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9. He also drew our attention to various clauses of the lease deed which empowers the assessee lessee to raise the construction on the leasehold plot and after that construction he is at liberty to sub-let, mortgage, assign, sell and otherwise deal with the leasehold interest in the demised premises or building or buildings to be constructed thereon. He further submits that this is the first year and in subsequent years even the Department has itself assessed the rental income as income from the house property. In 1991-92 the Assessing Officer has assessed the rental income as income from other sources. In appeal before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) has directed that the rental income should be assessed as income from "house property". In 1992-93, again the Assessing Officer has assessed the rental income as income from house property. In all subsequent years, the assessee has disclosed the rental income as income from house property and that has been accepted and an intimation has been communicated under Section 143(1)(a) of the Act.

10. Before we go into the facts, we would prefer to refer to the observations of this court and other courts. In the case of CIT v. Supreme Credit Corporation Ltd. [1998] 230 ITR 700, wherein this court has considered that when the plot is a leasehold property and if the lessee raised the construction he is the owner of the leasehold property. This court has taken the view that if the lessee has not constructed any construction on the leasehold property, he cannot be the owner of the leasehold property.

20. We also agree with the decision taken by the Rajasthan High Court in CIT v. Vimal Chand Golecha [1993] 201 ITR 442. When the leasehold interest in the plot of land acquired by the assessee under the lease deed that can be treated as a separate asset than the building raised on that plot by the assessee subsequently. Therefore, if the interest in the leasehold plot or the leasehold plot is held by the assessee for more than three years the sale proceeds of that interest is assessable as long-term capital gain and the structure if sold before the expiry of three years, the sale proceeds received on account of the sale of the structure that can be taxed as short-term capital gains as held by the Tribunal, for taxing capital gains separately for land and building. The burden will be on the assessee to satisfy how much of the sale proceeds should be apportioned for the land and how much of the sale proceeds pertained to the structure.