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TMI Blog1948 (3) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee borrowed money from one Kumar Pramatha Nath Roy and others, and, in order to secure the loan, executed a mortgage in the English form, transferring the mortgaged property absolutely to the mortgagees, but subject to a proviso for re-transfer to the mortgagor on payment of the mortgage money as agreed. The mortgagees brought an action upon the mortgage on the original side of the Calcutta High Court, and, during the pendancy of the suit the High Court appointed a receiver of the rents, issues and profits of the immovable properties comprised in the mortgage with power to him to get in and collect the outstanding debts and claims due in respect of the said property and with all the powers provided for in Order XL, Rule 1, clause (d), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 9(1) of the Income Tax Act says that the tax shall be pay able by an assessee under the head Income from property in respect of the bona fide annual value of property consisting of any buildings or lands apparent thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him the profits of which are assessable to tax, subject to the following allowances, namely:― (it is unnecessary to specify them here). The question before us, therefore, is merely: who is to be regarded as the owner within the meaning of this section? There are three possibilities only: the mortgagor, the mortgagee or the receiver. Before the Tribunal it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of any interest payable on such capital . It will be noticed that the word mortgage is used without any qualification or limitation to any particular form of mortgage, and will, therefore, includes a mortgage in English form. The provision means, therefore, that where the property is under mortgage the person liable for the tax will be entitled to an allowance for the amount of any interest on the mortgage. This can only refer to the mortgagor who is liable for the interest. So, for property subject to a mortgage, the mortgagor is the person liable for tax within the meaning of Section 9. With regard to the contention that receiver should be regarded the owner, this has been put forward on the view that the word owner in Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Court is the owner of the property. That a receiver appointed under Order XL, Rule 1, of the Code of Civil Procedure is not an owner indeed appears from the wording of the rule itself. Rule 1(1)(d) provides that the Court by order confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit. the use of the words as the owner himself has shows clearly that the receiver is some one others, than the owner. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous to that of a receiver. In the matter of The Official Assignee for Bengal [1937] 5 I.T.R. 233 relates to the official assignee in insolvency whose position again is not analogous to that of a receiver. In my opinion, the Tribunal was right in the view which it took. The owner under the terms of the section must be the mortgagor and cannot be either the mortgage or the receiver appointed by the Court. Before I conclude it is perhaps desirable to mention that it is not contested that the assessee will be entitled to the relevant proportionate allowances under the provision I have already referred to, Section 9 (1)(iv). I would answer the reference in the manner I have above indicated. The Commissioner of Income-tax is entitled to his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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