TaxTMI 
TaxTMI 
TaxTMI 
2011 (11) TMI 83
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....ome taxable under Section 10(3) following the decision of Allahabad High Court in CIT versus Gulab Chand, (1991) 192 ITR 495 for the following reasons:- (i) The respondent assessee was not a tenant. (ii) The amount received was not a capital receipt but a casual and non-recurring income under Section 10(3) of the Act. 4. On appeal filed by the respondent assessee, CIT(Appeals) deleted the said addition holding that the amount received was towards surrender of tenancy rights and in view of the judgment of the Delhi High Court in Bawa Shiv Charan Singh (supra) the said amount was not taxable as capital gains. It was also held that Section 10(3) is not applicable as an amount received on surrender of tenancy rights is not a casual and non-recurring receipt, but a capital receipt. 5. The Revenue preferred an appeal before the Income Tax Appellate Tribunal (tribunal, for short), which has been dismissed by the impugned order dated 19th February, 2003. 6. We have heard Mr. Kamal Sawhney, Sr. Standing Counsel for the appellant and examined the findings recorded by the authorities and the tribunal. 7. Ram Krishan Dalmia and his family earlier had controlling interest in M/s Bennet Co....
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....Though genetically the parentage of these two legal concepts is different, one owing its origin to contract and the other to rent control legislation, they are equated with each other and their incidents are the same. If a contractual tenant has an estate or interest in the premises which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate or interest is the result of contract while in the other, it is the result of statute. But the quality of the estate or interest is the same in both cases." 10. Amarendra Nath Sen J. in Gian Devi Anand (supra) has also dealt with the above issue. He observed as under: "18. ...We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has been determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises, which he occupies is derived from the provisions of the English R....
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....n urged by Mr Gupte that the appellant having deposited the rent up to March 31, 1954 and the Municipal Commissioner having accepted it he should be deemed to be a tenant holding over. Leaving aside for the moment the contention put forward on behalf of the Corporation that this payment was made behind its back, it has to be noted that the payment was at the rate prevailing before September 30, 1949 and on that date the Corporation having passed a resolution specifying a new rate of rent of Rs 9 per Chasma the payment at the old rate by the appellant and its acceptance by the Municipal Commissioner was not an acceptance of rent as such and in clear recognition of the tenancy right of the appellant. It cannot amount to the Corporation consenting to the appellant continuing as a tenant by paying the old rates of rent. There is thus no question of the appellant being a tenant holding over. But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance. The position at law was explained in Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden as follows: "On the determination of a lease, i....
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....there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden case the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it." 12. In view of the aforesaid position, we do not find any reason to hold that what was surrendered by the respondent assessee was not tenancy rights but some other "rights". It may be noted here that the Assessing Officer in the assessment order has not specified or stated what was the nature and character of the right, wh....
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....of income provided for in the sections of the Income Tax Act, 1922 are mutually exclusive and where any item of income falls specifically under one head, it has to be charged under that head and no other. In other words, income derived from different sources falling under a specific head has to be computed for the purposes of taxation in the manner provided by the appropriate section and no other. It has been further held by this Court in East India Housing and Land Development Trust Ltd. v. CIT that if the income from a source falls within a specific head, the fact that it may indirectly be covered by another head will not make the income taxable under the latter head. (See also CIT v. Chugandas and Co.) 14. Section 14 of the Income Tax Act, 1961 as it stood at the relevant time similarly provided that "all income shall, for the purposes of charge of income tax and computation of total income, be classified under the following [six] heads of income", namely: (A) Salaries; (B) Interest on securities; (C) Income from house property; (D) Profits and gains of business or profession; (E) Capital gains; (F) Income from other sources unless otherwise provided in the Act. 15. Sect....