Rental income from property can only be assessed as income from house property if the assessee is the owner of the property.

( 1 ) ON the reference application, the Tribunal has referred the following question under Section 256 (1) of the Income-tax Act, 1961, set out at page 7 of the statement of case for our opinion : "whether, on the facts and in the circumstances of the case, the rent received by the assessee from the house property is assessable as income from other sources or income from house property ?"

( 2 ) THE assessee, Smt. Mandira Mukherjee, is the daughter of Sailendra Nath Roy. A deed of settlement dated March 8, 1951, was made by the late Amarendra Nath Roy, grandfather of Smt. Mandira Mukherjee. Under the deed of settlement, he had settled the property valued at Rs. 3,00,000, including the property in question. Under the deed, he made Shri Sailendra Nath Roy, his only son, a trustee and also made provision for maintenance of his daughter and grand-daughter. As per the terms of the settlement deed dated March 8, 1951, a sum of Rs. 10,000 was to be spent on the occasion of marriage of the assessee and an amount of Rs. 100 per month be spent on her education. After defraying these expenses, Shri Sailendra Nath Roy was allowed to enjoy the estate as absolute owner thereof till his life time. Thereafter the property would vest absolutely in Subir Kumar Roy. Shri Subir Kumar Roy has also constructed some factory-shed on that land. In 1980-81, the income from this property was assessed as "income from other sources".

( 3 ) ON the basis of an affidavit filed by Shri Sailendra Nath Roy that the assessee had been in occupation of the demarcated 10 cottahs of land in C. S. Plot Nos. 4439 and 4440 of C. S. Khaitan 2533 of Mouza Behala, P. S. Behala, District 24-Parganas, as a non-agricultural tenant from the year 1985. He also declared in the affidavit that Smt. Mandira Mukherjee would continue to hold so the land through her heirs, successors, legal representatives and assignees.

( 4 ) IT is claimed that initially, the assessee was paying ground rent of Rs. 150 per month for this land and on January 8, 1977, she entered into an agreement with Shri Subir Kumar Roy, her brother, according to which she let out the land to him at Rs. 1,800 per month with effect from January 1, 1978, and Shri Subir Kumar Roy, brother of the assessee, constructed a factory shed on this land at a cost of Rs. 80,000 and after adjusting Rs. 800 per month towards cost of the factory shed he paid the balance of Rs. 1,000 per month to the ajssessee. Thereafter, the rent was enhanced in the year 1981-82 and then in the year 1984-85. As per the assessee, she received Rs. 24,000 as gross rent from Shri Subir Kumar Roy. In the return, she claimed this income from "the house property" and also claimed deduction therefrom the rent of Rs. 2,400 paid to the assessee (? ). The assessee claimed that income should be assessed as income from the house property.

( 5 ) THE Income-tax Officer did not accept this. He pointed out that this rent of Rs. 24,000 should be treated as income of Shri Subir Kumar Roy, who is assessed under File No. 11-049-PK 1314/cal/24-Pgs. /c-Ward. But when the assessee has disclosed this income he assessed the income as shown by the assessee as "income from other sources".

( 6 ) IN appeal, the Commissioner of Income-tax (Appeals) relying on the affidavit of the grandfather of the assessee has taken the view that the rental income of the assessee should be assessed as "income from the house property" as shown by the assessee.

( 7 ) IN appeal before the Tribunal, the Tribunal found that the assessee is not the owner. Therefore, there is no question of assessing this rental income as "income from house property". In paragraph 16, the Tribunal found that in 1981-82, Shri Sailendra Nath Roy, father of the assessee, was treated as owner of the land for his life time only and the factory shed on that land has been constructed by Shri Subir Kumar Roy, brother of the assessee. Even this income has been shown by Shri Subir Kumar Roy in his return and that has been

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