l Appeals Nos 1970 to 1973 of 1968
Appeals from the judgment and order dated September 20 1967 of the Delhi High Court in Income tax Reference Nos 2 and 3 of 1967
VC Mahajan and H K Puri for the appellant in all the appeals VS Desai R N Sachthey and B D Sharma for the respondent in all the appeals
The Judgment of the Court was delivered by Hegde J
In these appeals by certificate the only question arising for decision is  whether on the facts and in the circumstances of the case the assessee
continued to be the owner of the property for the purposes of computation of income under section 9 of the Income tax Act 1922 to be hereinafter referred to as the Act
A Full Bench of the Delhi High Court speaking through section K Kapur J answered that question in the negative
Being dissatisfied with that decision the assesses has brought these appeals
Now turning to the facts of the case the concerned assess ment years are 1952 53 1955 56 and 1956 57 the relevant accounting periods being financial years ending March 31 1952 March 31 1955 and March 31 1956
The assesses is a registered 641 firm deriving income from interest on securities property business and other sources
Sometime In the year 1946 it purchased the Nedous Hotel in Lahore for a sum of Rs  46 lakhs
For that purpose it raised a loan of Rs 30 lakhs from Ms Bharat Bank Ltd Lahore and a loan of Rs 18 lakhs from the Raja of Jubbal
The loan taken from the bank was partly repaid but as regards the loan taken from the Raja the assessee came to an agreement with the Raja under which the Raja accepted a half share in the said property in lieu of the loan advanced and also 13rd of the outstanding liability of the bank
This arrangement came into effect on November 1 1951
After the creation of Pakistan declared an evacuee property and consequently vested in the Custodian in the Pakistan
In its return for the relevant assessment years the assessee claimed losses of Rs 100723
Rs 116599 and Rs 116599 respectively but showed the gross annual letting
value from the said property at Nil
The loss claimed was stated to be on account of interest payable to the bank
Since the property in question has vested in the Custodian of Evacuee Property in Pakistan the Income tax Officer held that no income or loss from that property can be considered in the assessee s case
He accordingly disallowed the assessees claim in respect of the interest paid to the bank
The Appellate Assistant Commissioner confirmed the order of the Income tax Officer
In second appeal the Tribunal came to the conclusion that the assessee still continued to be the owner  of the property for the purpose of computation of loss
The Tribunal held that the interest paid is a deductable allowance under section 91iv of the Act
In arriving it that conclusion the Tribunal relied on its earlier decision in the case of the assessee in respect of the assessment year 1951 52
thereafter at the instance of the assessee the Tribunal submitted the question set out earlier
Ile High Court on an analysis of the various provisions of the Pakistan Administration of Evacuee property Ordinance 1949 XV of 1049 to be hereinafter erred to as the Ordinance came to the conclusion that for the purpose of section 9 of the Act the assasee cannot be considered as he owner of that property
It was urged by Mr V C Mahajan learned Counsel for the assessee that the High Court erred in opining that the assessee was not the owner of the property for the purpose of section 9 of the Act
According to him the property vested in the Custodian only for the purpose of administration and the assessee still continued to be its owner
He contended that the expression owner means the person having the ultimate right to the property
He further contended that the so long as the assessee had a right to that 7 L3Sup
CI72 property in whatever manner that right might have been hedged in or restricted he still continued to be the owner
On the other hand it was contended on behalf of the Revenue that the Incometax is concerned with income gains and profits
Therefore for the purpose of that Act the owner is that person who is entitled to the income
According to the Revenue the word owner in section 9 refers to the legal ownership and not to any beneficial interest in the property
For deciding the question whether the assessee was the owner of the property for the purpose of section 9 of the Act during the relevant accounting years we have to look to the provisions of the Ordinance
Let us first take a survey of the relevant provisions of the Ordinance and thereafter analyse the effect of those provisions
The long title of the Ordinance says that it is an Ordinance to provide for the administration of the evacuee property in Pakistan and for certain matters incidental thereto
The preamble says that whereas an emergency has arisen which renders it necessary to provide for the administration of evacuee property in Pakistan and for certain matters incidental thereto
Section 61 provides that all evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the 1st day of March 1947
Section 9 gives Dower to the Custodian to take possession of the evacuee property
Section 11 provides that any amount due to an evacuee or payable in respect of any evacuee property shall be paid to the Custodian by the person liable to pay the same and the payment to the Custodian discharges the debtor s liability to the extent of the payment made
Section 12 prescribes that the property which hag vested in or of which possession has been taken by the Custodian shall be exempt from all legal process including seizure distress ejectment or sale by any officer of a Court or any other authority a no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any ot authority
Section 141 permits the Rehabilitation Authority allot evacuee property to the refugees
Section 161 says the no creation or transfer of any right or interest in or encumbrane upon any property made in any manner whatsoever on or after the first day of March 1947 by or on behalf of an evacuee or by or on behalf of a person who has or may become an evacuee after the date of such creation or transfer shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party unless it is confirmed by the Custodian
Section 19 empowers the Custodian to restore the evacuee property to the lawful owner subject to such conditions as he may be pleased to impose
Section 201 stipulates that the Custodian may take such measures as he considers 643 necessary or expedient for the purpose of administering preserving and managing any evacuee property which has vested in him and may for any such purpose as aforesaid do all acts and incur all expenses necessary or incidental thereto
Sub section
2 of that section provides that without Prejudice to the generality of the provisions contained in sub section
1 the Custodian may
msell any evacuee property notwithstanding any this contained in any law or agreement to the contrary relating thereto Provided that the Custodian shall not under this Clause or the next succeeding clause sell any immovable evacuee property or any business or undertaking which is evacuee property except with the previous approval of the Central Government
 Clause i of that sub section empowers the Custodian to demolish or dismantle any evacuee property which in his opinion cannot be repaired or sell the site of such property and the materials thereof
The Custodian can recoup all the expenses incurred by him in the administration of the evacuee property from out of the receipts in his hand in respect of that property Section 221 requires the Custodian to maintain separate account of the property of each evacuee of which he has taken possession and shall cause to be made therein entries of all receipts and expenditure in respect therof
The Ordinance starts by saying that it is an Ordinance to provide for the administration of evacuee property and not management of evacuee property
The expression administra tion in relation to an estate in law means managements and settling of that estate
It is a power to deal with the estate
The evacuee could not take possession of his property
He could not lease that property
He could not sell that property without the consent of the Custodian
He could not mortgage that property
He could not realise the lncome of the property
On the other hand the Custodian could take possession of that property
He could realise its income
He could alienate the property and he could under certain circumstances demolish the property
All the rights that the evacuee had in the property he left in Pakistan were exercisable by the Custodian excepting that he could not appropriate the proceeds for his own use
The evacuee could not exercise any rights in that property except with the consent of the Custodian
He merely had some beneficial
interest in that property
No doubt that residual interest in a sense is ownership
The property having vested in the Custodian who bad 644 all the powers of the owner he was the legal owner or the property
In the eye of the law the Custodian was the owner of that property
The position of the Custodian was no less than that of a Trustee
Section 91 says  The tax shall be payable by an assessee under the head Income from Property in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of which he is the owner other than such portions of such property as he may occupy for the purposes of any business profession or vocation carried on by him the profits of which are assessable to tax subject to the following allowances namely  The question is who is the owner referred to in this section  Is it the person in whom the property vests or is it he who is entitled to some beneficial interest in the property It must be remembered that section 9 brings to tax the income from property and not the interest of a person in the property
A property cannot be owned by two persons each one having independent and exclusive right over it
Hence for the purpose of section 9 the owner must be that person who can exercise the rights of the owner not on behalf of the owner but in his own right
For a minute let us look at things from the practical point of view
If the thousands of evacuees who left practically all their properties as well as business in Pakistan had been considered as the owners of those properties and business as long as the Ordinance  was in force then those unfortunate persons would have had to pay income tax on the basis of the annual letting value of their properties and on the income gains and profits of the businesses left by them in Pakistan though they did not get a paisa out of those properties and businesses
Fortunately no one in the past interpreted the law in the manner Mr Mahajan wants us to interpret
It is time that equitable considerations are irrelevant in interpreting tax laws
But these laws like all other laws have to be interpreted reasonably and in consonance with justice
The question as to who is Vie owner of a house property under section 9 of the Act in circumstances similar to those before us came up for consideration before the Calcutta High Court in the matter of The Official Assignee for Bengal Estate of Jnanendra Nath Pramanik 1
In that case on the adjudication of a person as insolvent under the Presidency Towns Insolvency Act 1909 certain house property of the insolvent vested in the Official Assignee
The question arose whether the Official Assignee 15
ITR 233
645 could be taxed in respect of the income of the property under section 9
The High Court held_ that the property did not by reason of the adjudication of the debtor cease to be a subject fit for taxation and in view of the provisions of section 17 of the Presidency Towns Insolvency Act the Official Assignee was the owner of the property and he could rightly be assessed in respect of the income from that property under section 9
Section 17 of the Presidency Towns Insolvency Act reads On the making of an order of adjudication the property of the insolvent wherever situate shall vest in the official assignee and shall became divisible among his creditors and thereafter except as directed by this Act no creditor to whom the insolvent is indebted in respect of any debt provable in insolvency shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt or shall commence any suit or other legal proceedings except with the leave of the Court and on such terms as the Court may impose  Provided that this section shall not affect the power of any secured creditor to realize or otherwise deal with his security in the same manner as he would have been entitled to realise or deal with it if this section had not been passed
 We may note that the powers of the Custodian are no less than that of the Official Assignee under the Presidency Towns Insolvency Act 1909
Delivering the judgment of the Court in the Official Assignee s case1 Costello J observed  With regard to the first point Mr Page argued that although by section 17 of the Presidency Towns Insolvency Act these properties vested in the Official Assignee he did not thereby or thereupon become the owner of those properties within the meaning properly ascribable to that word for the purposes of the applicability of Section 9
What Mr Page really invited us to do was to restrict the meaning of the word by putting before it the qualifying adjective beneficial
What was argued by Mr Page was that the Official Assignee had no legal interest in the properties themselves they were merely vested in him for the purposes of the administration of them in the interest of the creditors of the insolvent
I am unable to accept Mr Page s contention
In this country there is no difference between legal estate and equitable estate
In this connection the case of Sir Currimbhoy Ebrahim Baro 1 646 netcy Trust vs Commissioner of Income tax Bombay 612 IA 1209 is of assistance
At page 217 Sir Sydney Rowlatt when giving the judgment of the Privy Council made this observation In their Lordships opinion the effect of the Act creating these trusts is not to give the baronet for the time being any right to any part of the interest or property specifically or any right which even granting that the legal title is not the only thing that can ever be looked at would make it true to say that any proportion of the interest is not receivable  or any proportion of the property is not owned  by the incorporated trustees
 The learned judges of the Calcutta High Court in reaching that conclusion relied on the decision in The Commissioner of Inland Revenue vs Fleming1
That appeal related to a claim for repayment of income tax to which the respondent claimed to be entitled in respect of personal allowance introduced into the Income tax system by section 18 of the Finance Act 1920
The claim arose in the following circumstances  The respondent was declared insolvent in 1921
He was then the owner of heritable properties
His insolvency lasted till May 10 1926
When he received his discharge on payment of composition and was reinvested in his estate
At that time his estate consisted of 1 Two of the original heritable properties which had not been realised by the trustee in the insolvency and 2 a balance in cash of pound 53 odd
During the insolvency the trustee paid income tax on the full annual value of the two properties in question
The contention of the respondent was that the radical right to these properties was in him all that time and that in paying the tax the trustee was really paying it on his behalf that is on his income and that consequently there arose in each of the years in which the payment was made a right to deduct his personal allowance from the annual value of the properties
The right to this abatement is said to have passed to the Respondent himself in virtue of the reinvestment in his estate which occurred upon his discharge on composition
Rejecting this contention Lord President observed  It is obvious that unless during the years in question the annual value of the properties was income of the Respondent he cannot have any claim to abatement of it for income tax purposes and accordingly everything depends upon the soundness of the proposition that the income consisting in the annual value of 1 14 Tax Cases 78
647 these properties was truly income of the Respondent
I do not see how it can possibly be so described
It was part of the income arising from the sequestrated estates vested in the trustee for the Respondent s creditors
Any income that did arise from those estates was income of the trustee as such and he and he alone had the right to put it into his pocket as income
It was not income that went or could go into the pocket of the Respondent as income in any of the years in question
How then can it be said to have reached his pocket as income on his subsequent reinvestiture
 For determining the person liable to pay tax the test laid down by the court was to find out the person entitled to that income
An attempt was made by Mr Mahajan to distinguish this case on the ground that under the corresponding English statute the liability to tax in respect of income from property is not laid on the owner of the property
It is true that section 82 of the English Income tax Act 1952 is worded differently
But the principles underlying the two statutes are identical
This is clear from the various provisions in that Act
The conclusion reached by Costello J in Official Assignee s case1 receives support from the decision of the Privy Council in Trustees of Sir Currimbhoy Ibrahim Baronetcy Trust vs Commissioner of Income tax Bombay2
The Counsel for the appellant was unable to point out to us any decision which has taken a view contrary to that taken in Official Assignee s case3
The learned judges of the High Court in reaching their con clusion that the assessee was not the owner of the property in the relevant assessment years took assistance from the decisions of English courts dealing with the question of levy of income tax on the income from enemy properties taken possession of by the Custodian during war
In those cases the English judges have enunciated the theory of suspended ownership
We do not think that we need call assistance from those decisions
Mr Mahajan contended that despite the fact that evacuee property was taken over by the Custodian and that he had been conferred with large powers to deal with it an evacuee from Pakistan who owned that property before he migrated to India still continued to be the owner of the property
For this contention of his he placed reliance on some of the observations of this Court in Amar Singh vs Custodian Evacuee Property Punjab1
Therein delivering judgment of the Court Jagannadhadas J observed at p 815 of the report 15 ITR 233
22 I TR 148
3 1957 SCR 648 Stopping here it will be seen that the position in its general aspect is that all evacuee property is vested in the Custodian
But the evacuee has not lost his ownership in it
The law recognised his ultimate ownership subject to certain limitations
The evacuee may come back and obtain return of his property as also an account of the management thereof by the Custodian
 Those observations have to be understood in the context in which they were made
Therein their Lordships were considering whether the right of an evacuee in respect of the property left by him in the country from which he migrated was property right for the purpose of article 19 1  1 f  of the Constitution
No one denies that an evacuee from Pakistan has a residual right in the property that he left in Pakistan
But the real question is can that right be considered as ownership within the meaning of section 9 of the Act
As mentioned earlier that section seeks to bring to tax income of the property in the hands of the owner
Hence the focus of that section is on the receipt of the income
The word owner has different meanings in different contexts
Under certain circumstances a lessee may be considered as the owner of the property leased to him
In Stroud s Judicial Dictionary 3rd Edn various meanings of the word owner are given  It is not necessary for our present purpose to examine what the word owner means in different contexts
The meaning that we give to the word  owner in section 9 must not be such as to make that provision capable of being made an instrument of oppression
It must be in consonance with the principles underlying the Act
Mr Mahajan next invited our attention to the observations in Pollock on Jurisprudence 6th Edn 1929 178 80 Owner ship may be described as the entirety of the powers of use and disposal allowed by law
The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal very often there is no such person
We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it and he will be the owner even if the immediate power of control and use is elsewhere
It is not necessary to consider whether those observations hold good even now because of the various legislative measures enacted during the last about forty years after those observations were made
Suffice it to say that those observations are inapplicable to the case of the owner under section 9 of the Act
649 Mr Mahajan in support of his contention next placed reliance on the decision of the Patna High Court in Raja P C Lal Choudhary vs Commissioner of Income tax1
Therein the question was whether the receiver of a property appointed by court was the owner of the property for the purpose of section 9 of the Act
The court came to the conclusion that he was not the owner as the property did not vest in him
In fact in the course of the judgment the court made a distinction between a receiver and a trustee and an official assignee
In our opinion this decision instead of supporting the case of the appellant may lend some support to the contention of the Revenue
Reliance was next placed on the decision of the Calcutta High Court in Nawah Bahadur of Murshidabad vs Commissioner of Income tax West Bengal2
The facts of that case were  Properties which belonged to the ancestors of the Nawab of Murshidabad as Rulers were some time after the territories had been conquered by the British settled by the Secretary of State for India in the year 1891 on the then Nawab of Murshidabad under a deed of settlement which provided that such properties  shall henceforth and for ever be held and enjoyed by the said Nawab Bahadur and such one among his lineal male heirs as may be successively entitled to hold the said title in perpetuity
with and subject to the incidents power limitations and conditions as to the inalienability and otherwise hereinafter contained
One of the conditions was that he was not entitled to sell or alienate the properties except with the approval of the Governor of Bengal
The Settlement deed was confirmed by Act XV of 1891
The question arose whet her Nawab of Murshidabad was liable to pay tax in respect of the income of those properties under section 9 of the Act
The Court held that whatever might have been the original nature of the State properties after the deed of settlement and the Act of 1891 as the dual status of the Nawab as the holder of the State and as an individual ceased it could not be said that the Nawab for the time being was not the owner of such properties for the purposes of section 9 of the Act and the Nawab was therefore liable to be assessed to income tax on the income of such properties
The Court further held that the word owner in section 9 of the Act applies to owners of the whole income even though they are under certain restrictions with regard to the alienation of the properties
We are unable to see how this decision gives any support to the contentions advanced on behalf of the assessee
After giving our careful consideration to the question of law under consideration we have come to the conclusion that the 1 2 650 assessee was not the owner of Neadous Hotel during the relevant assessment years for the purpose of section 9 of the Act
Hence these appeals fail and they are dismissed
In the circumstances of the case we make no order as to costs in these appeals
GC Appeals dismissed


Summary:
The assessee was a registered firm deriving income from securities property business and other sources
In 1946 it purchased a hotel in Lahore for a sum of Rs 46 lacs
For that purpose it raised a loan of Rs 30 lacs from a bank and a loan of Rs 18 lacs from one R The loan taken from the bank was largely repaid but with R the assessee came to an agreement whereby R accepted a half share in the said property in lieu of the loan advanced and 
also 13rd of the outstanding liability of the bank
This arrangement came into effect on November 1 1951
After the creation of Pakistan Lahore became a part of Pakistan and the hotel in question was declared evacuee property
As such it came to vest in the Custodian in Pakistan
In its returns for the assessment years 1952 53 1955 56 and 1956 57 the assessee claimed certain amounts as losses on account of interest payable to the bank but showed the gross annual letting value from the said property at Nil
The Income tax Officer held that since the property had vested in the Custodian no income or loss from that property could be considered in the assessee s case
The Appellate Assistant Commissioner confirmed the order of the Income tax Officer
The Appellate Tribunal however came to the conclusion that the assessee still continued to be the owner of the property for the purpose of the computation of loss and the interest paid was a deductible allowance under section 91 iv of the Income tax Act 1922
reference the High Court on an analysis of the various provisions of the Pakistan Administration of Evacuee Property Ordinance15 of
1949 came to the conclusion that for the purpose of section 9 of the Act the assessee could not be considered as the owner of that property In the assesee s appeal to this Court it was contended that the property vested in the Custodian only for
the purpose of administration and the assessee still continued to be its owner
HELD  Under the Pakistan Administration of Evacuee Property Ordinance 1949 the evacuee could not take possession of his property
He could not lease that property
He could not sell the property without the consent of the custodian
He could not mortgage that property
He could not realise the income of the property
All the rights that the evacuee had in the property were exercisable by the Custodian excepting that he could not appropriate the proceeds to his own use
The evacuee had only a beneficial interest in the property
In the eye of the law the Custodian who had all the powers of the owner was the owner of the property
His position_ was no less than that a Trustee
643 F 644 A Section 9 of the Income tax Act 1922 bringsto tax the income from property and
not the interest of a person in the property
A property cannot be owned by two persons each one having independent and exclusive right over it
Hence for the purpose of section 9 the owner must be 640 that person who can exercise the rights of the owner not on behalf of the owner but in his own right
Accordingly the assessee was not the owner of the property in question during the relevant assessment years for the purpose of section 9 of the Act
644 D It is true that equitable considerations are irrelevant in interpreting tax laws
But those laws like all other laws have to be interpreted reasonably and in consonance with justice
If the thousands of evacuee who left practically all their properties as well as businesses in Pakistan had been considered as the owners of those properties and businesses as long as the ordinance  was in force then those unfortunate persons would have had to pay income tax on the basis of the annual letting value of their properties and on the income gains and properties of the business left by them in Pakistan though they did not get a paisa out of those properties and business
Fortunately no one in the past interpreted the law in the manner suggested by the assessee
644 E G Official Assignee for Bengal Estate of Jnanendra Nath Pramanik  Commissioner of Inland Revenue vs Fleming and Sir
Currimbhoy Ibrahim Baronetcy Trust vs CIT Bombay  applied
Amar Singh vs Custodian Evacuee Property Punjab 1957 SCR 801 distinguished
PC Lai Choudhary vs CIT and Nawab Bahadur of Murshidabad vs CIT West Bengal 28 ITR 510 considered