TMI Blog1996 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... eard counsel for both the parties. The Commissioner of Income-tax, Calcutta, has preferred this appeal against the judgment of the Calcutta High Court (see [1987] 167 ITR 60), in Income-tax Reference No. 88 of 1986, answering the question referred at the instance of the assessee in favour of the assessee. The question referred under section 256(1) of the Income-tax Act, 1961, is : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the income as received by Messrs. Surrendra Overseas Limited, be assessed as the income of the assessee from business from leasehold interest ? " Under a deed of assignment, dated September 3, 1966, the assessee obtained the leasehold interest, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contending that inasmuch as it has transferred a portion of its leasehold interest in favour of Messrs. Surrendra Overseas Ltd., the income received from the properties so transferred to Messrs. Surrendra Overseas Ltd. cannot be included in its total income. The Income-tax Officer rejected the objection relying upon Sri Ganesh Properties Ltd. v. CIT [1962] 44 ITR 606 (Cal) ; Sakarchand Chhaganlal v. CED [1969] 73 ITR 555 (Guj) and Bengal Jute Mills Co. Ltd. v. CIT [1949] 17 ITR 308 (Cal). The assessee appealed to the Commissioner of Income-tax (Appeals) who recorded a finding that " the income from the leasehold property should be assessed under the head 'Business' ". He did not give any specific direction with respect to the quantum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot actual or real income. The Tribunal directed that (i) the income from leasehold property should be assessed as income from business, and (ii) that the income which has to be assessed as income from business from leasehold interest, should be the income as received by Messrs. Surrendra Overseas Limited. The assessee thereupon applied for and obtained the reference of the above question for the opinion of the High Court. We must pause here and mention a fact to clear the ground. While setting out the facts in its judgment, the High Court has stated a new fact which we are not able to find either in the order of the Tribunal or in the order of the Commissioner of Income-tax (Appeals). The High Court has observed that " a multi-storeyed bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seas should be included in the total income of the assessee or does it also comprehend the other issue, viz., whether the said income should be assessed under the head " Income from house property " or under the head " Profits and gains of business or profession ". The question, as framed, is capable of being construed both ways. In this connection, a fact to be noted is that, on an earlier occasion, the Tribunal had opined that the said income should be assessed as income from business. Whether that issue got concluded then itself or was it also in issue in the present proceedings ? If it was not in issue in the present proceedings, then why did the High Court refer to the decision in S. G. Mercantile Corporation (P.) Ltd. v. CIT [1972] 83 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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