TMI Blog1999 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ant vide Misc. suit No. 57 of 1957 before the Sub-Judge. Vide order dated 27th December, 1960, the suit of eviction was dismissed. It was held by the Sub-Judge that the tenancy was not for 11 months and 29 days because the landlord charged one year's rent in advance. 4. Being aggrieved of the order of Sub-Judge, landlord filed appeal before the Distt. Judge, who also dismissed the appeal vide order dated 16th August, 1973. It was held, inter alia, that the ground for eviction did not exist, as the premises were not only let out for residential, but for official purposes also. 5. A Revision Petition was filed before the Hon'ble High Court of Delhi. The question in the revision petition was in relation to the computation of standard rent for the suit premises. In other words, it was accepted that the assessee will continue to use the premises as a tenant. The petition filed by the landlord was partly allowed vide order dated 9th December, 1977 in Civil Revision Petition No. 666 of 1973. 6. From 1977 to 1991, rent was accepted by the landlord. Thereafter on 21st May, 1990, an agreement for sale was prepared. Vide sale deed dated 13th March, 1991 the property in question was tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt. What distinguished rent from premium is that the latter represented money paid as price or a consideration for being let in possession. Our attention was also invited on the amendment made to section 55(2)(a) by the Finance Act, 1994 with effect from 1-4-1995. To buttress the point, Mr. Syali made reference to some precedents also. 10. According to Shri Syali, a month to month tenancy is not different from a yearly or other tenancy for the purpose of protection of Rent Control legislation. The assessee can be construed to be a tenant by holding over. His tenancy was acknowledged in the sale deed by the landlord itself. It was further stated that the tenancy was attorned by the original landlord in favour of the purchaser landlord. 11. Reference was also made to section 2(24)(vi) of the Act. It was argued that capital receipt receipt can be considered to be income only within the meaning of this section. Prior to its insertion it was not exigible to tax. Shri Syali stated that for the present income is not to be understood in its wider connotation enabling legislative exercise but in strict sense within the ken of the Income-tax Act. Referring to the history of taxatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 15. The issue of relevant in the present appeal was decided by the Special Bench of Tribunal in the case of Cadell Wvg. Mill Co. (P.) Ltd v. Asstt. CIT [1995] 55 ITD 137 (Bom.). Shri Syali submitted that this decision was rendered specifically with reference to the provisions of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947. Section 12 thereof only entitled statutory tenant to continue to be in possession till standard rent or permitted increases are paid. Thus, in the case before the Bombay Special Bench a statutory tenant did not have an estate or interest capable of being transferred. This Special Bench in reaching the conclusion relied upon the decision in Anand Niwas (P.) Ltd v. Anandji Kalyanji Pedhi AIR. 1979 SC 144. The Supreme Court in Smt. Gian Devi Anand v. Jeevan Kumar AIR 1985 SC 796 has held that under the Delhi Rent Control Act a tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. In view of the specific decision of the Hon'ble Supreme Court in Smt. Gian Devi Anand's case under the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, Shri Syali submitted that this decision is not a binding precedent because - (a) It is against the decision of jurisdictional High Court; (b) The Karnataka High Court in Joy Ice-Creams (Bang.) (P.) Ltd.'s case took a view contrary to the decision of the Allahabad High Court; (c) The Calcutta High Court in the case of B.K. Roy (P.) Ltd. v. CIT [1995] 211 ITR 500 specifically dissented in writ jurisdiction from the view taken by the Allahabad High Court; and (d) The Special Bench in Cadell Wvg. Mill Co. (P.) Ltd.'s case has held the same as not applicable in cases where the tenant has an estate or interest in the tenanted premises. 18. Ms. Prem Lata Bansal, Advocate, appeared on behalf of the Revenue. It was vehemently contended that the receipt on surrender of tenancy right is an income under section 2(24) of the Act. Dealing with the concept of income, Ms. Bansal, stated that the word 'income' is of wide import. It includes within its ambit all kind of receipts resulting in profit and gain or any kind of benefit; whether of the nature of capital or revenue. Its meaning cannot be abridged in any sense. The definition of 'income' contained in section 2(24) is inclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Wealth-tax Act. It excludes the interest of an assessee, in a property held for a period not exceeding 6 years from the definition of the "asset". Admittedly, the assessee is a statutory monthly tenant. Therefore, the right of the assessee cannot be construed to be "asset". Reference was also made to the provisions of section 6(d) of the Transfer of Property Act, which prescribes as under:- "An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him." On that basis it was argued that the assessee did not possess any transferable right in the property. 22. Next it was argued that the statutory tenancy is not transferable. It is only inheritable to a limited extent. Reference was made to section 2-L(ii) read along with Explanations I, II and III of the DRC Act. It was explained that the statutory tenant has limited right in the property. This right is of the nature of right in personam. Even the heirs of the statutory tenant can inherit the property only for a period of one year. On the expiry of this time the right of such successor comes to an end. It is, therefore, beyond the competence of a statutory tenant to alienate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to determine the date of acquisition of the asset. Therefore, it is outside the purview of section 45. On this background, it was contended that the tenancy right, in respect of which the cost of acquisition is not discernible cannot be construed to be capital asset and if it is not capital asset, then the provision of section 45 will not come into picture. 26. Ms. Bansal relied on the decision of the Allahabad High Court rendered in the case of Gulab Chand wherein it was held that even if a receipt is of capital nature and capital gain is not chargeable under section 45 as per the reasoning in B.C. Srinivasa Setty's case, it must be held to be a receipt of casual and non-recurring nature within the meaning of section 10(3). It was stated that the decisions of the Karnataka High Court in Joy Ice-Creams (Bang.) (P.) Ltd's case and Calcutta High Court in B.K. Roy (P.) Ltd's case are not binding precedents. Ms. Bansal also relied on the decision of the Special Bench rendered by the Tribunal in the case of Cadell Wvg. Mill Co. (P.) Ltd. 27. We have heard the rival submissions in the light of material placed before us and the precedents relied upon. First we need to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dead woods. Broadly the controversy set out in the present appeal was silenced by the decision of the Special Bench rendered in Cadell Wvg. Mill Co. (P.) Ltd.'s case. But in the present appeal, certain new points were raised. Both the parties placed reliance on the Cadell Wvg. Mill Co.(P.) Ltd's case. It was contended that Cadell Wvg. Mill Co. (P.) Ltd's case is the milestone, but it should not be treated as the touchstone to decide the controversy raised in the present appeal. The facts of the Cadell Wvg. Mill Co. (P.) Ltd's case were said to be different from that of the present case. 32. Each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid temptation as said by Cordozo, by matching the colour of one case against the colour of another. 33. In the case of Cadell Wvg. Mill Co. (P.) Ltd, Tribunal decided the issue with reference to the provisions of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947. The provisions of which are not in, pari materia, with the DRC Act. Section 12 of the Bombay Act entitled stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 48(1)(b) of the DRC Act implicates the penalty on the person in contravention of provision of Section 5 of DRC Act with simple imprisonment or with fine prescribed in the section. But when owner himself meets the expectations of the tenant how recourse could be made to the aforesaid prohibitory and punitive provisions of the DRC Act. This amply demonstrates that the "right to possession" or in other words "right to restrain the real owner from the enjoyment of the possession of the premises" is indeed a valuable right. These sections cannot be held as placing any embargo, restriction or prohibition on surrender of tenancy rights to the owner of the premises. 37. Property is a term of widest import and it signifies every possible interest which a person can acquire, hold or enjoy. It refers to both tangible as well as intangible assets. It includes within its ambit those well recognised types of interest which have the insignia and characteristic of proprietary right. As there is no definition given to the word 'property' in the Act, 'property' must be construed in its plain and natural meaning subject to the context in which that expression occurs. 38. The word "transfer" is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of tenancy right can be made exigible to tax under section 10(3) of the Act, as casual income. Section 10 does not tax an item which is capital per se. The title of the section 10 is: "INCOMES NOT INCLUDED IN TOTAL INCOME". This heading is relevant in construing the purport of the section. We are reminded of the phrase: "A RUBRO AD NIGRUM" [from the red to the black]. Formerly the title of a statute was written in red while its body was written in black, and the phrase meant the process of interpreting a statute with reference to its title. In order to bring an item within the ambit of section 10(3), it is a condition precedent that item must bear the character of income. 43. In the case of Smt. Anand Bala Bhushan, it was held:- "The receipt of compensation was not of the nature of ordinary income and, therefore, the question of treating the same as a casual receipt for the purposes of income-tax did not arise." The Hon'ble Allahabad High Court did not refer here the case of Gulab Chand. But a different view was taken in the matter. 44. Income is an ordinary word in the English language and, unless the context otherwise requires, it should be given its ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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