Judgment P.B. MUKHARJI, J. 1. THESE are three Income-tax reference which at counsel's request we have heard one after the other because they arise between the same parties and because there are certain connected questions of fact and law, and because they arise out of the same order of the Tribunal although three different references have been made. 2. WE shall take up first IT. Ref. No. 102 of 1967, in the matter of CIT vs. Chitpore Golabari Co. (P) Ltd. The question set for an answer by this court in this reference is an follows: "Whether, on the facts and in the circumstances of the case, on a proper construction of the indenture of lease dated 28th October, 1957, the Tribunal was right in holding that the entire rental income from premises No. 8, Clive Row, Calcutta, should be assessed under s. 12 of the IT Act. 1922 ?" The facts of the case giving rise to this question are as follows : The assessment year is 1961-62 for which the corresponding accounting year in this case is the calendar year 1960. The assessee is an investment and property holding company managed by Andrew Yule and Co. Ltd. During the accounting year the company owned, inter alia, three properties, namely, No. 8 Clive Row, 243, Upper Chitpore Road and No. 62, Hazra Road, all in the town of Calcutta. By an indenture of lease dated the 28th October, 1957, the assessee-company leased premises No. 8, Clive Row, to a number of companies managed by Andrew Yule and Co. Ltd. The deed records that in consideration of the rent reserved and other covenants and conditions, the landlord demised unto the tenants, 8, Clive Row, together with the compound, garage, outhouses belonging or appurtenant thereto excluding the fixtures and fittings therein at a monthly rent of Rs. 8,612. It was further provided in the said deed that the landlord would let out on hire and the tenants would take on hire the fixtures fittings and the air-conditioning plants in the said premises whether affixed or not and specified in the third schedule thereto at a rent of Rs. 5,082 per month for the hire of the said fixtures and fittings and the air-conditioning plants. The lease is a part of the record of the case. 3. 5,082 per month for the hire of the said fixtures and fittings and the air-conditioning plants. The lease is a part of the record of the case. 3. IN its return the assessee showed the rent reserved for the building under s. 9 and the rent reserved for fixtures, buildings and air, conditioning plant under s. 12. The assessment was made accordingly. Before the AAC on appeal from the order of assessment, the assessee raised no objection to the method of assessment of the income from 8, Clive Row property. On this point the AAC confirmed the order of the ITO. 4. THE assessee appealed before the Tribunal. It was claimed on behalf of the assessee that the entire rental income from 8, Clive Row, should have been assessed under s. 12 and the letting value of the fixtures, fittings, air-conditioning plant, etc., was inseparable from the letting of the buildings. Reliance was placed on the Supreme Court decision in Sultan Brothers vs. CIT (1964) 51 ITR 353 (SC). THE Tribunal, on a consideration of the terms of the indenture of lease dated the 28th October, 1957, and in view of the fact that the building was situated in the principal commercial centre of Calcutta and was let out to the companies managed by Andrew Yule and Co. Ltd., to be used as their Calcutta offices, held that the lessee would not have accepted the lease of the premises without hire of the fixtures and fittings, such as the lifts, electrical fittings, air-conditioners, etc. THE Tribunal applied the test laid down by the Supreme Court in the above- mentioned case and held that it was the intention of the parties to the deed of lease that the letting would be inseparable. Therefore, the Tribunal directed that the entire rental income from premises No. 8, Clive Row, should be assessed under s. 12 after allowing all the deductions available under that section. On these facts, the Tribunal stated the case and raised the above question in this reference under s. 66(1) of the Indian IT Act, 1922. Therefore, the Tribunal directed that the entire rental income from premises No. 8, Clive Row, should be assessed under s. 12 after allowing all the deductions available under that section. On these facts, the Tribunal stated the case and raised the above question in this reference under s. 66(1) of the Indian IT Act, 1922. Sec. 12(4) of the IT Act, 1922, reads as follows : "Where an assessee lets on hire machinery, plant or furniture belonging to him and also buildings, and the letting of the buildings is inseparable from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the provisions of cls. (iv), v, (vi) and (vii) of sub-s. (2) of s. 10 in respect of such buildings." THE word "inseparable" is used in the above section. THE Tribunal has found on the facts of this case and on the reading of the lease that in the instant reference the letting of the fixtures, plant and machinery in this case was inseparable from the letting of the building within the meaning of this statutory provision. Sec. 12(4) of the IT Act, 1922, was introduced by the Indian IT (Amendment) Act, 1941 (23 of 1941). Prior to that s. 12(3) of the IT Act, 1922, was introduced by the Indian IT (Amendment) Act, 1939 (7 of 1939), and which reads as follows : "Where an assessee lets on hire machinery, plant or furniture belonging to him, he shall be entitled to allowances in accordance with the provisions of cls. (iv), (v), (vi) and (vii) of sub-s. (2) of s. 10." The reason for setting out both sub-ss. (3) and (4) of s. 12 is to show the sequence and the juxtaposition which will have a bearing on the interpretation. Two obvious and major questions arise in this reference. The first is about the inseparability and the meaning to be given to the word "inseparable" in s. 12(4) of the Indian IT Act, 1922. The other is : What is the meaning and connotation of the expression "machinery, plant or furniture" appearing in s. 12(4) of the Act. 5. ON a consideration of the facts and circumstances of the case, we are satisfied that in the instant reference the letting of the building is inseparable from the letting of the machinery, plant or furniture. The Tribunal has given certain reasons. 5. ON a consideration of the facts and circumstances of the case, we are satisfied that in the instant reference the letting of the building is inseparable from the letting of the machinery, plant or furniture. The Tribunal has given certain reasons. We shall add our own to them to show why we consider that the letting of the building and the letting of the machinery, plant or furniture are inseparable in this case. 6. AN analysis of the lease clearly shows certain dominant features. In the first place, cl. 1 of the lease deals with the lease as a whole and divides it into sub-cls. (a) and (b), sub- cl. (a) relating to the building and its rent, and sub-cl. (b) relating to what is described as "the fixtures, fittings and air-conditioning plants". The idea is to treat them both as coming under cl. 1 although separate rents are allocated for building and for fixtures, etc. Secondly, sub-cl. (c) of cl. 1 of the lease expressly describes the houses and the fixtures, fittings and air-conditioning plants collectively as "the demised premises". From this, it follows that the letting of the building and the fixtures or fittings or plants are regarded as one, indvisible and inseparable. Thirdly, the term of the lease is for 16 years from the 1st day of April, 1956, for both the lettings and the fixtures, etc. This also shows that the two lettings of the buildings and the fixtures, etc., are regarded as indivisible and inseparable, so that one can terminate and the other can continue. Fourthly, the rent for either, viz., for (1) the building, and (2) fixtures, fittings and the air-conditioning plants, are payable at the same time with no difference that fact also indicates that these two lettings are treated as one and inseparable. Lastly, there are no separate leases for these two lettings but one lease for each of the 39 tenants who are held jointly and severally liable by cl. 2 of the lease indicating that it is one and inseparable letting. Lastly, there are no separate leases for these two lettings but one lease for each of the 39 tenants who are held jointly and severally liable by cl. 2 of the lease indicating that it is one and inseparable letting. We have, therefore, no hesitation in holding that, in the facts and circumstances of this reference and on the express terms and conditions of the lease, the letting of the building and the letting of the fixtures, fittings and air-conditioning plants are "inseparable" within the meaning of that word used in s. 12(4) of the Indian IT Act, 1922. Dr. Pal for the assessee then drew a distinction between the expression "machinery, plant or furniture" used in s. 12(4) of the Indian IT Act, 1922, and the expression "fixtures, fittings and air-conditioning plants" used in the lease. The point of his submission was that these two expressions did not mean the same thing. In support of this argument, he drew our attention to the 3rd schedule of the lease which describes the property list under the following broad classifications : "1. Air-conditioners : portables. 2. Air-conditioners : fixed plants. 3. Tubewells, pumps, motors and tanks. 4. Lift. 5. Lights and fans. 6. Refrigerators and kitchen equipment including frigidaires, coolers and cookers." 7. BOTH Dr. Pal for the assessee and Mr. Sen for the Revenue contended that they were not the same as the expression "machinery, plant or furniture", although, naturally, for different reasons. The reason of Mr. Sen for the Revenue was to take it out from s. 12 altogether and place it under s. 9 in seeking to make this difference and suggesting that these kinds of plants are really a part of the building itself to be taken along with bricks and mortars. The reason for Dr. Pal making the distinction was to suggest that it was a distinction without a difference, for his main contention was that the expression "machinery, plant or furniture" under s. 12(4) of the Act meant, for all practical purposes, the same thing as "the fixtures, fittings and air-conditioning plants" used in the context of the lease in this reference. 8. BE that as it may, the conclusion is irresistible. 8. BE that as it may, the conclusion is irresistible. Having regard to the definitions and decisions on this branch we find it difficult to hold that the air-conditioning plant is not a plant or machinery or that the tube-wells, pumps, motors and tanks are not machinery in this case or that frigidaires are not machinery. Reference may be made to the Supreme Court decision in CIT vs. Mir Mohammad Ali (1964) 53 ITR 165 (SC). At p. 171 and 172 of the report, Sikri J., delivering the judgment of the Supreme Court, points out "the definition of the word 'plant' in s. 10(5) of the Indian IT Act, 1922, does not throw any light on the meaning of the word 'machinery' and that the word 'plant' is of wide import." The Supreme Court then proceeds to notice the Privy Council decision in Corporation of Calcutta vs. Chairman of Cossipore and Chitpur Municipality (1922) ILR 49 Cal 190, where the Privy Council said : "The word, ' machinery' when used in ordinary language prima facie means some mechanical contrivances which, by themselves or in combination with one or more other mechanical contrivances, by the combined movement and inter-dependent operation of their respective parts generate power, or evoke, modify, apply or direct natural forces with the object in each case of effecting so definite and specific a result." The Supreme Court, after noticing this definition, observed (1964) 53 ITR 165 (SC) (supra) : "The Privy Council case was not a tax case but, prima facie, the ordinary meaning of the word 'machinery'--and the word ' machinery' is an ordinary and not a technical word- must, unless there is something in the context, prevail in the Indian IT Act also." We, therefore, both on the facts and on the authority as discussed above, hold that although the lease uses the expression "fixtures, fittings and air-conditioning plants" they include items which are obviously plant and machinery within the meaning of s. 12(4) of the Indian IT Act, 1922. 9. THE controversy then began about the applicability of s. 9 or s. 12 of the IT Act on this point. THE Revenue contends that this is an income from property and should come under s. 9 of the Indian IT Act. THE assessee contends that it should come under s. 12 of the Indian IT Act relating to "other sources". THE controversy then began about the applicability of s. 9 or s. 12 of the IT Act on this point. THE Revenue contends that this is an income from property and should come under s. 9 of the Indian IT Act. THE assessee contends that it should come under s. 12 of the Indian IT Act relating to "other sources". This competition between s. 9 and s. 12 is quite a complex problem in this branch of the law. THE simple argument for the Revenue is that this property is 8, Clive Row, and the income is an income of rent from this property. Therefore, s. 9 of the Indian IT Act dealing with "property" is the most appropriate section under which this matter should be decided. THE assessee, on the other hand, contends that the appropriate section is s. 12 which deals with "other sources". Sec. 6 of the Indian IT Act, 1922, gives the different heads of income chargeable to income-tax as, (1) salaries, (2) interest on securities, (3) income from property, (4) profits and gains of business, profession or vocation, (5) income from other sources and (6) capital gains. 10. THE first question that arises in this connection is whether property under s. 6(iii) of the Indian IT Act, 1922, r/w s. 9 thereof means property of any kind including not only lands and buildings but also plant, machinery or furniture. If that were so, there would be good deal of force in the contention for the Revenue in this case. But we have come to the conclusion that the contention of the Revenue is not sound on this point. A scrutiny of s. 9 of the Indian IT Act, 1922, shows that, although its marginal head note is "property", it speaks only of lands and buildings and nothing else. THE whole scheme of s. 9 relates to lands and buildings. They do not use words like "machinery, plant or furniture" or any similar or quasi- similar expression to be included in property under s. 9 of the Indian IT Act, 1922. Proceeding to the next section, s. 10 of the Indian IT Act, 1922, one finds that it deals with business and there it not only speaks of lands and buildings but also of machinery and plant. Proceeding to the next section, s. 10 of the Indian IT Act, 1922, one finds that it deals with business and there it not only speaks of lands and buildings but also of machinery and plant. So, machinery and plant could be a consideration under s. 10 of the Indian IT Act when the profits and gains of business, profession or vocation are concerned. But we are not concerned with s. 10 and there is no computation, under s. 10 in the instant reference. That has been nobody's case, either by the Revenue or the assessee, on this point. This fact should be borne in mind in the instant reference in order to distinguish it from a possible confusion. Then when one comes to s. 12 of the Indian IT Act, 1922, the significant, relevant and decisive words for interpretation on this point are "other sources", "income, profits and gains of every kind" and "if not included under any of the preceding heads". Sec. 10 of the IT Act, 1922, being out of the way in this reference, it follows that s. 9 cannot be attracted to the facts of the case because it only speaks of lands and buildings. Therefore, it follows also that this is an "income, profits and gains . . . ." which is "not included under any of the preceding heads" within the meaning of those expression used in s. 12 of the Act. In other words, our conclusion is that rent or hire for letting out or hiring machinery, plant or furniture can only be put under s. 12 of the Act, on the ground that it is not covered by s. 9 so far as this case is concerned which is confined to only land and buildings. This, in our view, is supported by the express words used in s. 12(4) of the Act such as (1) assessee lets on hire, (2) machinery, plant or furniture, (3) buildings, and (4) the letting of the building inseparable from the letting of the machinery. When these tests are applicable, s. 12(4) of the Act says that the assessee will be entitled to allowances "in accordance with ss. 10(2)(iv), (v), (vi) and (vii)". Therefore, s. 12(4) of the Act includes letting on hire machinery, plant or furniture combined with letting of building and where the two lettings are inseparable. When these tests are applicable, s. 12(4) of the Act says that the assessee will be entitled to allowances "in accordance with ss. 10(2)(iv), (v), (vi) and (vii)". Therefore, s. 12(4) of the Act includes letting on hire machinery, plant or furniture combined with letting of building and where the two lettings are inseparable. Such an income cannot come under s. 9 of the Indian IT Act, 1922, but can only come under the residuary clause of s. 12 not only impliedly but expressly by the language of the statute as indicated above. To enforce this conclusion, we shall now emphasize the juxtaposition of sub-s. (4) immediately after sub- s. (3) in s. 12. Sec. 12(3), which came earlier, for the first time introduced the consideration of the case where machinery, plant or furniture is let on hire and provided that the allowance should be "in accordance with the provisions of cls. (iv), (v), (vi) and (vii) of sub-s. (2) of s. 10" which is the familiar ring to be repeated a few years later in the legislative history in sub-s. (4). After the introduction of s. 12(3) in 1939, it was found that the letting of machinery, plant or furniture did not stand alone but went along with the letting of building and, therefore, this amendment was introduced in 1944 to provide for the case where there was inseparable letting, combining the letting of machinery, plant or furniture and the building. In such a case, there is no further scope left to separate again s. 9 from s. 12 and say that the income from hire for machinery or the rent for the machinery should be taxed under s. 12 whereas rent from the building should be taxed under s. 9 of the Act. That would negative the whole concept of inseparable letting of the building and the machinery, plant or furniture for which express provision was made by s. 12(4) of the Indian IT Act, 1922. Here, it is necessary to notice the Supreme Court decision in Sultan Bros. (P) Ltd. vs. CIT (1964) 51 ITR 353 (SC), to which reference has already been made. At p. 358, the learned judge, delivering the judgment of the Supreme Court, observed : "Whether a particular letting is business has to be decided in the circumstances of each case. Here, it is necessary to notice the Supreme Court decision in Sultan Bros. (P) Ltd. vs. CIT (1964) 51 ITR 353 (SC), to which reference has already been made. At p. 358, the learned judge, delivering the judgment of the Supreme Court, observed : "Whether a particular letting is business has to be decided in the circumstances of each case. We do not think that the cases cited lay down a test for deciding when a letting amounts to a business. We think each case has to be looked at from a businessman's point of view to find out whether the letting was the doing of a business or the exploitation of his property by an owner. We do not further think that a thing can by its very nature be a commercial asset. A commercial asset is only an asset used in a business and nothing else, and business may be carried on with practically all things. Therefore, it is not possible to say that a particular activity is business because it is concerned with an asset with which trade is commonly carried on." 11. THERE in that case the question was also involved whether s. 10 relating to business had any applicability, and, therefore, there was this discussion whether the letting was a part of the business itself or not and what was being used was a commercial asset from that point of view. No such question, however, arises in the instant reference before us and there is no argument to suggest that s. 10 has at all any application to this case. As the Supreme Court observes at p. 359- 60 of that report that the assessee never carried on any business of a hotel in the premises let out in that case. Nor was there anything to show in that case that it intended to carry on a hotel business itself in the same building and, therefore, the income under the lease in the Supreme Court case could not be assessed under s. 10 of the Act as the income of that business. Having disposed of this argument on s. 10 of the Indian IT Act, 1922, the Supreme Court proceeded to the discussion of the next point which is relevant for the purposes of deciding the instant reference before us. Having disposed of this argument on s. 10 of the Indian IT Act, 1922, the Supreme Court proceeded to the discussion of the next point which is relevant for the purposes of deciding the instant reference before us. At p. 361 of that report, the Supreme Court observed (1964) 51 ITR 353 (SC) (supra) : "The only dispute that then remains is whether the building is to be assessed under s. 9 which of course will have to be on the basis of its annual value or whether the rent from the building has to be assessed under s. 12 after the allowances mentioned in sub-s. (4) have been deducted." 12. THAT exactly is the point before us. At p. 362, the Supreme Court lays down the following principle (1964) 51 ITR 353 (SC) (supra) : "Under sub-s. (4) of s. 12 the assessee becomes entitled among others to an allowance in accordance with s. 10(2)(vi) which is on account of depreciation of the building 'being the property of the assessee' from which it follows that sub-s. (4) of s. 12 contemplates the letting of the building by the owner. Sub-s. (4) of s. 12 must therefore be applicable when machinery, plant or furniture are inseparably let along with the building by the owner. If sub-s. (4) of s. 12 is to have any effect--and it is the duty of the Court so to construe every part of a statute that it has effect-- it must be held that the income arising from the letting of a building in the circumstances mentioned in it is an income coming within the residuary head. If a person cannot be assessed under s. 12 in respect of the rent of a building owned by him, sub-s. (4) will become redundant ; there will be no case in which the allowances mentioned by it can be granted in computing the actual income from a building. An interpretation producing such a result is not natural. We must therefore hold that when a building and plant, machinery or furniture are inseparably let, the Act contemplates the rent from the building as residuary head of income." See also the observations of the Supreme Court on this point at p. 363 of the report. An interpretation producing such a result is not natural. We must therefore hold that when a building and plant, machinery or furniture are inseparably let, the Act contemplates the rent from the building as residuary head of income." See also the observations of the Supreme Court on this point at p. 363 of the report. On the subject of the inseparability mentioned in s. 12(4) of the Indian IT Act, 1922, the Supreme Court at p. 363, observed : "It seems to us that the inseparability referred to in sub-s. (4) is an inseparability arising from the intention of the parties." It will, therefore, be seen from these observations of the Supreme Court that the two essential points relevant for the purposes of deciding the instant reference before us are : (1) intention is the test of inseparability, and (2) that rent from building let out along with the machinery is a residuary head of income. Applying the ratio of the Supreme Court decisions we are bound to hold that, in the facts and circumstances of the reference before us, the entire rental income from premises No. 8, Clive Row, must be assessed under s. 12(4) of that Act. 13. MR. Sen, appearing for the Revenue, submitted that this decision of the Supreme Court has not really been followed in a subsequent case called Nalinikant Ambalal Modi vs. CIT (1966) 61 ITR 428 (SC), where he said that the majority judgment did not refer to this decision at all but the minority judgment did. The majority judgment was delivered by the same learned judge who delivered the judgment in Sultan Brothers case (supra) quoted above, Reading the judgment in Nalinikant Ambalal's case (supra) we do not think that MR. Sen's submission is correct and we do not find that the subsequent Supreme Court decision either expressly or impliedly was against the previous Supreme Court decision. 14. FOR these reasons, we are of the opinion that the Tribunal was right in holding that the entire rental income from premises No. 8, Clive Row, Calcutta, should be assessed under s. 12 of the Indian IT Act, 1922, and answer the question in the affirmative and in favour of the assessee. There will be no order as to costs.