- (1.) A common question of law arises in these Income-tax references. For the sake of convenience, we are setting out the facts of Income-tax Reference No. 64 of 1978.
(2.) THE assessee is a Co-operative Society registered under the Bombay Co-operative Societies Act, 1925. The Society took on lease certain lands in Juhu-Vile Parle from the Bombay Housing Board constituted under the Bombay Act 49 of 1949 for the purpose of building houses for its members. The Housing Board originally acquired lands admeasuring 426 acres and 23 gunthas for the purpose of building residential houses. It developed the land and laid out roads and provided other amenities. Instead of directly allotting the plots to various individuals for the purpose of constructing houses, the Housing Board gave permanent leases in favour of 14 Co-operative Housing Societies formed for the purpose of allotment of house sites to their members. The assessee-society and the other societies who are the assesses under the group of references which are before us, were all allottees of portions of this land under permanent leases so given by the Housing Board in favour of these Co-operative Housing Societies. The lease deeds were executed in October 1956. We are informed that the terms and conditions of the lease deeds in respect of all these societies are similar.
(3.) THE Co-operative Housing Societies, in turn, divided the land so allotted to them into plots and allotted the plots in favour of their members by taking an amount which was, in turn, handed over to the Housing Board. Each of the members also executed a lease deed in favour of the Co-operative Housing Society. All these lease deeds are similar. We reproduce one of the clauses in the lease deeds executed by each of the members of the Co-operative Housing Society in I. T. A. No. 521 of 1978. There is a similar clause in the lease deeds executed by the members of all other Co-operative Housing Societies which are before us in this group. It is to the following effect : "not to assign, underlet or part with the possession of the demised plot and premises at any time during the said term hereby granted without the written consent of the Lessor for that purpose previously had and obtained such consent not to be withheld in the case of a responsible and respectable tenant being a registered member of the Society PROVIDED ALWAYS and it is hereby agreed that on every permitted disposition or devolution of or dealing with the demised plot and premises under or by virtue of these presents the Lessee shall pay to the Lessor half the amount or value of any premium or other consideration received by the Lessee from the purchaser or transferee or underlessee in respect of the demised plot and premises and shall also pay to the Lessor half the extra amount received by the Lessee from the purchaser transferee or underlessee over and above the capital cost with interest thereon at 6? per cent per annum upto a limit of one-third of the capital cost. ";