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2012 (9) TMI 37 - HC - Income TaxReceipt on account of surrender of tenancy rights - Tribunal held that the receipt is a capital receipt but refusing to look at the question of taxing the same as capital gains - Held that:- On reading of the Commissioner's order shows the admitted fact that as per the memorandum of understanding executed on 25.02.1994 the assessee's status as a tenant was not disputed and the genuineness of the document remained unassailed by the Revenue. Hence, the admitted fact position is that the assessee was a tenant. The only ground on which the order of the Assessing Officer was sought to be revised was the character of the receipt alone and the CIT (A) held that it was to be assessed as income under Section 10(3) - whatever might have been the terms of understanding under the lease deeds dated 28.08.1978, as far as the present case is concerned, the right to receive compensation is traceable to the document dated 25.02.1994. Consequently, it is not open to the Revenue to contend that the order of the Commissioner could be sustained on a different fact situation, a position which is not open to the Revenue to contend so. Having regard to the unworkability of the provisions of section 45 and that Section 55 itself was introduced relevant only to the subsequent assessment year, namely, 1995-96, the Apex Court held that till the amendment in 1995, the compensation received on surrendering the tenancy rights could not be assessed to capital gains. Thus, on the fact position as found by the Tribunal and which form the very basis of the order under Section 263 that the assessee was treated as tenants as per the document dated 25.02.1994, the genuineness of which was never questioned by the Revenue no hesitation in confirming the order of the Tribunal.
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