TaxTMI 
TaxTMI 
2011 (11) TMI 395
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....he assessee has no tenancy right to transfer, the income cannot possibly be charged under the head of "Capital Gains". 3. On appeal filed by the assessee, it was held that the amount received was a capital receipt but the said amount is not taxable as capital gains in view of the decision of the Delhi High Court in Bawa Shiv Charan Singh versus CIT, (1984) 149 ITR 29. It was held that the said amount cannot be taxed under Section 10(3) of the Act. The addition made was deleted. 4. The Revenue preferred a further appeal before the Income Tax Appellate Tribunal but did not succeed on the said question. 5. It is noticeable that the Additional Commissioner of Income Tax in his order under Section 144A of the Act dated 9th March, 1996 had examined the question of tenancy right and the consideration received. He had observed that the property was originally taken on lease on a monthly rent of Rs.1,000/- by Ram Krishan Dalmia for a period of three years, which came to an end on 31st December, 1961. Further, Ram Krishan Dalmia was in occupation of the property since January, 1953 and continued to be in occupation even after the period specified in the lease deed had come to an en....
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....oncepts 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 Rent Acts. But it is not clear how it can be as....
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.... 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, it is the duty of the lessee t....
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....efinite 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 newtenancy 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. The agreement dated 14th August, 1992 referred to by the Additional Commissoner of Income Tax specifically stipulates that the four children of Ram Krishan Dalmia were tenant a paying monthly rent of Rs.5,000/- but Delhi Rent Control Act, 1958 was applicable because the monthly rent was more than Rs.3,500/-. The landlord-owner admitted ....
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.... assessee under any other section. This Court, as early as in 1957 had, in United Commercial Bank Ltd. v. CIT held that the heads 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....