) CTR (Mad) 187 : (1978) 113 ITR 136 (Mad). We may incidentally point out that Chief justice P. Govindan Nair, who was a party to the judgment, was also a party to the decision of the Kerala High Court referred to hereinabove. In this case the assessee purchased certain house properties in 1951 in respect of which there existed a lease dated December 20, 1935, for a period up to 1st of May, 1959, on a rent of Rs. 225 per month with an option for renewal for a further period of 15 years. The lessees had agreed to pay to the previous owners additional amounts so that the previous owners were getting a total sum of Rs. 6,226 from the lease. The annual municipal valuations of the two properties were Rs. 7,502 and Rs. 10,374. Accordingly, the ITO computed the income from these two properties under s. 23(1) of the IT Act, 1961, at Rs. 5,021 and Rs. 6,944 totalling Rs. 11,965. The AAC on appeal accepted the assessee’s claim that the properties could not be let for any amount higher than Rs. 6,226 per annum during the period of the lease and accordingly arrived at the income from property after necessary deductions at Rs. 603. The Tribunal agreed with this view. On a reference to the High Court at the instance of the Revenue it was held that though the lessees might have sublet the building for a larger rent, what the assessee was entitled to get under the terms of the lease deed dated December 20, 1935, was only Rs. 225 per mensem which by persuasion had been slightly raised. As it could not be said that the rent fixed under the lease deed was not genuine or bad been fixed under the lease deed at a lower figure for some ulterior reason or other, it was not open to the Revenue to ignore the rent actually received by the assessee who could not claim more than that by reason of the lease deed subject to which alone he purchased the property and contend that the income should be computed on the basis of the annual value of the property which probably had been arrived at by the local authority on the basis of the rent received by the lessees. Accordingly, the Tribunal was right in its conclusion. The Division Bench of the Madras High Court held that the annual letting value would in certain circumstances, in view of the contract, be at a higher rent than the municipal valuation arrived at on the basis of rent received by the assessee. This view cannot be accepted in view of certain subsequent decisions of the Supreme Court.

This question came up first before the Supreme Court in the case of New Delhi Municipal Committee vs. M. N. Soi, AIR 1977 SC 302 (SC). There the Supreme Court observed although legislative provisions for the fixation of standard rent in New Delhi contained in s. 9 of the Delhi Rent Control Act of 1958 were comparatively recent and fairly elaborate, yet the fixation of rates for Purposes of assessment of house tax was still governed by the provisions of s. 3(1)(b) of the Punjab Municipal Act, 1911, enacted at a time when there was no machinery for the control of rents. On a bare reading of the provisions of s. 3(1)(a), no doubt was left that, although, annual value, for purposes of rating land, may be linked to the assessment of land revenue, if the State Government so directs, yet, in the cases of houses or buildings, it was the reasonable expectation to let such buildings subject to certain reasonable deductions, which governed valuation, whatever might have been the origin of rating. It is the same principle that has been mentioned in s. 154 of the Delhi Municipal Act which we have set out hereinbefore. The Supreme Court went on observing where rent was higher than that which could be legally demanded by the landlord and actually paid by a tenant despite the fact that such violation of the restriction on rent chargeable by law was visited by penalty consequences, the Municipal authorities could not take advantage of this defiance of the law by the landlord. Rating could not operate as a mode of sharing the benefits of illegal rack-renting indulged in by landlords for whose activities the law prescribed condign punishment. It was not the expectation of a landlord who took the risk of prosecution and punishment which the violation of the law involved but the expectation of the landlord who was prudent enough to abide by the law that served as the standard of reasonableness for purposes of rating. The Supreme Court observed that where “fair rent” relating to the house in question in New Delhi was fixed in 1941 under the New Delhi House Rent Control Order, 1939, and that fixation continued to be valid notwithstanding the repeal of the Control Order, even after the Delhi Rent Control Act 59 of 1958 came into force, the fair rent determined the standard rent which still affected the assessment of rates of the house in question for fixation of rates for assessment of house tax under the Punjab Municipal Act, notwithstanding the fact that the landlord was deriving at the time of fixation a much higher rent than the standard rent. Therefore, the ratio of the said decision is that the annual value under the Municipal Corporation should be fixed on the basis of standard rent receivable by the houses in question. This principle has been extended by the Supreme Court in the case of Dewan Daulat Rai Kapoor vs. New Delhi Municipal Committee (1980) 122 ITR 700 (SC). There also the Supreme Court observed that in relation to a building within the jurisdiction of the New Delhi Municipal Committee or the Corporation of Delhi, even if the standard rent bad not been fixed by the Controller under the Delhi Rent Control Act, 1958, the landlord could not reasonably expect to receive from a hypothetical tenant anything more than the standard rent determinable under that Act. This would be so equally whether the building had been let out to a tenant who had lost his right to apply for fixation of standard rent or the building was occupied by the owner himself. This principle, as the Supreme Court noted, would apply to self-occupied house and further when rent control legislation provided for fixation of standard rent which along and nothing more than which the tenant should be liable to pay to the landlord, it did so because it considered the measure of the standard rent prescribed by it to be reasonable. It laid down the norm of reasonableness in regard to the rent payable by the tenant to the landlord. Any rent which exceeded this norm of reasonableness was regarded by the Legislature as unreasonable or excessive. The Legislature obviously regarded recovery of rent in excess of the standard rent as exploitative of the tenant and would it be proper for the Court to say that it would be reasonable on the part of the landlord to expect to recover such exploitative rent from the tenant ?

13. This view was extended by the Supreme Court in the case of Mrs. Sheila Kaushish vs. CIT (Civil Appeal No. 1184 and 1185). This has not yet been fully reported (since reported in (1981) 24 CTR (SC) 351 :(1981) 131 ITR 435 (SC), and the relevant portion of the judgment with which we are concerned has been reported in the Statutes portion of the Supreme Court in (1981) 131 ITR (St.) 65, which reads as follows : ” …this was a decision given on the interpretation of the definition of ‘annual value’ in the Delhi Municipal Corporation Act, 1957, and the Punjab Municipal Act, 1911, for the purpose of levy of house tax, but it would be equally applicable in interpreting the definition of” annual value”in sub-s. (1) of s. 23 of the IT Act, 1961, because these definitions are in identical terms and it is impossible to distinguish the definition of ‘annual value’ in sub-s. (1) of s. 23 of the IT Act, 1961, from the definition of that term in the Municipal Corporation Act, 1957, and the Punjab Municipal Act, 1911. We must, therefore, hold, on an identical line of reasoning, that even if the standard rent of a building has not been fixed by the Controller under s. 9 of the Rent Act and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of the standard rent having expired, it is no longer competent to the tenant to have the standard rent of the building fixed, the annual value of the building according to the definition given in sub-s. (1) of s. 23 of the IT Act, 1961, must be held to be the standard rent determinable under the provisions of the Rent Act and not the actual rent received by the landlord from the tenant. This interpretation which we are placing on the language of sub-s. (1) of s. 23 of the IT Act, 1961, may be regarded as having received legislative approval, for, we find that by s. 6 of the Taxation Laws (Amendment) Act, 1975, sub-s. (1) of s. 23 has been amended and it has now been made clear by the introduction of cl. (b) in that sub-section that where the property is let and the annual rent received or receivable by the owner in respect thereof is in excess of the sum for which the property might reasonably be expected to let from year to year, the amount so received or receivable shall be deemed to be the annual value of the property. The newly added cl. (b) clearly postulates that the sum for which a building might reasonably be expected to let from year to year may be less than the actual amount received or receivable by the landlord from the tenant.”

14. On s. 154 of the Bombay Municipal Corporation Act, which we have set out hereinbefore, the Supreme Court has delivered a judgment dealing with the effect thereof in the case of Municipal Corporation of Greater Bombay vs. Polychem Ltd., AIR 1974 SC 1779. There, the Supreme Court held that the land on which a building was being constructed did not cease to be rateable simply because the construction was going on upon it.. So long as a building was not completed or constructed to such an extent that at least a partial completion notice could be given so that the completed portion could be occupied and let out, the land could, for the purpose of rating, be equated with or treated as vacant land. It was only when the building which was being put up in such a state which would actually and legally be, capable of occupation that the letting value of the building would enter into computation for rating rebus sic stantibusk. Although the definition of land which was rateable covered three kinds of land, yet for the purpose of rating, according to the Supreme Court, s. 154 recognised only two categories. Therefore, all lands must fall in one of those two categories for the purpose Of rating and not outside. This decision is important in view of the fact that this decision considered the effect of s. 154 and considered also the previous decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay vs. Royal Western India Turf Club, AIR 1968 SC 425. The Supreme Court in that decision had also referred to another decision of the Supreme Court in the case of Motichand Hirachand vs. Bombay Municipal Corporation, AIR 1968 SC 441.

15. In view of the fact that on behalf of the Revenue, reliance was placed on certain observations of the Supreme Court in the case of Motichand Hirachand, (supra), it would be instructive to refer to the observations of the Supreme Court in the said decision at p. 442 which explains the entire position. There the Supreme Court observed as follows : “The assessing authority for the purpose of fixing the rateable value has, therefore, to determine the annual rent, that is, the annual rent for which such building might reasonably be expected to let from year to year and to deduct the 10 per cent. statutory allowance therefrom and arrive at the net rateable value which would be equivalent to the net annual rent. The rateable value is thus taken to be the same as the net annual rent of the property. It is a well recognised principle in rating that both gross value and net annual value are estimated by reference to the rent at which the property might reasonably be expected to let from year to year.

Various methods of valuation are applied in order to arrive at such hypothetical rent, for instance by reference to the actual rent paid for the property or for others comparable to it or where there are no rents by reference to the assessments of comparable properties or to the profits earned from the property or to the cost of construction. The expression ‘gross value’ means the rent at which a hereditament might reasonably be expected to let from year to year. The rent which a tenant could afford to give is calculated rebus sic stantibus, that is to say, with reference to the property in its existing physical condition and to the mode in which it is actually used. The hypothetical tenant includes all persons who might possibly take the property including the person actually in occupation, even though he happens to be the owner of the property. The rent is that which he will pay in the ‘higgling of the market’, taking into account all existing circumstances and any relevant future trends. If the property affords the opportunity for the carrying on of a gainful trade, that fact also must be taken into account. The property is assumed to be vacant and to let and the material date for the valuation is that of the proposal which gives rise to the proceedings. The actual rent paid for the property is not conclusive evidence of value, though such actual rent may serve as an indication as to what a hypothetical tenant can afford to pay. However, if the actual rent is paid on terms which differ from those of the hypothetical tenancy it must be adjusted, if possible, to the terms of an hypothetical tenancy before it affords evidence of value. (see Halbury’s Laws of England, 3rd Edn., Vol. 32, p. 60 and onwards). It is also well recognised that while valuing the property in question every intrinsic quality and every intrinsic circumstance which tends to push the rental value up or down must be taken into consideration.”

16. Therefore, the Supreme Court made it clear that the actual rent paid for the property was not conclusive evidence of value, though such actual rent might serve as an indication as to what a hypothetical tenant could afford to pay but no more. Therefore, for the purpose of computing the income from house property, it must be done on the basis of s. 23 of the IT Act, 1961. As we have mentioned before, we have to consider the position of s. 23 before the amendment effected w.e.f. 1st April, 1976. This position has been made quite clear by the circular issued by the Board of Direct Taxes. We may refer to Circular No. 204 dated 24th July, 1976, where dealing with this aspect of the matter, the circular stated as follows (see (1977) 110 ITR (St.) 21, 26): “Determination of annual value where the rent received exceeds the municipal valuation-(s. 23(1)). 9. Hitherto, the annual value of house property chargeable to income-tax under the head ‘Income from house property’ was deemed to be the sum for which the property might reasonably be expected to let from year to year. In many cases, however, the actual rent received or receivable in a year exceeds the municipal valuation of the property. Sub-s. (1) of s. 23 has been amended to provide that where any property is in occupation of a tenant and the annual rent received or receivable by the owner is in excess of the sum for which the property might reasonably be expected to let from year to year, the annual rent received or receivable shall be taken as the annual value of the property. Where the property is let out only for a part of the previous year, the annual rent for this purpose will be the rent received or receivable for a period of twelve months calculated on the basis of the average rent received or receivable for the period the property was actually let out. This amendment has come into force w.e.f. 1-4-1976 and is, accordingly, applicable in relation to the asst. yr. 1976-77 and subsequent years (Sec. 6 (part) of the Amending Act).”

Therefore, in a case where the actual rent received is higher than that for which the property might reasonably be expected to let from year to year in respect of an income accruing subsequent to the amendment different considerations might arise. But we are not concerned with such a situation in the instant case. Therefore, in view of that position and the municipal law and in view of the decision of the Supreme Court, it appears to us that the income from house property must be computed on the basis of the sum which might reasonably be expected to let from year to year and with the annual municipal value provided such a value is not above the standard rent receivable and that would be the safest guide for this purpose and the rent actually received would not be of any relevance.

On behalf of the Revenue, however, it was contended that the amount of money which was received was in respect of a transaction, though connected with property, it need not be confined to income from house property under s. 22 r/w s. 23 of the IT Act, it could be taxed under s. 56 of the IT Act. It is not possible to accept this contention for reasons more than one. Firstly, that is not the question before us as we have set out the question. Secondly, as we have set out the contentions urged on behalf of the Revenue before the Tribunal, it was the Revenue’s case that this compensation should be taxed as income on account of rent under s. 22 and, therefore, it is not open to the Revenue to contend otherwise now. Quite apart from that fact, in law also, this position is not acceptable. Reliance was placed on the decision of the Supreme Court in the case of S. G. Mercantile Corporation P. Ltd. vs. CIT (1972) CTR (SC) 8 : (1972) 83 ITR 700. There, the assessee-company was incorporated in January, 1955. One of the objects specified in its memorandum of association was to take on lease or otherwise acquire and to hold, improve, lease or otherwise dispose of land, houses and other real and personal property and to deal with the same commercially. Within less than two weeks of its incorporation, the company took on lease a market place for an initial term of 50 years undertaking to spend Rs. 5 lakhs for the purpose of remodelling and repairing the structure at the site. It was also given the right to sublet the different portions. The assessee-company’s activity during the period covered by the asst. yrs. 1956-57 to 1958-59 consisted of developing, procuring and letting out portions thereof as shops, stalls and ground spaces to shop-keepers, stall-holders, and daily casual market vendors. The question was whether the assessee-company’s income from sub-letting the stalls was assessable as business income under s. 10 of the Indian IT. Act, 1922, or as income from other sources under s. 12. It was held that since the assessee-company was not the owner of the property or any part thereof, no question of making the assessment under s. 9 arose; that the definition of business in s. 2(4) was of a wide amplitude and it could embrace within itself dealing in real property as also the activity of taking the property on lease, setting up a market thereon and letting out shops and stalls in the market. The Supreme Court further held that, on the facts, the taking of the property on lease and sub-letting portions thereof was a part of the business and trading activity of the assessee-company and the income of the assessee-company fell under s. 10 of the Act, and that where, as in that case, the income could appropriately fall under s. 10 as being the business income, no resort could be made to s. 12. The liability to tax under s. 9 of the Indian IT Act was of the owner of the buildings and of land appurtenant thereto. In case the assessee was the owner of the buildings or land appurtenant thereto, he would be, according to the Supreme Court, liable to pay tax under s. 9 even if the object of the assessee in purchasing the landed property was to promote and develop a market thereon. It would also make no difference if the assessee was a company which bad been incorporated with the object of buying and developing the landed properties and promoting and setting up a market thereon. The residuary head of income should be resorted to only if none of the specific heads was applicable to the income in question. It came into operation only after the preceding heads were excluded. The narration of facts, in this case, would make it clear that the facts of the instant case are not coming within the mischief of s. 56. As we have mentioned before, the controversy before the authority below, had all along been whether it was the business income or income from house property., Here, on the other hand, it was contended that it should be treated as extra compensation or extra rent and the money which was receivable apart from rent as licence fee should be taxed as income from house property. Therefore, the observations of the Supreme Court cannot be of any assistance to the Revenue in aid of their submissions in this regard.

14. Reliance was also placed on the observations of Mr. Justice Ghose, as the Chief justice then was, in the case of Mrs. Roma Bose vs. ITO (1974) 95 ITR 299 (Cal). There, the observations were made entirely in a different context. What happened there was that a particular person who was a practising lawyer had died and after his death his wife received certain fees payable to the lawyer. The question was whether such fees could be taxed, in view of the provisions of s. 176(4) of the IT Act r/w s. 56 of the Act. That is a controversy with which we are not concerned. We are not concerned with the similar situation here arising out of s. 176(4) of the Act. Therefore, the observation made in that decision cannot be of any relevance for the Revenue in the case before us.

20. Our attention was also drawn to the decision of the Gujarat High Court in the case of Sakarlal Balabhai vs. ITO (1975) 100 ITR 97 (Guj). There our attention was drawn to certain observations of the Court appearing at p. 106 where the Court referred to the observations of the Supreme Court in the case of Motichand Hirachand vs. Bombay Municipal Corporation, AIR 1968 SC 441 at p. 442, which we have set out hereinbefore in the context in which the said observations were made. As the actual facts involved in the said case before the Gujarat High Court were entirely different, we do not think we can derive much assistance from the said decision.

Reliance was also placed on certain observations of the Supreme Court in the case of CIT vs. Piara Singh (1980) 17 CTR (SC) 111 : (1980) 124 ITR 40. There it was held that for a business loss, which was an illegal business, deduction could be allowable under s. 10 of the Act. This proposition cannot be disputed. The illegal gains from a business is certainly taxable. But that is not the issue before us. Therefore, the observations of the Supreme Court in the said case cannot be of much assistance for the learned advocate for the Revenue.

Reliance was also placed on the decision of the Supreme Court in the case of Bhagwan Dass Jain vs. Union of India (1981) 21 CTR (SC) 339 : (1981) 128 ITR 315, and our attention was drawn to the observations of the Supreme Court at p. 319 of the report where the Court referred to the observation of Lord Macnaghten in his celebrated judgment in Attorney-General vs. London County Council (1900) 4 TC 265 ; (1901) AC 35, “Incometax …… is a tax on income”. Our attention was also drawn to p. 320 of the report where the decision of the Supreme Court was referred to say what was the natural and grammatical meaning of the word “income”

According to the dictionary meaning, it meant ” a thing that comes in”.Therefore, it was argued that, as the money came in, this amount should be taxable. As we have mentioned, property income can be taxed as an income within the notion of s. 23(2) of the Act and that is the only head before the Tribunal and in that view of the matter, these observations cannot be of much assistance to the learned advocate for the Revenue.

Reliance was also placed on Stroud’s Judicial Dictionary as to what was the meaning of “reasonable”. But this is not relevant for us.

Reference was also made to a decision of the House of Lords in Smart (Inspector of Taxes) vs. Lincolnshire Sugar Co. Ltd. (1937) 20 TC 643, and our attention was drawn to the observations of Lord Macmillan appearing at p. 671 of the report. But we are unable to find any relevance of the said finding to the facts of the case.

In the view we have taken and the reasons as we have mentioned hereinbefore, both the questions referred to this Court are answered in the affirmative and in favour of the assessee.

Parties will pay and bear their own costs.

C.K. BANERJI, J. :

I agree.

[Citation : 141 ITR 419]