Judgment Chandramauli Kr.Pd., J. 1. In all these references and appeals common questions of law with little variation on facts arise and, as such, they were heard together and are being disposed of by this common judgment. Tax Case No. 19 of 1987. 2. Puja Bazar (Pvt.) Ltd., the assessee Company took on lease, worn out structure with shops and hutment built over an area of land measuring 30,000 sq.feet, known as Nawal Market. According to the terms of the lease-deed the lessee i.e. the assessee Company was to carry out necessary developments of the demised premises at its own cost and further to cause electric and other sanitary fittings as deemed necessary. It was also to acquire water connection at its own cost. According to the terms of the lease, the assessee Company was to bear the cost and expenses necessary for the upkeep, maintenance and other services required for the demised properties. In case of breach of the terms and conditions of the lease, the lessor was entitled to cancel the lease and forfeit the same and retake possession of the properties. According to the stipulation in the lease-deed, on termination of the lease whether on account of forfeitures by the lessor or surrender by the lessee or for any other reason, the lessee was to deliver peaceful possession of the demised property, alongwith all electrical, water supply and sanitary fittings and fixtures to the lessor or their successor-in-interest as the case may be. In such an event the lessor was to be not held liable to pay value of the building or structure on the demised premises or any compensation for the damage, injury or loss which may be claimed by the lessee. 3. The assessee Company derived income amounting to Rs.1,20,700/- in the assessment year 1980-81 from subletting the shops. The assessee claimed that the income was rental but it should be computed as a business income. The Assessing Officer negatived its plea and on appeal by it, the Commissioner of Income Tax (Appeals), in the background of the aforesaid fact held that the entire rental income received by the assessee from the Puja Bazar should be assessed as income from business. The Assessing Officer negatived its plea and on appeal by it, the Commissioner of Income Tax (Appeals), in the background of the aforesaid fact held that the entire rental income received by the assessee from the Puja Bazar should be assessed as income from business. The Revenue preferred appeal before the Income Tax Appellate Tribunal inter alia, contending that the lease in question being for indefinite period, the possession of the assessee is not different from that of the absolute owner and therefore the income derived from subletting of the shop shall fall within the category of the income from the house property. The Appellate Tribunal on appraisal of material on record and the clauses of the lease-deed came to the conclusion that the lease was for development of the market by the assessee and in case of non- fulfillment of the condition of the lease-deed the agreement is fit to be terminated and the lessor entitled to secure possession of the land alongwith the construction made by the assessee and that too without any compensation. The Appellate Tribunal also found that to fulfill its obligation the assessee made huge investments of Rs. 5,45,073/-, Rs. 8,86,766/-, Rs.3,90,347/- and Rs. 64,9107-for the assessment years 1979-80,1980-81, 1981-82 & 1982-83 respectively. On its finding that continuance of the lease agreement was on strict fulfillment of the obligation cast on the lessee by the lease agreement for development of the properties known as Nawal Market and in view of the above facts the lessee could not be considered as owner of the building and, as such, income derived from subletting of the shop cannot be considered to be income from house property. 4. 4. On these facts at the request of the Revenue, Tribunal referred the following question of law under Section 256(1) of the Income Tax Act, 1961 , hereinafter referred to as the Act, for answer by this Court: "Whether, on the facts and in the circumstances of the case and on proper construction of trie deed of lease, the Tribunal was right in holding that the rental income, derived from the shops was assessable as business income and not as income from house property as assessable under Sections 22 to 27 of the Act?" Tax Case No. 36 of 1987 5 M/s Mithila Properties Publication and Contractor Enterprises Pvt. Ltd., Muzaffarpur, the assessee Company took on lease a plot of land for a period of 25 years on payment of lease rent on monthly basis. On 2.6.1976 the assessee entered into an agreement with the Food Corporation of India for construction of Godowns and for letting out those Godowns to it on a monthly rental basis. The assessee in its return for the assessment year 1979-80 claimed that rental income derived by it from the Food Corporation of India was income from business but the Assessing Officer negatived its claim and held that the rental income received by the assessee is assessable under the head "income from house property". Later on at the direction of the Inspecting Assistant Commissioner (Assessment) under Section 144B of the Act, the Assessing Officer assessed the rental income in the hands of the assessee under the head "income from other sources". The Commissioner of Income Tax (Appeals) agreed with proposal of the Assessing Officer and held that the income derived by the assessee from the Food Corporation of India was assessable under the head "income from house property". While coming to the aforesaid conclusion it held that assessee took land on lease initially for a year and from 8.11.1978 i.e. the day the deed was registered it became the owner of the land alongwith the structure raised thereon. While coming to the aforesaid conclusion it held that assessee took land on lease initially for a year and from 8.11.1978 i.e. the day the deed was registered it became the owner of the land alongwith the structure raised thereon. On appeal the Tribunal held that the amount received by the assessee from the Food Corporation of India was assessable under the head business and for coming to the aforesaid conclusion it held that the agreement dated 2.6.1976 entered into by the assessee with the Food Corporation of India did not make the assessee the owner of the land but a lessee thereof for a period of 25 years. The Tribunal also found that the assessee constructed structure on the land according to the specifications of the Food Corporation of India to keep the Godown as well as the approach thereto in such a way as to fulfill the purpose for which it was let out. 6. On these facts at the prayer of the Revenue Tribunal referred the following question to be answered by this Court "Whether on the facts and circumstances of the case, the Tribunal was justified in holding that the income derived by the assessee by letting out of the Godowns to the Food Corporation of India on rent, was assessable under the head business and not under the head "income from house property"? 7. This court by judgment reported in Commissioner of Income Tax vs. Mithila Properties Publication & Contractor Enterprises Pvt. Ltd., (1997)228 ITR 713 answered the question in favour of the revenue and against the assessee. While doing so, it observed as follows: "In the present case what we find is that the super structure on the land, which was held on lease by the assessee, was owned by him. It is correct that the godown was constructed as per the specification of the Food Corporation of India but there is no finding of the Appellate Tribunal as to what were the objects of the Assessee, which is a limited company under the Companies Act, and whether in fact, it was in the business of developing the landed properties and promoted markets, as held by the Supreme Court in East India Housing and Land Development Trust Limited vs. CIT (1961)42 ITR 49. Even that could not be enough to hold that the income derived would be income to be assessed against the head "Business". Considering the statement of facts as found by the Tribunal we are of the opinion that the income in the present case would be "income from property" and "not from business". 8. The assessees preferred appeal and the Supreme Court by order dated 29th January, 1999 passed in Civil Appeal Nos.460-461 of 1999 set aside the judgment of this Court and remitted the matter back for consideration. This is how the reference has come up before us for consideration. Tax Case Nos. 66, 67 & 68 of 1987. 9. The assessee M/s Puja Bazars (Pvt.) Limited is a private limited company deriving income as a rent from Nawal Market, known as Puja Bazar in the assessment year 1979-80, 1981-82 and 1982-83. On a leasehold land, the assessee constructed Puja Bazar and let out the shops therein. It received rental income in the assessment year 1979-80,1981-82 and 1982-83. It claimed those income as income from business which was accepted by the Assessing Officer. However the Commissioner of Income Tax (Appeals) held that the assessment made by the Assessing Officer as erroneous and prejudicial to the interest of the Revenue as the rental income was liable to be assessed under the head income from house property. Accordingly, he set aside the assessment order and the Assessing Officer was directed to reframe the assessment in accordance with law, after giving an opportunity to the assessee. On an appeal by the assessee the order of the Commissioner of Income Tax was set aside by the Income Tax Appellate Tribunal. 10. At the request of the Revenue, on these facts, the Tribunal has referred the following question for the opinion of this Court: "Whether on the facts and in the circumstances of the case, and on proper construction of the deed of lease the Tribunal was right in holding that the rental income derived from the shops was assessable as Business Income and not as income from house property as assessable under Sections 22 to 27 of the Act?" Misc. Appeals 560 and 567 of 2000 11 Identical facts are involved in both the appeals. Misc. Appeal No. 560 of 2000 pertains to the assessment year 1993-94, whereas Misc. Appeal No. 567 of 2000 is in relation to assessment year 1994-95. 12. Appeals 560 and 567 of 2000 11 Identical facts are involved in both the appeals. Misc. Appeal No. 560 of 2000 pertains to the assessment year 1993-94, whereas Misc. Appeal No. 567 of 2000 is in relation to assessment year 1994-95. 12. Short facts giving rise to these appeals are that the assessee gave on rent the godowns to the Food Corporation of India. It received rental income in the assessment year 1993-94 & 1994-95 and claimed the rental income as income from business, which contention was negatived by the Assessing Officer. The assessee, aggrieved by the same preferred appeal and the Deputy Commissioner of Income Tax (Appeals) dismissed the appeals. The assessee preferred further appeal before the Tribunal and contended that the rental income from the godown let out to the Food Corporation of India is fit to be considered as income from business and not income from house property. Same question arose before the Tribunal in the case of assessee itself for the assessment years 1987-88 to 1992-93 and in those appeals the Tribunal held that the rental income from the godown let out to the Food Corporation of India is not to be taken as income from the house property. The matter being identical, for the assessment years 1993-94 and 1994-95 the Tribunal held that the rental income from the godown let out to the Food Corporation of India is to be taken as business income and not income from the house property. 13. Aggrieved by the aforesaid order the Revenue has preferred Misc. Appeal No. 560 of 2000 which pertains to financial year 1993-94 and Misc. Appeal No. 567 of 2000 which pertains to assessment year 1994-95. Both the appeals have been admitted for hearing on the following substantial question of law: "Whether the income from the rent of the warehouse is to be treated as a business income as held by the Tribunal or it should be treated as income from the house property." 14. Mr. Prakash Sahay as also Mr. S.K. Sharan appear on behalf of the Revenue, whereas the assessees are represented by Mr. K.N. Jain, Senior Advocate, Mr. G.P. Bimal and Mr. Ajay Kumar Rastogi.. 15. Mr. Prakash Sahay as also Mr. S.K. Sharan appear on behalf of the Revenue, whereas the assessees are represented by Mr. K.N. Jain, Senior Advocate, Mr. G.P. Bimal and Mr. Ajay Kumar Rastogi.. 15. It has been contended by the Revenue that distinct heads specified in Section 14 of the Act, indicating the sources are mutually exclusive and income if derived from different sources falls under specific head, it has to be computed for the purpose of taxation in the manner provided by the appropriate section. If the income from sources falls within a specific head, set out in Section 14 of the Act, the fact that it may indirectly be covered by another head, will not make income taxable under the later head In support of the submission, reliance has been placed on a decision for the Supreme Court in the case of East India Housing and Land Development Trustees Limited vs. Commissioner of Income Tax, West Bengal, (1961)42 ITR 49. 16. The Revenue further contends that to come within the head "income from business", there has to be element of uncertainty and in the absence thereof, the rental income shall come under income from house property. It has also been pointed out that there is nothing on the record to show that the assessees have been incorporated with the object of buying and developing landed property, make godown or market thereon. 17. Accordingly, it is contended that the rental income cannot be treated as income from business but has to be treated as income from house property. Reliance has been placed on a decision of the Madras High Court in the case of Commissioner of Income Tax vs. New India Maritime Agencies (P) Ltd. (2002)256 ITR 513 and our attention has been drawn to the reference made and answer given by the said Court. The reference made in the said case runs as follows: "xxx The business of the assessee is that of being maritime agent. No part of the premises, from which it received rent in the assessment year, was used for its business purpose. xxx" 18. The reference made in the said case runs as follows: "xxx The business of the assessee is that of being maritime agent. No part of the premises, from which it received rent in the assessment year, was used for its business purpose. xxx" 18. The answer given is as follows: "xxx The Tribunal was clearly in error in holding that the rental income received by the assessee from properties owned by it and let out to other was not income from house property and that the same was required to be treated as business income. xxx" 19. Learned counsel representing the assessees, however, contend that rental income shall fall under the head income from house property only when it is established that the assessees are owner of the property from which the rental income is derived. They point out that the land over which the godown or market are built, do not belong to the assessees. Alternatively, it has been contended on their behalf that taking land on lease, making market or godown thereon and subletting thereof, is part of the trading activity and thus, rental income shall necessarily come within the head income from business. Reliance has been placed on decisions of the Supreme Court in the cases of Commissioner of Income-Tax, Bombay City, l vs. National Storage Pvt. Ltd. (1967)66 ITR 596, Kirnani Properties Ltd. vs. Commissioner of Income Tax, West Bengal, (1971)82 lTR 547 and S.G. Mercantile Corporation P. Ltd. vs. Commissioner of Income Tax, Calcutta, (1972)83 ITR 700. 20. Chapter-IV of the Act, deals with the computation of total income, whereas Section 14 thereof, contemplates heads of income, same reads as follows: Heads of income. "14. Save as otherwise provided by this Act, all income shall, for the purpose of charge of income tax and computation of total income, be classified under the following heads of income: A Salaries. C Income from house property. D Profits and gains of business or profession; E Capital gains. F Income from other sources. 21. There is no difficulty in accepting the broad submission that when income falls within a specific head and it may indirectly is covered by another head, the income is rendered taxable under the specific head. The residuary head of income can be resorted to only, if none of the specific heads is applicable to the income in question. 21. There is no difficulty in accepting the broad submission that when income falls within a specific head and it may indirectly is covered by another head, the income is rendered taxable under the specific head. The residuary head of income can be resorted to only, if none of the specific heads is applicable to the income in question. It comes into operation only when all other heads are excluded. In fact, the decision of the Supreme Court in the case of East India Housing and Land Development Trust Ltd. vs. Commissioner of Income Tax, West Bengal, (1961) 42 ITR 49 is clearly on the point in which it has been held as follows: "xxx But the distinct heads specified in Section 6 indicating the sources are mutually exclusive and income derived from different sources falling under specific heads has to be computed for the purpose of taxation in the manner provided by the appropriate section. If the income from a source falls within a specific head set out in Section 6, the fact that it may indirectly be covered by another head will not make the income taxable under the latter head. The income derived by the company from shops and stalls is income received from property and falls under the specific head described in Section 9. The character of that income is not altered because it is received by a company formed with the object of developing and setting up markets. In United Commercial Bank Ltd. vs. Commissioner of Income Tax this court explained after an exhaustive review of the authorities that under the scheme of the Income Tax Act, 1922, the heads of income, profits and gains enumerated in the different clauses of Section 6 are mutually exclusive, each specific head covering items of income arising from a particular source." 22. However, in the present case, one has to consider whether on facts found by the Tribunal the rental income comes within the head income from house property or income from businesses. However, in the present case, one has to consider whether on facts found by the Tribunal the rental income comes within the head income from house property or income from businesses. True it is that the land over which the godown and market have been constructed, do not belong to the assessee and under common law, owner means a person who has got valid title legally conveyed to him, but having regard to the object of the Act, the owner shall be a person who is entitled to receive income from the property in its own right. In my opinion when a person in actual physical control of the property realizes the rent of the property for its own use and not for the use of any other person, having the absolute power of disposal of the income so received, is necessarily to be held as the owner for the tax liability. For the purpose of computation of income, the owner must be that person, who can exercise the rights of owner and not on behalf of the owner. here, in the present case, the assessees are receiving rental income in their own right with no person having better right to defeat their claim and hence, in my opinion, for the purpose of computation of income, they shall be deemed to be the owner of the property. 23. The view which I have taken, finds support from the judgment of the Supreme Court in the case of Commissioner of Income Tax vs. Poddar Cement Pvt. Ltd. and Others. (1997) 226 ITR 625 in which it has been held as follows: "xxx Thus, the juristic principle from the view-point of each one is to determine the true connotation of the term owner within the meaning of Section 22 of the Act in its practical sense, leaving the husk of the legal title beyond the domain of ownership for the purpose of this statutory provision. The reason is obvious. After all, who is to be taxed or assessed to be taxed more accuratelya person in receipt of money having actual control over the property with no person having better right to defeat his claim of possession or a person in legal parlance who may remain a remainder man, say, at the end or extinction of the period of occupation after, again say, a thousand years? The answer to this question in favour of the assessee would not merely be doing palpable injustice but would cause absurd inconvenience and would make the Legislature to be dubbed as being a party to a nonsensical legislation. One cannot reasonably and logically visualize as to when a person in actual physical control of the property realizing the entire income and usufructs of the property for his own use and not for the use of any other person, having the absolute power of disposal of the income so received, should be held not liable to tax merely because a vestige of legal ownership or a husk of title in the long run may yet clothe another person with the power of a residual ownership when such contingency arises which is not a case even here." 24. Thus, in my opinion, the assessees rental income is not fit to be excluded under the head income from house property only on the ground they do not own the land over which the godown and market have been constructed. 25. Though on my finding, the assessees are owner of the property for the purpose of the Act, still the point which falls for determination is as to whether the rent received by them shall come within the expression income from business or income from house property. The term business has been defined under Section 2(13) of the Act, which reads as follows: "2. in this Act, unless the context otherwise requires, (13). "business" includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture." 26. The definition of business under Section 2 (13) of the Act in my opinion is of wide amplitude and shall embrace within itself dealing in real property as also the activity of taking a property on lease, setting up a market thereon and letting out shops and stalls in the market. Here, the assessees have taken the land on lease and either constructed godowns, markets or developed the market. Thereafter, they gave those premises on rent. It cannot be said that in carrying out the adventure aforesaid, there was no element of uncertainty. In my opinion, it would also make no difference, if the assessees are Companies established with the object of buying and developing the property and promoting and setting up markets thereon. Thereafter, they gave those premises on rent. It cannot be said that in carrying out the adventure aforesaid, there was no element of uncertainty. In my opinion, it would also make no difference, if the assessees are Companies established with the object of buying and developing the property and promoting and setting up markets thereon. In fact, it will depend upon as to what the assessees do. The assessees as owners of the premises were in receipts, from hiring out their premises alongwith various other movable fittings and as such are receipts of an enterprise, quite distinct from the ordinary receipts which a landlord derives from letting out his property. Hence, in my opinion, the assessees were carrying on an adventure or concern in the nature of trade. 27. The view which I have taken, finds support from a judgment of the Supreme Court in the case of S.G. Mercantile Corporation P. Ltd. vs. Commissioner of Income Tax, Calcutta, which reads as follows: "xxx It is, therefore, manifest that Section 12 of the Act can be invoked in the present case only if we exclude the applicability of Section 10 by holding that the income of the appellant-company from the property in question is not income from business. The definition of the word "business", as given in Section 2(4) and reproduced above shows its wide amplitude and we agree with Mr. Chagla that it can embrace within itself dealing in real property as also the activity of taking a property on lease, setting up a market thereon and letting out the shops and stalls in the market." 28. The Supreme Court had the occasion to consider this question in the case of Karnani Properties Ltd. vs. Commissioner of Income Tax , West Bengal, (1971)82 ITR 547 in which it has been held as follows: "The receipts derived from hiring out their premises alongwith various movable fittings, and affording services in the way of heating, lighting and attendance, were receipts of an enterprise quite distinct from the ordinary receipts which a landlord derives from letting his property. Consequently, the owners of the premises were rightly held to be engaged in the carrying on a trade or business in their premises, the trade or business, in Lord Shaws language at page 37 of providing, or providing for, public entertainments. Consequently, the owners of the premises were rightly held to be engaged in the carrying on a trade or business in their premises, the trade or business, in Lord Shaws language at page 37 of providing, or providing for, public entertainments. There is nothing to prevent a landlord who has been assessed under Schedule-A in respect of his income as a property owner being also assessed under Schedule-D in respect of a trade, business or other enterprise carried on by him on his premises," 29. Now reverting to the decision of the Madras High Court in the case of New India Maritime Agencies (P) Ltd. (supra) same is clearly distinguishable. In the said case no part of the premises from which assessee received rent was used for business purpose and in that background it was held that the rental income was assessable as income from the property. This would be evident from the following passage of the judgment: "The question as to whether buildings owned by the assessee are capable of being regarded as commercial assets is not relevant for deciding as to whether, when those assets had not been used in the business of the assessee but were only let out, such rental income was to be assessed as "income from house property". 30. To put the record straight it may be mentioned here that Revenue has heavily relied on the decision of this Court in the case of Mithila Properties Publication and Contractor Enterprises Pvt. Ltd. (supra) to contend that rental income comes under income from house property. As this decision itself, as stated earlier, has been reversed by the Supreme Court it loses its efficacy and hence reliance on this judgment is clearly misplaced. 31. The discussions aforesaid, lead me to conclude that the rental income derived by the assessee does not come within the head income from house property but assessable under the head income from business. 32. Accordingly, all the references are answered in the affirmative and in favour of the assessee but against the Revenue. The two appeals filed by the Revenue are also dismissed, in the facts and circumstances of the case, there shall be no order as to costs. 33. Let a copy of this opinion be transmitted to the Patna Bench of the Income Tax Appellate Tribunal. Mihir Kumar Jha, J. 34 I agree.