( 1 ) ). At the instance of the Revenue, the following question was referred to this court under section 256 (1) of the Income-tax Act, 1961 (Act 43 of 1961) (for short "the Act") :"whether, on the facts and the circumstances of the case, the Tribunal was right in holding that the assessee was entitled to depreciation in respect of the land and building at Bombay for the assessment year 1973-74 ?"

( 2 ) THE assessment year in question is 1973-74. The assessee is a private limited company carrying on business in armatures, laminations and stampings. For the purpose of this business, for its Bombay Office, it purchased a building in Bombay on 13/03/1971. The conveyance deed in respect of that property was, however, not registered in the relevant previous year. The assessee claimed depreciation in respect of the building in the assessment proceedings for the assessment year 1973-74 and also in the assessment proceedings for the preceding assessment year 1972-73. The claim for depreciation was rejected by the Income-tax Officer for both the assessment years on the ground that the sale deed was not registered and so the assessee did not become the owner of the property in the relevant previous years. On appeal, the Appellate Assistant Commissioner, following his decision on the same issue in the appeal for the preceding assessment year 1972-73 (obviously by then the appeal for the previous assessment year by the same assessee was decided), upheld the claim of assessee for depreciation for the assessment year 1973-74 also. The Department appealed to the Income-tax Appellate Tribunal. The Tribunal following its earlier order for the preceding assessment year, rejected the contentions of the Revenue. It relied upon the decision of the Supreme Court rendered in R. B. Jodha Mal Kuthiala v. CIT [1971] 82 ITR 570 and of the Allahabad High Court in CIT v. Bijli Cotton Mills Ltd. [1953] 23 ITR 278, to arrive at the finding that the assessee was undoubtedly the owner of the property in the relevant previous year though the legal title was not complete for want of a registered conveyance deed and that the assessee was entitled to depreciation since the building was owned and used by it for the purpose of its business.

( 3 ) SECTION 9 of the Indian Income-tax Act, 1922, is in pari materia with section 22 of the Income-tax Act, 1961, which deals with income from house property. Section 22 of the Act, inter alia, says that the annual value of the property consisting of any buildings or land of which the assessee is the owner shall be chargeable to Income-tax under the head "income from house property". Section 32 (1) of the Act deals with depreciation in respect of buildings "owned by the assessee and used for the purpose of the business. . . . . . . ". In R. B. Jodha Mal Kuthiala v. CIT [1971] 82 ITR 570 (SC), the question for decision before the Supreme Court was whether for the purpose of section 9 of the Indian Income-tax Act, 1922, the owner must be the person who can exercise the rights of the owner, not on behalf of the owner but in his own right. The property in that case consisted of a hotel in Lahore. After the creation of Pakistan, the property vested in the Custodian of Evacuee Property, but technically the assessee continued to be the owner although he had no dominion over, or possession of, the same. The Supreme Court held that the real test was to ascertain whether the assessee was entitled to the income from the property. In that view, it held that the assessee was not the owner of the hotel in Lahore during the relevant assessment year. The following observations of the Supreme Court are opposite (p. 575) :"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 propert