The entitlement to receive income from the property determines ownership for tax assessment purposes.

( 1 ) THE Income-tax Appellate Tribunal, Allahabad in Income-tax Reference No. 177 of 1989, which relates to the assessment years 1979-80 and 1982-83 has referred the following question of law under Section 256 (2) of the Income-tax Act, 1961, hereinafter referred to as "the Act": whether under the facts and circumstances of the case the Income-tax Appellate Tribunal was justified in finding income of house property 64, Lajpatnagar, Varanasi, assessable in the assessees hand ?

( 2 ) WHEREAS in I. T. R. No. 177 of 1991, which is at the instance of the Revenue and which relates to the assessment year 1983-84, the Income-tax Appellate Tribunal, Allahabad has referred the following question of law under Section 256 (1) of the Act: whether, on the facts and in the circumstances of the case, the honble Income-tax Appellate tribunal was justified in holding that the income from the house property 64, Lajpat Nagar, varanasi was assessable in the hands of Smt. Vimlawati Tandon, the wife of the assessee ?

( 3 ) AS the two references relate to the same assessee, they were heard together and are being decided by a common order.

( 4 ) BRIEFLY stated the facts giving rise to the present references are as follows:

( 5 ) SRI Ram Saran Das Tandon, the assessee became a member of Lala Lajpat Rai Grih Nirman sahakari Samiti, Varanasi, hereinafter referred to as "the society". The object of the society was to purchase and allot land in favour of its members. As per the bye-laws, after the allotment, the plots were transferred to the members of the society. The assessee who had been allotted a plot no. 64 in Lajpat Nagar by the society constructed a house during the year 1957-58. The construction was made with the permission of the society. In the year 1975 he moved an application before the society for substituting the name of his wife-Smt. Vimlawati Tandon, in the record of the society in his place. After observing the necessary formalities, the name of Smt. Vimlawati Tandon was substituted in place of the applicant. Thereafter, he received a sum of Rs. 60,000 by cheque on March 30, 1979, from Smt. Vimlawati Tandon towards the investment made and in getting the allotment of the land and the construction of the house by way of reimbursement/compensation. The society has executed a registered sale deed in respect of the plot in question in favour of Smt. Vimlawati Tandon on April 7, 1983. In the return filed under the Act for the assessment years 1979-80 onwards the assessee did not disclose the income from the house property, 64, Lajpat Nagar, Varanasi whereupon the Income-tax Officer made an enquiry and included the income of the property in the hands of the assessee. However, on appeal the Commissioner of Income-tax (Appeals) deleted the addition. On further appeal before the Tribunal by the Revenue, the Tribunal has set aside the order of the Commissioner of income-tax (Appeals) and restored the order of the Income-tax Officer. However, in respect of the assessment year 1983-84 the Tribunal has confirmed the order of the Commissioner of income-tax (Appeal ).

( 6 ) WE have heard Sri Krishna Agrawal, learned Counsel appearing for the assessee and Sri R. K. Upadhyay, learned Counsel appearing for the Revenue in both the references.

( 7 ) LEARNED Counsel for the assessee submitted that it is not in dispute that plot No. 64, Lajpat nagar, Varanasi was allotted to the assessee by the society and he had made some constructions over it with the permission of the society. However, in the year 1975, the assessee surrendered his membership in the society and in his place his wife became a member of the society. The society admitted his wife as a member in his place and thus for all practical purposes his wife smt. Vimlawati Tandon became the owner of Plot No. 64, Lajpat Nagar, Varanasi. She had also paid the amount incurred by him for the construction of the house and other incidental expenses by cheque. According to him, in view of Section