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Commissioner of Income-tax, Bombay City-iii Vs. Smt. T.P. Sidhwa - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberIncome-tax Reference No. 56 of 1971
Judge
Reported in(1981)22CTR(Bom)146; [1982]133ITR840(Bom); [1981]6TAXMAN91(Bom)
ActsIncome Tax Act, 1961 - Sections 4, 5, 14, 22, 23, 24, 25, 26, 27, 28, 56, 56(1), 56(2), 57, 58, 59, 176, 176(3A) and 176(4)
AppellantCommissioner of Income-tax, Bombay City-iii
RespondentSmt. T.P. Sidhwa
Excerpt:
- - act, 1961. applying the tests laid down by the supreme court in the said decision, the tribunal held that one has to look to the character of the income, and if the character of the income is such that it falls under the head 'income from property',then it can be charged to tax only as 'income from property' on conditions laid down under the relevant provision of the charging section, and cannot be brought to tax under the residuary head 'income from other sources' merely because the condition mentioned in the computing section is not satisfied. mody's case [1966]61itr428(sc) ,the following principles clearly emerge :(i) several heads of income mentioned in section 6 are mutually exclusive; but, in our view, the ratio of that case would equally hold good in this case also as the.....p.s. shah, j.1. this is a case stated by the income-tax appellate tribunal, bombay bench, and the question referred to us is as under :'whether, on the facts and in the circumstances of the case, the assessee's income from property of which she was not the owner could be charged to tax in her hands as income under the head `income from other sources' under section 12 of the indian income-tax act, 1922, or under section 56 of the income-tax act, 1961 ?'2. one, m. n. e. dinshaw, was the owner of one-fourth share in the house property, which has been referred to in the proceedings as the 'colaba property'. while the said m. n. e. dinshaw was in europe, his son, eddie m. dinshaw wrote a letter dated 23rd february, 1959, to one mr. p. h. sidhwa, the husband of the assessee, the respondent......
Judgment:

P.S. Shah, J.

1. This is a case stated by the Income-tax Appellate Tribunal, Bombay Bench, and the question referred to us is as under :

'Whether, on the facts and in the circumstances of the case, the assessee's income from property of which she was not the owner could be charged to tax in her hands as income under the head `Income from other sources' under section 12 of the Indian Income-tax Act, 1922, or under section 56 of the Income-tax Act, 1961 ?'

2. One, M. N. E. Dinshaw, was the owner of one-fourth share in the house property, which has been referred to in the proceedings as the 'Colaba property'. While the said M. N. E. Dinshaw was in Europe, his son, Eddie M. Dinshaw wrote a letter dated 23rd February, 1959, to one Mr. P. H. Sidhwa, the husband of the assessee, the respondent. Smt. Sidhwa, saying that his father was willing to sell the one-fourth share in the Colaba property for a sum of Rs. 45,000, provided he is relieved of all liabilities arising after 31st March, 1959, whether the sale deed or the documents are completed or not. By a letter dated February 27, 1959, Mr. Sidhwa replied that his wife would be willing to purchase the one-fourth share in the property for the sum of Rs. 45,000. By a letter dated March 16, 1959, Mr. Eddie M. Dinshaw confirmed the proposal made by the assessee's husband Mr. Sidhwa, and pursuant thereto, the assessee executed a pro-note in favour of Mr. M. N. Dinshaw for Rs. 45,000 on March 26, 1959. In June, 1960 however, Mr M. N. Dinshaw died. Thereafter, his legal heirs including his son, Mr Eddie Dinshaw, confirmed the proposed sale of the said property for Rs. 45,000 as from April 1, 1959. Thereafter, by a letter dated December 8, 1960, addressed to the legal heirs, the respondent-assessed cancelled the old promissory note and forwarded a fresh one for the same amount of Rs. 45,000 in the name of the legal heirs. By a letter dated December 27, 1960,the legal heirs again confirmed the sale of the Property by M. N. E. Dinshaw as from 1st April, 1959. Subsequently, on February 2, 1963, a regular conveyance deed in favour of the assessee was executed. Thus, the assessee became the full owner of the one-fourth share in the said property with effect from February 2, 1963.

3. Some time prior to the execution of the conveyance deed, additional construction on the existing property was commenced and on April 4, 1962, a lease deed was executed with the President of India, agreeing to let out to the Atomic Energy establishment the second, third and the fourth floors under construction. One Mr R. D. Sidhwa, one of the four equal co-owners. He collected rent and paid to the assessee her one-fourth share as from April, 1959. In the first year, that is, for the period from April 1, 1959 to March 31, 1960, the one-fourth share of the rental income was credited to the account of Mr. M. N. E. Dinshaw and later on was transferred to the assessee by crediting the same to the account of the assessee on March 1, 1961. Thereafter, the one-fourth share of the rental income from the property was credited directly to the account of the assessee in the property accounts maintained by Mr R. D. Sidhwa. Thus, in effect, the assessee received her one-fourth share of income from the Colaba property as from 1st April, 1959. She, however, became the legal owner of the property only from the date of the conveyance, i.e., from February 2, 1963.

4. The question that arose before the ITO was whether the income derived by the assessee as rent of the property for the period from April 1, 1959, to February, 1963, when he was not the legal owner of the property was chargeable to tax under the head 'Income from other sources' under s. 12 of the Indian I.T. Act, 1922, for the assessment years 1960-61 and 1961-62, and under s. 56 of the I.T. Act, 1961, for the assessment years 1962-63 and 1963-64. The ITO took the view that although the assessee may not be the legal owner of the property till February 2, 1963, the assessee was collecting the rental income to the extent of her one-fourth share from the property and, therefore, she could be regarded as the beneficial owner as regards the property income. He held that though such income could not be brought to tax as 'income from property' under the computing s. 9 of the Indian I. T. Act, 1922, or s. 22 of the I. T. Act, 1961, such income was chargeable to tax under the head 'Income from other sources' under s. 12 of the Indian I. T. Act, 1922, for the assessment years 1960-61 and 1961-62, or under s. 56 of the I. T. Act, 1961 for the assessment years 1962-63 and 1963-64. Accordingly, the assessee's rental income amounting to Rs. 10,892, Rs. 6,079, Rs. 9,077 and Rs. 25,669 was brought to tax for the assessment years 1960-61, 1961-62, 1962-63 and 1963-64, respectively, as 'Income from other sources'. As far as the last assessment year is concerned, since the assessee was treated as the owner of the property from February, 1963, of her one-fourth share, the rental income for the last two months, that is February, 1963, and March, 1963, amounting to Rs. 5,502 was assessed to tax under s. 22 of the I. T. Act of 1961 as 'Income from house property'. However, for the first 10 months of the accounting year,her one-fourth share in the rental income of the said property was assessed to tax under s. 56 of the Act of 1961 as 'Income from other sources'. The AAC confirmed the assessments made by the ITO. He held that the assessee was the de facto owner of the property for the period from April 1, 1959, to February 2, 1963, and the income received by the assessee was assessable to tax as 'Income from other sources'. The Income-tax Appellate Tribunal, relying on the decision of the Supreme Court in Nalinikant Ambalal mody v. S. A. L. Narayan Row, CIT : [1966]61ITR428(SC) , upheld the contention of the assessee that the rental Income from February, 1963, could not be brought to tax under the head 'Income from other sources' under s. 12 of the Indian I.T. Act, 1922, or under s. 56 of the I. T. Act, 1961. Applying the tests laid down by the Supreme Court in the said decision, the Tribunal held that one has to look to the character of the income, and if the character of the income is such that it falls under the head 'Income from property', then it can be charged to tax only as 'income from property' on conditions laid down under the relevant provision of the charging section, and cannot be brought to tax under the residuary head 'Income from other sources' merely because the condition mentioned in the computing section is not satisfied. The Tribunal was of the view that the ownership of the property is merely a condition for assessment under the charging section relating to the head of income 'Income from house property', but it does not determine the character of the income, nor does the character of the income change on the basis of the chargeability to tax. Another argument of the assessee which found favour with the Tribunal was that if the revenue's contention is accepted, there is a possibility of double taxation of the same income in two hands-in the hands of the owner under s. 9 as 'income from property' and in the hands of the recipient of income who is not the owner under s. 12 of the Indian I. T. Act, 1922-as 'income from other sources'. In the absence of any clear provision for double taxation of the same income, the construction which involves the possibility of double taxation on the same income in two hands must be avoided. The Tribunal, therefore, allowed the appeals and directed the ITO to modify the orders in the light of the view taken by it. On application by the Commissioner under s. 256(1) of the I. T. Act, 1961, the Tribunal drew up a consolidated statement of the case and has referred the question of law to this court for consideration.

5. Before adverting to the arguments of the learned counsel for the parties and the decision cited at the bar, it would be convenient to set out the relevant provisions of the Indian I. T. Act, 1922, and the I. T. Act, 1961, in so far as they are material. The provisions to be noticed are as under :

Indian Income-tax Act, 1922

'3. Charge of income-tax-Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year......

4. Application of Act-(1) Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived......

6. Heads of income chargeable to income-tax-Save as otherwise provided by this Act, the following heads of income, profits and gains shall be chargeable to income-tax in the manner hereinafter appearing namely :-

(1) Salaries

(2) Interest on securities

(3) Income from property

(4) Profits and gains of business, profession or vocation

(5) Income from other sources

(6) Capital gains

9. Property-(1) 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 portion of such property as he may occupy for the purpose of any business, profession or vocation carried on by him the profits of which are assessable to tax, subject to the following allowance, namely :-......

12. Other sources :- (1) The tax shall be payable by an assessee under the head 'Income from other sources' in respect of income, profits and gains of every kind which may be included in his total income (if not included under any of the preceding head).

(1A) Income from other sources shall include dividends, and any dividend declared by a company or distributed or paid by it within the meaning of sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (e) of clause (6A) of section 2, shall be deemed to be the income of the previous year in which it is so declared, distributed or paid, as they case may be.

2. (15) `Total income' means total amount of income, profits and gains referred to in sub-section (1) of section 4 computed in the manner laid down in this Act.......'

Income-tax Act, 1961

'2. (45) `Total income' means the total amount of income referred to in section 5, computed in the manner laid down in this Act.

4. Charge of income-tax-(1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year or previous years, as the case may be, of every person......

14. Heads of income-Save as otherwise provided by this Act, all income shall, for the purpose of charge of income-tax and computation of total income, be classified under the following heads of income :

A. Salaries

B. Interest on securities

C. Income from house property

D. Profits and gains of business or profession

E. Capital gains

F. Income from other sources.

22. Income from house property-The annual value of property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purposes of any business or profession carried on by him the profits of which are chargeable to income-tax, shall be chargeable to income-tax under the head `Income from house property'.

56. Income from other sources-(1) Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income-tax under the head `Income from other sources', if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E.

(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following incomes shall be chargeable to income-tax under the head `Income from other sources', namely :-

(1) Dividends......

In this case, the assessment for the two years 1960-61 and 1961-62 would be governed by the provisions of the Indian I. T. Act, 1922. The assessment for the subsequent two years, viz., 1962-63 and 1963-64, would be governed by the provisions of the I. T. Act, 1961. The question is whether the assessee's rental income from the house property, of which she was not the owner, is chargeable to tax under the head 'Income from other sources' under the computing s. 12 of the Act of 1922, or under s. 56 of the Act of 1961, because it cannot be brought to tax as 'income from property' under the computing s. 9 of the Act of 1922, or as 'income from house property' under the computing s. 22 of the Act of 1961.

6. At the outset, we may mention that Mr. Joshi, the learned counsel appearing for the revenue, submitted, and in our opinion rightly, that on the material aspect of the law, the position remains the same under the Act of 1961. According to him, the provisions of the 1961 Act merely make more explicit what was contained in the corresponding provisions of the Act of 1922. He made it clear that whatever interpretation is put on the relevant provisions of the Act of 1922, would a fortiori be applicable to the corresponding provisions of the Act of the Act of 1961. In other words, he submitted that if we hold that the rental income of the assessee cannot be brought to tax as 'income from other sources' under s. 9 of the Act of 1922, the position would not be different under the Act of 1961. For the present, therefore, we would confine our discussion to the relevant provisions of the Act of 1922. Mr Joshi submitted that the words 'income from property', which is one of the heads of income enumerated in s. 6 must be read subject to what is contained in s. 9 Under s. 9 of the Act, 'income from property', of which the assessee may occupy for the purposes of any business, profession or vocation carried on by him, the profits of which are assessable to tax, is chargeable to tax. If, however, the assessee is not the owner, then necessarily, s. 9 would not apply, and the income from such property must be classified as 'income from other sources' and brought to tax under s. 12. He submitted that reading ss. 6 and 9 together, the head of income, viz., 'Income from house property' contained in s. 6 must be read as 'income from property of which the assessee is the owner'. On these premises, he contended that income from property of which the assessee is not the owner is liable to be brought to tax under s. 12 as 'Income from other sources'. According to Mr. Joshi, the case of N. A. Mody : [1966]61ITR428(SC) dealt with the case of business income and the ratio of that decision which applies only to the case of business income cannot be extended to the case of an assessee who receives income from property of which he is not the owner. On the other hand, he submitted that the question before us is covered by the ratio of the Supreme Court decision in S. G. Mercantile Corporation P. Ltd. v. CIT : [1972]83ITR700(SC) .

7. In N. A. Mody's case : [1966]61ITR428(SC) , the majority judgment was delivered by Sarkar C.J., speaking for himself and Mudholkar J., and a dissenting judgment was delivered by Bachawat J. The facts of that case were that the assessee was practicing as an advocate till March 1, 1957, on which date he was elevated to the Bench of the Bombay High Court. Since his elevation to the Bench, he ceased to carry on the profession. As an advocate, he had adopted the calendar year as the accounting year and had kept his accounts on a cash basis. In the years 1958 and 1959, during no part of which he carried on any profession, he received certain moneys on account of fees outstanding for professional work done by him. The question that arose for decision was whether he was liable to pay income-tax on these receipts recovered by him during the accounting year when he was not practicing as an advocate. The court held that the receipts were not chargeable to tax at all, since the receipts were the outstanding dues of professional activity, and as such, they would fall under the fourth head, viz., 'Profits and gains of business, profession or vocation' and were not chargeable to tax because under the computing s. 10, an income received by an assessee who kept his accounts on the cash basis in an accounting year in which the profession had not been carried on at all was not chargeable to tax, nor could such income be brought to tax under s. 12 under the residuary head 'Income from other sources'.

8. As explained in the majority judgment delivered by Sarkar C.J., the scheme of the relevant provisions of the Act is that (p. 430) :

'Section 6 of the Income-tax Act, 1922, specifies six sources or heads of income which are chargeable to tax. In order to be chargeable an income has to be brought under one of these six heads. Section 6 also provides that the chargeability to tax shall be in the manner provided in section 7 to 12B of the Act. Each of these sections lays down the rules for computing income for purpose of chargeability to tax under one or other of the heads mentioned in Section 6. An income falling under any head can only be charged to tax if it is so chargeable under the corresponding computing section.'

9. The scheme underlying ss. 3 to 12B has also been succinctly stated in short as :

'Section 3 charges total income, s. 4 defines its range, s. 6 classifies it, ss. 7 to 12B quantify it.' (See Law and Practice of Income Tax, 1958 Edn., p. 266, by Kanga and Palkhivala)

10. This passage has been quoted with approval by the Supreme Court in K. S. Venkatatraman and Co. (P) Ltd. v. State of Madras : [1966]60ITR112(SC) . Now, on a reading of the decision of the Supreme Court in N. A. Mody's case : [1966]61ITR428(SC) , the following principles clearly emerge :

(i) Several heads of income mentioned in section 6 are mutually exclusive; a particular income can come only under one of them.

(ii If the receipts can be brought under one head of income, i.e., the fourth head of income in section 6, viz., `Profits and gains of business, profession or vocation', they cannot be brought under the residuary head as the heads of income are mutually exclusive.

(iii) Whether an income falls under one head or the other has to be decided according to the common notion of practical men, for, the Act does not provide any guidance in the matter. In other words, the heads of income must be decided on the nature of the income by applying practical common notion and not by reference to the assessee's treatment of income.

(iv) Whether an income is included in any of the heads other than the residuary head would depend on what kind of income it is, and if the income is the profit or gain of profession, it cannot come under section 12, for, section 12 does not say that an income which income which escapes taxation under a preceding head will be computed under it for chargeability to tax.

(v) An income has to be brought under one of the heads in section 6 and can be charged to tax only if it is so chargeable under the computing section corresponding to that head. Income which comes under the fourth head, that is, professional income, can be brought to tax only if it can be so done under the rules of computation laid down in section 10. If it cannot be so brought to tax, it will escape taxation even if it be included in the total income under section 4. The expression 'total income' in section 3 has to be understood as it is defined in section 2 (15). Under that definition, total income means 'total amount of income, profits and gains referred to in sub-section (1) of section 4 computed in the manner laid down in the Act', that is computed for the purpose of chargeability under one of the sections from section 7 to section 12B.

11. It is no doubt true that in N. A. Mody's case : [1966]61ITR428(SC) , the Supreme Court was required to consider the case of business income and the present case concerns the assessee's income from property. But, in our view, the ratio of that case would equally hold good in this case also as the principle to be applied cannot be different. As laid down by the Supreme Court, one must first determine the head of income. If the kind of income is such as can fall under one of the specific heads of income other than the residuary head, then such income can be brought to tax only under the corresponding computing section corresponding to that head. The fact that the conditions laid down in the computing section are not fulfilled and for that reason such income cannot be chargeable to tax does not entitle the revenue to fall back on the residuary head of income and bring such income to tax under the computing s. 12.

12. We see no difference whatsoever between a case of business income which falls under the specific head of income in s. 6 and the income from property which falls under the specific head of the same section. In the first case, the income could to be brought to tax because the conditions of s. 10 are not satisfied while in the latter case the income from property cannot be brought to tax by reason of the condition mentioned in s. 9 not being fulfilled, viz., the condition that the assessee must be the owner of the property is not fulfilled. In either of the two cases, the provisions of s. 12 will not be attracted. The distinction that is sought to be made by the learned counsel that the Supreme Court dealt with a case of professional income, while we are concerned with a case of income from property is, to our mind, no distinction at all on principle. If the contention of the learned counsel that so far as the income from property which cannot be made chargeable to tax under the computing s. 9 because the assessee is not the owner becomes chargeable to tax under the residuary head as 'Income from other sources' under s. 12 is accepted, on the same reasoning, it must logically follow that if the income of an assessee from profession is not chargeable under the computing s. 10 because he had kept his accounts on the cash basis in the accounting year in which the profession had not been carried on, such income must necessarily come for taxation under the computing s. 12 as 'income from other sources'. Such a result would be directly contrary to the ratio laid down in Mody's case. In our view, there is no valid basis for making a distinction between the case of income from property and the case of income from profession as is sought to be done by the learned counsel. To our mind, the ratio of the decision in N. A. Mody's case : [1966]61ITR428(SC) , is that one has to first determine the kind of income under the classifying s. 6. Once this is done, then it has to be quantified only under the corresponding section and subject to the conditions laid down in that section and cannot be brought to tax under the residuary head under s. 12.

13. In Mody's case, an argument was advanced before the Supreme Court that the professional receipts have to be included in the total income stated in s. 4 and since they do not fall under the exceptions mentioned in that section, they must be liable to tax, and, therefore, they must be considered as income under the residuary head as they could not otherwise be brought to tax. Rejecting this contention, the Supreme Court observed (p. 432)

'While it is true that under section 4 the receipts are liable to be included in the total income and they do not come under any of the exceptions, the contention is based on the assumption that whatever is included in total income under section 4 must be liable to tax. We find no warranty for this assumption. Section 4 does not say that whatever is included in total income must be brought to tax. It does not refer at all to chargeability to tax. Section 3 states that `Tax... shall be charged.... in accordance with, and subject to the provisions of, this Act in respect of the total income'. This section does not, in our opinion, provide that the entire total income shall be chargeable to tax. It says that the chargeability of an income to tax has to be in accordance with and subject to the provisions of the Act. The income has, therefore, to be brought under one of the heads in section 6 and can be charged to tax only if it is so chargeable under the computing section corresponding to that head. Income which comes under the fourth head, that is, professional income, can be brought to tax only if it can be so done under the rules of computation laid down in section 10. If it cannot be so brought to tax, it will escape taxation even if it be included in total income under section 4. Furthermore, the expression `total income' in section 3 has to be understood as it is defined in section 2 (15). Under that definition, `total income' means `total amount of income, profits and gains referred to in sub-section (1) of section 4 computed in the manner laid down in this Act', that is, computed for the purpose of chargeability under one of the sections from section 7 to section 12B. The receipts, in the present case, as we have shown, can only be computed for chargeability to tax, if at all, under section10, as income under the fourth head. If they cannot be brought to tax by computation under that section they would not be included in `total income' as that word is understood in the Act for the purpose of chargeability. That all income included in total income is not chargeable to tax may be illustrated by referring to income from the source mentioned in the third head in section 6, namely, `Income from property'. The corresponding computing section is section 9 which says that tax shall be payable on income under this head in respect of the bona fide annual value of property. It is conceivable that income actually received from the property in a year may exceed the notional figure. The excess would certainly be liable to be included in total income under section 4. It however cannot be brought to tax as income under the head `Other sources' : See Salisbury House Estate Ltd. v. Fry [1930] 15 TC 266 . It is an income which cannot be taxed at all though it is included in total income as defined in section 4.'

14. The reference to a case of income from property which cannot be brought to tax under the computing s. 9 as an illustration in the above passage is significant. As observed by the Supreme Court, in a given case, only a portion of the income from property in a year may be chargeable to tax as income under the computing s. 9. Although the excess income is liable to be included in the total income mentioned in s. 4, still it cannot be brought to tax as income under the head 'Income from other sources', and it is an income which cannot be taxed at all. The scheme is the same for each head, as is seen from the terminology used in each one of the computing ss. 7 to 12B, viz., the tax shall be payable by an assessee under the head 'Interest on securities', or under the head 'Income from property' and so on. In our view, the correct approach on the setting of the relevant provisions would be to first classify the item under consideration under the appropriate head of income as mentioned in s. 6. For this purpose, the character or the nature of income has to be determined. Further, the nature of income must be decided according to common notions of practical men because the Act does not provide the guidelines. In other words, the particular head of income mentioned in s. 6 must be understood in the normally accepted sense. In the present case, it cannot disputed for a moment that the income in question is income from property as commonly understood notwithstanding the fact that the assessee was not the owner of the property. Having thus ascertained the classification of the head of income as 'Income from property' the rental income received by the assessee must fall under the third head in s. 6. The next step is to see whether it can be brought to tax under the corresponding computing computing section, viz., s. 9. It is common ground that the income cannot be brought to tax under s. 9. It is common ground that the income cannot be brought to tax under s. 9 because the assessee was not the owner during the relevant period. But merely because it cannot be brought to tax under the computing section under the head 'Income from property', it is impermissible to make the income chargeable to tax under s. 12 under the residuary head of income, viz., 'Income from other sources'. The character or the nature of income does not cease to be income from property because of its non-chargeability under the computing s. 9. The crucial matter is the classification. Once the nature of the income is classified under a particular head, one has to look only to the corresponding computing section for the purpose of chargeability to tax. The argument that whatever income from property cannot be brought to tax under the computing s. 9, can be brought to tax under the residuary head, may lead to absurd results. For example, under the computing s 9, certain allowance are allowed as deductions and tax is not liable to paid on that portion of income. Taking to its logical conclusion, the argument of the learned counsel for the revenue, if accepted, may lead to the result that such income can be brought to tax under the residuary head.

15. In S. G. Mercantile Corporation P. Ltd. : [1972]83ITR700(SC) which has been relied on by Mr. Joshi, the facts were that one of the objects of the assessee-company as specified in the memorandum of association was to take on lease or otherwise acquire and to hold, improve, lease or other wise dispose of land, houses and other real and personal property and to deal with the same commercially. Shortly after 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 remodeling and repairing the structure on the side. It was also given the right to sublet the different portions. The activity of the company during the period covered by the assessment years 1956-57 to 1958-59 consisted of developing the property and letting out portions thereof as shops, stalls and ground spaces to shopkeepers, stall-holders and daily casual market vendors. The question that arose for consideration was whether the appellant's income from subletting the stalls was assessable as business income under s. 10 of the Act of 1922, or as income from other sources under s. 12. Whereas the stand of the company was that the income on subletting the stalls was business income and as such it fell under the head 'Profits and gains was from business income and as such it fell under the head 'Profits and gains from business or profession or vocation' and was chargeable to tax under the computing s. 10, the contention of the department was that the income was chargeable to tax under the computing s. 12 as the income falling under the residuary head 'Income from other sources'. The sole question, therefore, that fell for the consideration of the Supreme Court was whether the rental income from stalls received by the company should be classified as business income under the specific head 'Profits and gains from business or profession or vocation', or under the residuary head as income from other sources. If the income was classifiable under the specific head of 'Business income',then s. 10 applied; if not, the provisions of s. 12 would be attracted.

16. Relying on certain observations in the case of S. G. Mercantile Corporation P. Ltd. : [1972]83ITR700(SC) it was contended by Mr. Joshi that, as far as the assessee's income from property, of which he is not the owner, is concerned, such income, being not chargeable under s. 9, has to be brought to tax under under s. 12 as 'Income from other sources'. Although read in isolation, some of the observation of the Supreme Court in the Mercantile Corporation's case might support the submission of Mr. Joshi, on a closer perusal of the judgment, we are not inclined to accept this submission. It appears that in that case, there being no finding that the company was the owner of the property in question or any part thereof no reference was made to s. 9 of the Act in the assessment proceedings and both sides agreed that the question of making the assessment against the company for computation under s. 9 of the Act did not arise. The stand of the company was that the assessment in respect of the income from the property in question should be made under s. 10, while, according to the department, the assessment should be under s. 12 of the Act. While dealing with this question, the supreme Court made the following observations (p. 705) :

'Section 10 of the Act deals with income from business and the material portion with which we are concerned is given in sub-section (1) of that section. According to that sub-section, the tax shall be payable by an assessee under the head Profits and gains of business, profession or vocation' in respect of the profits and gains of any business, profession or vocation carried on by him.'Business' according to section 2 (4) of the Act, includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture. Section 12 of the Act deals with income from other sources. Sub-section (1) of that section reads as under :

` (1) The tax shall be payable by an assessee under the head 'Income from other sources' in respect of income, profits and gains of every kind which may be included in his total income (if not included under any of the proceeding heads).'

17. Section 12 deals with the residuary head of income and applies to all such taxable income, profits and gains as are not covered by preceding specific heads. The residuary head of income can be resorted to only if none of the specific heads is applicable to the income in question it comes into operation only after the preceding heads are excluded.

18. It is, therefore, manifest that section 12 of the Act can be invoked in the present case only if we exclude the applicability of section 10 by holding that the income of the appellant-company from the property in question is not income from business. The definition of the word `business' as given in section 2 (4) and reproduced above shows its wide amplitude and we agree with Mr. Chagla that it can embrace within itself dealing in real property as also the activity of taking a property on lease, setting up a market thereon and letting out the shops and stalls in the market. The important question which arises in the latter case is whether the acquisition of the property on lease and letting out of the shops and stalls was in the course of investment or whether it was essentially a part of the business and trading operation of the assessee. The paramount consideration which would weigh is whether the acquisition of the property was by way of investment and whether the property was let out because of the assessee having a title in the same or whether the acquisition and letting out of the property constituted the business and trading activity of the assessee. The question as to whether the above activity is being carried on by an individual or a company, and in the latter case, the further question as to whether the carrying on of the said activity was the object of the incorporation of the company as given in the memorandum of association would also have some relevance.'

19. This passage indicates an approach similar to the one taken in N. A. Mody's case : [1966]61ITR428(SC) . This case also reiterates the principle that as regards the chargeability to tax under the computing section, the residuary head of income can be resorted to only if none of the specific heads is applicable to the income in question; and it comes into operation only after the preceding heads are excluded. Even in the case of income received from a property, what is material to find out is the nature or character of he income from such property. If the income arises essentially as part of a business or trading activity of the assessee, then the character of such income would naturally be 'business income' Applying the test for determining the particular head of income under s. 6 as laid in Mody's case, the question whether an income falls under one head or the other has to be decided according to common notions of practical men. If the income arises out of a business or trading activity, the nature of the income by applying the practical common notion could be treated as business income and not income from property as commonly understood. In Mercantile Corporation's case : [1972]83ITR700(SC) , a reference is made to another decision of the Supreme Court in Karanpura Development Co. Ltd. v. CIT : [1962]44ITR362(SC) . The following observations in that case are relevant :

'As has been already pointed out in connection with the other two cases where there is a letting out of premises and collection of rents the assessment on property basis may be correct but not so, where the letting or sub-letting is part of a trading operation. The dividing line is difficult to find; but in the case of a company with its professed objects and the manner of its activities and the nature of its dealings with its property, it is possible to say on which side the operations fall and to what head the income is to be assigned.

Ownership of property and leasing it out may be done as a part of business, or it may be done as landowner. Whether it is the one or the other must necessarily depend upon the object with which the act is done. It is not that no company can own property and enjoy it as property, whether by itself or by giving the use of it to another on rent. Where this happens, the appropriate head to apply is `income from property' (section 9), even though the company may be doing extensive business otherwise. But a company formed with the specific object of acquiring properties not with the view to leasing them as property but to selling them or turning them to account even by way of leasing them out as an integral part of its business, cannot be said to treat them as landowner but as trader.'

20. These observations also indicate that the primary question that must be decided first is the nature of the income. The nature of income from a property referable to the trading activity may be commonly understood as income from business which will not be the case when the letting is because a person has title or has a right to let out the property. In the latter case, as commonly understood, it would be treated as income from property. Once the income is classified under a particular head, then naturally one has to look to the corresponding computing provision for its chargeability to tax,. Mr. Joshi, however, seeks to draw support from the following observations in Mercantile Corporation's case : [1972]83ITR700(SC) :

'The respondent can also have not much support from the decision of East India Housing and Land Development Trust Ltd. v. Commissioner of Income-tax : [1961]42ITR49(SC) , because what was decided therein was that in the case of income from landed property by the owner-company, the income would fall under the specific head described in section 9 and not under section 10 even though the company had been incorporated with the object of buying and developing landed property and promoting a market thereon. Section 9, as mentioned earlier, does not apply to the present case because the appellant is not the owner of the property in question. As such, there arises no question in this case of the exclusion of section 10 on the ground that section 9 is the specific head. In the instant case, the revenues relies not upon the specify head given in section 9 but upon the residuary head given in section 12 of the Act. It is plain that the considerations which would weigh for applying section 9 on the ground of being a specific head would not hold add for invoking section 12 which can be into the picture only if all the preceding head of income, including business income, as given in section 10, are ruled out. Where, as in the present case, the income can appropriately fall under section 10 as being business income, no resort can be made to section 12 of the Act.'

21. In our view, the reference to s. 9 in the above quoted paragraph has to be read in the context of the question posed, viz., whether s. 10 or s. 12 applies to the income in question. It is only by implication that Mr. Joshi contends that in the Mercantile Corporation case : [1972]83ITR700(SC) , the Supreme Court had laid down that where s. 9 become inapplicable because the assessee is not the owner of the property, such income has to be brought under the residuary head under s. 12. As the income in that case was treated as a business income, the only question that arose for consideration was whether the corresponding computing s. 10 is attracted or s. 12, which applies to the 'Income from other sources' is attracted. What Mr. Joshi wants to contend is that the observations in the judgment suggest that is was because s. 9 was excluded on the ground that the assessee was not the owner that the court proceeded to consider whether the income could be brought to tax under the computing s. 10 corresponding to another head of income, viz., 'Business income'. In other words, the contention was that but for the fact that the assessee was not the owner, s. 9 and not s. 10, would have been applied. In the absence of any clear observations to this effect, we unable to hold that such a ratio is discernible from the incidental observation in the judgment relied on by Mr. Joshi. It just also be seen that even in the Mercantile Corporation case : [1972]83ITR700(SC) , the Supreme Court did not apply a different test than the one laid down in N. A. Mody's case : [1966]61ITR428(SC) . Assuming that the observations of the Supreme Court in Mercantile Corporation case support the contention of Mr. Joshi, that the head, viz., 'Income from property, is the owner and if the assessee is not the owner, such income has to be brought under the residuary head, these observations are obiter having regard to the fact that the precise question before us did not arise in that case for the consideration of the Supreme Court. No doubt, ordinarily, the obiter dicta of the Supreme Court is not only entitled to respect but also is binding on this court. This, however, would not be the position where the obiter dicta contradicts the ratio laid down by the Supreme Court. In such a situation this court will have the respect have to follow the decision which lays down the ration in preference to the obiter dicta. As indicated earlier, the present case is fully covered by the ration laid down by the Supreme Court in N. A. Mody's case : [1966]61ITR428(SC) . According to the ratio of that decision, the first step is to classify the item of income under a proper head enumerate is s. 6. For that purpose, the nature of the income has to be ascertained. As the different heads of income mentioned in s. 6 are not defined in the Act, whether the income falls under one head or the other has to be decided according to common notions of practical men. In the present case, it is not and cannot be disputed that the character or the nature of the assessee's rental income as commonly understood is 'Income from property' notwithstanding the fact that the assessee was not the owner thereof. It, therefore, squarely falls under the head 'Income from property' mentioned in s. 6. As the several heads of income mentioned in s. 6 are mutually exclusive, a particular income can come only under one of them. Therefore, the income of the assessee in the present case having once been classified under the head 'Income from property', there is not question of reclassifying such income under the residuary head. The next principle laid down by the Supreme Court in N. A. Mody's case is that after the income is thus classified under a particular head, such income can be brought to tax only under the computing section corresponding to that head of income. If it cannot be so brought to tax, it will escape taxation. Applying this principle again, the assessee's income from property in the present case cannot be brought to tax under under s. 9 because he is not the owner of the property. In the other words it cannot be brought to tax because the conditions laid down in s. 9 not fulfilled; but that is no ground for reclassifying the income under the residuary head, and then charge the income to tax under s. 12. In N. A. Mody's case : [1966]61ITR428(SC) the income was due to professional activity and fell under the 4th head, viz., 'Profits and gains of business, profession or vocation'. The corresponding computing section for this head of income is s. 10. However, such professional income could not be brought to tax as the condition for the chargeability under s. 10 was not satisfied. The Supreme Court clearly laid down that s. 12 could not be resorted to merely because the income from profession could not be taxed by reason of non-fulfillment of the conditions laid down under that head. In our view, the same principles must govern the fact of the present case. Whereas, in N. A. Mody's case : [1966]61ITR428(SC) , the head of income was the fourth head, viz., 'Profits and gains of business, profession or vocation', in the case before us, the head of income is the third head, viz., 'Income from property'. On principle, it should not make any difference to the facts of the present case and s. 12 is not attracted. On the other hand, it would be directly contrary to the ratio laid down in N. A. Mody's case, if we were to apply the residuary head to the present case.

22. The matter can be looked at from another angle also. The liability to pay tax on income from house property is of the owner as is mentioned in s. 9. Further, under s. 9, the payable by the assessee under the head 'Income from property' is in respect of the bona fide annual value of the property. If the contention that the rental income in the case must be brought to tax under s. 12, it would result in the same property being taxed twice. While the income from property received by the assessee who is not the owner would be chargeable to tax under s. 12, the owner of the property would also be liable to pay tax on income under s. 9 in respect of the bona fide annual value of the property. It is well settled that the owner's liability to pay tax under s. 9 does not depend on his capacity to receive the bona fide annual value. In this connection, it would be pertinent to refer o a decision of the Division Bench of this court consisting of Kania, Actg., C.J. and Chagla J. in D. M. Vakil v. CIT. : [1946]14ITR298(Bom) . The facts in that case were that a lady appointed her husband, son and daughters as trustees under her law will and trustees under her last will and testament. The will provided that during the lifetime of the husband of the testatrix, he, his son and one daughter, and such of the children and grandchildren of the testatrix, as might be invited, and the right to occupy a bungalow free of rent. The trustees contended that they could not be said to have realised any income whatsoever from the rust property which could be computed under s. 9 and they were, therefore, not liable to pay any income-tax in respect of that property. The Division bench negatived this contention and held that the annual value of the property should be included in the assessment of the trustees under s. 9. Chagla J., as he then was,. concurring with Kania, Actg., C.J. as he then was, observed thus (p. 304) :

'It it true that under the Indian Income-tax Act, the only thing that can be taxed is income and nothing else. The charging section is section 3; it charges the total income of an assessee; and 'total income' is defined in section 2 (15) as the total amount of income, profits and gains computed in the manner laid down in this Act. Before income can be computed in the manner laid down in the Act there must be income to which the mode of computation can be applied. Now, it cannot be disputed that income from property or how is it to be compute And for that purpose one must turn to section 9 of the Indian Income-tax Act. The scheme of the Income-tax is that the income from property which is made liable o tax is not the actual income but an artificial or statutory income as defined in section 9 and that artificial or statutory income is the bona fide annual value of the property. Therefore, the fact that the owner of the property receives no income in fact or even that there is no possibility of his receiving an income is irrelevant or the consideration of the question as to what the artificial or statutory income of an assessee is from property. The test and the only test laid down in the Act is the bona fide annual value of the property, and in the case of every property that test can be complied with and the annual value of the property can be determined. Therefore, what the Act does is to make the annual rental value of the property the income of the owner of that property and it is that income that has got to be taxed under the Act.'

23. A similar view has been taken by the Calcutta High Court in the case of CIT v. Ganga Properties Ltd. : [1970]77ITR637(Cal) , where the facts were somewhat similar to the present case. In that case, under an oral agreement dated March 27, 1956, the assessee agreed to sell a property to another person and in accordance with this agreement delivery of possession wan given to the purchase on March 29, 1956. The purchaser paid the whole of the consideration money on the 16th April, 1956. the deed of conveyance transferring the property, however, was executed only on 17th march, 1958. On a reference, the Calcutta High Court held, (i) that in the case of a sale of immovable property a registered document is necessary to give effect to the sale and the sale takes effect only from the date of execution of the document; (ii) in Indian law beneficial ownership is unknown; there is no one owner, namely, the legal owner, both in respect of vendor and purchaser, and trustee and cestui que trust; and (iii) the expression 'Income from property' used in ss. 6 and 9 of the Indian I. T. Act, 1922, refers to the income of the legal owner of the property and he is the only person assessable to tax on the basis of the bona fide annual value thereof. I would, therefore, follow that in the case before us the owner should be chargeable o tax under the head 'Income from property' under s. 9 in respect of the bona fide annual value of the property.

24. If Mr. Joshi's contention is accepted, it would mean that in respect of the income from the same property, the assessee would be chargeable to income-tax under s. 12 also. this would lead to double taxation in respect of the income from the same property although the basis of computation of income may be different. There is no express provision in the Act which permits such double taxation. As observed by the Supreme Court in Laxmipat Singhania v. Cit : [1969]72ITR291(SC) , it is the fundamental use of law of taxation that, unless otherwise expressly provided, income cannot be taxed twice. In the absence of clear provisions to that effect, it would be impermissible for the revenue to bring to tax the income from the house property in the hands of the purchase (assessee in this case) under s. 12 and also to charge the owner under s. 9 in respect of the bona fide annual value of the property.

25. We asked Mr. Joshi whether the owner of the property in this case. has been taxed under s. 9 in respect of the bona fide annual value of the property in question. He, however, was unable to give any information. Whatever that may be, assuming that the owner who is liable to be assessed to tax under s. 9 has not been so taxed, that is no ground for invoking s. 12 against the assessee. In view of the above discussion, it would follow that the assessee's rental income from the house property of which he is not the owner, for the assessment years 1960-61 and 1961-62, cannot form part of the assessable income of the assessee under the residuary head, viz., 'Income from other sources' under s. 12, which is governed by the Indian I. T. Act, 1922.

26. The next question is about the assessability of the rental income in question for the assessment years 1962-63 and 1963-64. These assessment years are governed by the I. T. Act, 1961. As indicated earlier, Mr. Joshi did not dispute before us that the scheme of the relevant provisions remains unaltered ever under the new Act. What was contended by Mr. Joshi was that even under the old Act of 1922 the assessee's rental income of property of which she was not the owner is chargeable to tax under the residuary head as 'Income from other sources' under s. 12 of the old Act. It was the contention of Mr. Joshi that the intention underlying the scheme of the new Act is to make explicitly clear what was intended and provided under the relevant corresponding provisions of the old Act. We have already rejected the contention of Mr. Joshi that the income from property of which the assessee is not the owner is chargeable to tax under the residuary head,. It would, therefore, follow on the sub-missions make by Mr. Joshi that even under the new Act, the income from property of which the assessee is not the owner cannot be brought to tax under the residuary head 'Income from other sources' under s. 56 of the Act and the rental income of the assessee for the years 1962-63 and 1963-64 would also escape taxation. In view of the stand taken by Mr. Joshi, it would have been unnecessary for us to consider the matter further. However, Mr. Joshi has drawn our attention to a decision of learned single judge of the Calcutta High Court in Mrs. Roma Bose v. ITO : [1974]95ITR299(Cal) . There, the facts were that Subodh Kumar Bose, the deceased husband of the assessee, Mrs. Roma Bose, was a barrister practicing in the Calcutta High Court. He died on May 19,1963. He had maintained his accounts on cash basis. At the time of his death, certain amounts were due and owing by different solicitors and clients to him to be received on account of the professional services rendered by him. These arrears of fees were realised by his widow, Mrs. Roma Bose in March, 1965. The question was whether the said money realised in the accounting years subsequent to the death of Subodh Kumar Bose was chargeable to income-tax in the assessment year relevant to the accounting year under the residuary head 'Income from other sources' under s. 56 of the new Act. On behalf of the assessee, reliance was placed on the decision of the Supreme Court in Nalinikant Ambalal Mody v. S. A. L. Narayan Rope, CIT : [1966]61ITR428(SC) . It must be noticed that under the new Act, a significant departure has been made by incorporating a new s. 176 so far as the professional and business income is concerned. Section 176, inter alia, provides :

'(1) to (3).........

(3A) Where any business is discontinued in any year, any sum received after the discontinuance shall be deemed to be the income of the recipient and charged to tax accordingly in the year of receipt, if such sum would have been included in the total income of the person who carried on the business had such sum been received before such discontinuance.

(4) Where any profession is discontinued in any year on account of the cessation of the profession by, or the retirement or death of, the person carrying on the profession, any sum received after the discontinuance hall be deemed to be the income of the receipt, if such sum would have been included in the total income of the aforesaid person had it been received before such discontinuance.'

27. The revenue principally relied on these provisions in support of its case that the professional income of the deceased was chargeable to tax under the residuary head. It is obvious that in view of these clear provisions so far as the professional and business income is concerned, there is no question of applying the principles laid down in N. A. Mody's case : [1966]61ITR428(SC) . In rejecting the contention of the assessee, who relied on the decision in N. A. Mody's case, the learned single judge not only relied on the specific provisions of s. 176(4) but also further proceeded to hold that the scheme of the corresponding relevant provisions of the new Act was different from the one under the old Act. However, with respect, it is not possible to subscribe to the view expressed by the learned judge that the ratio decidendi of the decision in N. A. Mody's case no longer holds good by reason of a material change in the scheme of the relevant provisions. The learned single judge has expressed the view in the following words (PP. 305, 306 of 95 ITR);

'From a comparison of section 6 of the old Act with section 14 of the new Act, it appears that under section 14 of the new Act income and not heads of income as under section 6 of the old Act, has been made chargeable to income-tax.

Clause (i) of section 28 of the new Act has defined the particulars of income which shall be taxed under the head `Profits and gains of business or profession'. Thus section 28 of the new Act makes the income under the said head chargeable to tax while section 10 of the old Act made not the income but the head of income mentioned therein, viz., `Profits and gains of business or profession' chargeable to tax.....

Under section 12 of the old Act income which would not be included under any of the heads mentioned in sections 6 (i) to 6(iv) and 6 (vi) of the old Act would be included under the head `Income from other sources', section 6 (v) of the said Act. If an income falls into any of the category o class of income enumerated in sections 6 (i) to section 6 (iv) and section 6 (vi) such income could not be included under the residuary head mentioned in section 6 (v) of the old Act.

If an income cannot be charged to income-tax under any of the heads mentioned in clauses A to E of section 14 of the new Act the same shall be chargeable to income-tax under the head `Income from other sources' mentioned in clause F of the said section (2)(ii), under the express provision of section 56(1) of the new Act.

Thus under the new Act money received by a person on account of profits or gains of a profession which had been discontinued by him even prior to the year previous to that when he received the same would be chargeable to tax under the provisions of the new Act mentioned above'.

28. On a comparison of the relevant provisions, we do not think that there is any material difference in the scheme of the relevant provisions under the two Acts. The sections have been rearranged. Although different words are used, the contents as well as the intention remain the same. There is no difference between the two charging sections, viz., s. 3 of the Act of 1922 and s. 4 of the Act of 1961. There is no material difference between the wording of s. 6 of the old Act and s. 14 of the new Act. Section 14 corresponds to s. 6. We seen no difference between the two provisions except that a different language is used. Both the sections are intended to classify the income under different heads. Section 14 also classifies the income under different heads for the purposes of charging the income-tax as was the position under s. 6 of the old Act. As regards the head of income, viz., 'Income from other sources', the computing section is s. 56 of the new Act which corresponds to s. 12 (4) of the old Act. the same scheme, which is noticed in s. 12 (1A), is also noticed in s. 56(1) and (2). What was contained in s. 12 is now incorporated in ss 56 to 59 of the new Act. We are satisfied that the provisions of the new Act have made no difference whatsoever in the scheme of the relevant provisions regarding chargeability to tax and the principles which applied to the provisions of the old Act would still remain valid.

29. Mr. Dastoor has also drawn our attention to the statement of objects and reasons appended to the Income-tax Bill, 1961. The notes to the relevant clause of the bill indicate that the original scheme as it obtained under the Act of 1922 regarding the chargeability to tax is maintained in the Act of 1961. The changes made in the relevant corresponding provisions are merely verbal and clarificatory in nature. We are aware of the well-settled principles on the construction of a statute that the statement of objects and reasons is not admissible as an aid to the construction of a statute and a reference is made to it only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extend and urgency of the evil which he sought to remedy. (See State of West Bengal v. Subodh Gopal Bose : [1954]1SCR587 . It would be useful to refer to the clauses for the limited purpose of ascertaining the purpose of introducing the changes suggested. Section 14 of the new Act is couched in words identical to those in cl. 14 of the Bill. The note on cl. 14 of the Bill reads :

'This corresponds to section 6 of the existing Act. The opening words of the section have been modified so as to make it clear that the section merely classifies the chargeable income in different heads for the purpose of computation of total income.'

30. Now, as far as the provisions of s. 14 of the new Act are concerned, it appears that in Mrs. Roma Nose v. ITO : [1974]95ITR299(Cal) , the Calcutta High Court assumed that it is a charging section, which, according to it, was not the case with the corresponding s. 6 of the old Act. With respect, this is not the position. As indicated earlier, s. 4. of the new Act, which corresponds to s. 3, is the charging section. Section 14 merely classifies the heads of income for the purpose of computation of the total income as was the position under s. 6 of the old Act. The charging section under the new Act is s. 4 while s. 14 merely classifies the chargeable income under different heads. Sections 22 to 27 of the new Act is a group of sections dealing with the income from house property. Section 22 of the new Act is a reproduction of s. 9 (1) of the old Act except the partition relating to allowances and the deletion of the word 'bona fide' occurring in s. 9 (1). This deletion of the word 'bona fide' obviously does not make any difference so far as the question with which we are concerned. Here again, cl. 22 of the Bill reads :

'In this clause, the words 'bona fide' before 'annual value' occurring in the existing section have been omitted as unnecessary as recommended by the Law Commission.'

31. It may also be noticed that s. 56(1) is the same as s. 12 (1) of the old Act. The changes made are verbal. The notes on clauses 56 to 59 of the Bill reads as follows :

'Clauses 56 to 59-These clauses correspond to the existing section 12 dealing with income taxable under the head 'Other sources'. The changes made here are merely verbal;.

Clause 56 : Sub-clause (1)-Sub-section (1) of existing section 12 is reproduced here with slight verbal changes.

Sub-clause (2)-Item (i) corresponds to existing section 12 (1A).

Items (ii) and (iii) are in from new though sub-sections (3) and (4) of existing section 12 imply that such income is taxed under the residuary head. This implication has been expressly stated here.'

32. On a reading of the corresponding provisions of the two Acts, we are unable to share the view taken by the Calcutta High Court that the scheme of the relevant provisions under the two Acts is materially different. The important consideration which seems to have weighed with the Calcutta High Court is the assumption that s. 14 of the new Act is the charging section unlike its counterpart, viz., s. 6 of the old Act, which was the classifying section. With respect, it is clear to us that s. 4 and not s. 14 merely classifies the income. (If that is so, then it would follow that the prior decidendi of the decision in N. A. Mody's case : [1966]61ITR428(SC) would still hold good and be applicable to the present case. The principles laid down in that case would equally apply to the assessment years which are governed by the new Act. We may also observe that while the Legislature thought it fit to incorporate the deeming provisions regarding the business and professional income, no such provision relating to the income from property has been incorporated in the new Act. The scheme of the relevant provisions in the new Act remains the same; only an exception is cared out by incorporating the deeming provisions of s. 176(3A) and sub-s. (4) so far as business or professional income is concerned. But for these deeming provisions, the ratio in N. A. Mody's case : [1966]61ITR428(SC) would have been applicable to business or professional income even under the Act of 1961.

33. In the view that we have taken, even for the assessment years 1962-63 and 1963-64 go earned by the new Act, the assessee's income from property, of which she was not the owned, was not chargeable o tax in her hands as an income under the head 'Income from other sources' under s. 56 of the new Act.

34. We, therefore, answer the question referred to us in the negative. The applicant to pay the costs of the reference to the respondent.


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