Sudhindra Mohan Guha, J. - (1.) This reference under Section 256(1) of the I.T. Act, 1961, at the instance of the CIT, West Bengal V, Calcutta, relates to the assessment years 1963-64 and 1964-65. The following question was referred by the Tribunal to this court: "Whether, on the facts and in the circumstances of the case and on a correct interpretation of the agreement dated February 24, 1964, between the assessee and M/s. Shreeram Chandanmull, the Tribunal was right in holding that the amount of the capital expenditure incurred by M/s. Shreeram Chandanmull as per Clause 5 of the said agreement did not represent the assessee's income derived from the letting out of the tea gardens and could not be taxed in her hands ?"
(2.) In order to appreciate the controversy, the facts of the case as found by the Tribunal and relevant for our purpose may be stated as follows : The assessee who is a proprietrix of two tea gardens leased out the same to one M/s. Shreeram Chandanmull of Siliguri by a lease agreement dated February 24, 1963. The capital expenditure of Rs. 70,000 per year, which was agreed to be incurred by the lessee, was found by the ITO as payment to the assessee and hence her income.
(3.) There was an appeal by the assessee to the AAC. According to the AAC, the development work, if carried out, would enure to the benefit of the assessee after the expiry of the contract period. This was found to be either a constructive or indirect receipt by the assessee herself. Thus the finding of the ITO, that the sum of Rs. 70,000 was the income and taxable in the hands of the assessee, was confirmed.;