The ownership of structures on leased land can be determined by interpreting the terms and conditions of the lease agreement, including the purchase price paid for the structures and the rights and obligations of the lessor and lessee.

LAHIRI, C.J.

1. THIS is a reference under s. 66 (1) of the Indian IT Act and it arises out of the assessment of premises No. 12, Lower Chitpur Road, commonly known as Teiretta Bazar. The only question that arises for consideration in this reference is whether the assessment of the assessee under s. 9 of the Indian IT Act was proper. The assessee took a lease of premises No. 12, Lower Chitpur Road by an indenture dt. 14th Feb., 1948. The question referred to this Court will have to be answered by a consideration of the different clauses of that indenture of lease. According to the assessee, it was a mere lease of the premises in question and as such it should have been assessed under s. 12 of the Indian IT Act. THIS contention of the assessee was overruled by the ITO and that decision was confirmed on appeal by the AAC and by the Tribunal on second appeal. Against the decision of the Tribunal the assessee applied under s. 66 (1) of the Indian IT Act and the question which has been forwarded to this Court by the Tribunal is in these terms :

"Whether on the facts and in the circumstances of the case and on a proper construction of the lease deed dt. 14th Feb., 1948, the income from the property which was covered by the said deed and which the applicant company purchased for Rs. 4,00,000 was assessable under s. 9 or under s. 12 of the Act ?"

2. THE question as framed assumes that the property covered by the indenture dt. 14th Feb., 1948, was purchased by the assessee for a sum of Rs. 4,00,000. If that were so, the answer to the question would be self-evident; but on hearing learned counsel on both sides, we have come to the conclusion that the question as framed does not bring out the real point in controversy between the parties, and, accordingly, we reframe the question in the following manner :

"Whether on the facts and in the circumstances of the case and on proper construction of the deed of lease dt. 14th Feb., 1948, the assessment of the assessee-company under s. 9 of the Indian IT Act was correct ?"

This was the question suggested by the assessee-company in its application under s. 66 (1) of the Act and, in our opinion, that question brings out the real controversy between the parties. I would, accordingly, answer the question as reframed by us.

3. IN answering this question we shall have to construe the different clauses of the deed dt. 14th Feb., 1948, and come to a conclusion as to whether, upon a true construction of that deed, the assessee-company can be said to be the owner of premises No. 12, Lower Chitpur Road (known as Teiretta Bazar). That document recites that the property belongs to Thakur Sri Radhaballav Jew at Burdwan represented by his Shebait Maharajadhiraj Bahadur Sir Uday Chand Mahatab of Burdwan. It purports to be a lease for 66 years with an option of renewal for a further term of 33 years. The Maharaja of Burdwan as Shebait is described as the lessor and the assessee-company is described as the lessee. It is stated in the lease that the structures standing on the land are very old, mortars whereof had been loosened and dried up and were in a decaying condition; that the Corporation of Calcutta had served various notices under the Calcutta Municipal Act requiring the owner to adequately secure and strengthen the structures and also instituted certain proceedings against the lessor; that after consulting engineers the lessor had ascertained that a sum of about Rs. 12,00,000 would be necessary for the purpose of rebuilding and renovating the structures; that the lessor had no available funds out of which such rebuilding could be carried out and that it was necessary for the purpose of protecting and preserving the property to make immediate provisions for meeting the expenses required for effecting necessary repairs. For this purpose the lessor granted this lease to the assessee-company for a period of 66 years, subject to the payment by the lessee of a sum of Rs. 4,00,000 "being the price of materia