TMI Blog1993 (8) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be assessed to tax since there was no cost of acquisition of the said monthly tenancy. The contention made on behalf of the assessee is that the view of the Assessing Officer is in consonance with the Division Bench decision of this court and other High Courts and the Supreme Court. The decision of the Division Bench of this court is in the case of CIT v. Mangtu Ram Jaipuria [1991] 192 ITR 533. The Commissioner in the notice initiating the proceedings is not disputing this aspect and is accepting the fact that the said sum could not be assessed as there was no cost of acquisition of the monthly tenancy. The Commissioner, however, is seeking to hold that though the said sum was not assessable as capital gains it could be assessed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable as it is barred, inter alia, by the availability of alternative remedy. There was no jurisdictional error in issuing the impugned notice under section 263 of the Income-tax Act. The impugned notice is the last annexure to the petition. Strong reliance has been placed on the case of CIT v. Ramendra Nath Ghosh [1971] 82 ITR 888, where the Supreme Court observed : " The Income-tax Act provides for an appeal against the order under section 33B. Normally, the assessee should have gone up in appeal against the order under section 33B. They should not have been allowed to invoke the extraordinary jurisdiction of the High Court. This court has emphasised that aspect in more than one decision....The High Court should not have e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be ascertained. The Supreme Court dismissed the appeal and affirmed the judgment of the Calcutta High Court. The Supreme Court held that the point of cost of acquisition of capital assets was not argued and relied upon the admission of learned counsel in the third paragraph of page 386 of the report. It has been stated by the Commissioner in the notice under section 263 : " Your income-tax assessment for the assessment year 1989-90 was completed under section 143(3)/144A on January 2, 1991, on a total income of Rs. 81,900. Scrutiny of your assessment records reveals that during the relevant previous year you received a sum of Rs. 21,20,000 from one Messrs. Shaw Wallace and Co. as compensation towards surrender of tenancy rights. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court. Moreover, the amount received as capital gain cannot be taxed as casual and non-recurring income. The argument on behalf of the Revenue if taken to its logical conclusion would mean that everything that is exempted from the capital gain by the statute will be taxed as a casual and non-recurring receipt. If an assessee sells a house property and utilises the receipt for purchase of another house property, the sale proceeds cannot be treated and taxed as a casual and non-recurring receipt. Capital gains have been specifically dealt with in sections 45 to 55 of the Income-tax Act. Whether any amount received on transfer of a capital asset is liable to be taxed or not will be decided in accordance with the specific provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be included in the computation of total income of a person. A casual and non-recurring receipt not exceeding Rs. 1,000 will not be taxed. From these it does not follow that any capital receipt over and above Rs. 1,000 will have to be taxed. If a person receives Rs. 10,000 by way of legacy, the amount cannot be brought to charge on the ground that it is a casual and non-recurring receipt above Rs. 1,000. Section 10 is not a charging section. It merely specifically excludes certain types of income from the ambit of " total income " as defined under the Act. The case of the Commissioner as stated in the notice is not to bring the sum of Rs. 21,20,000 to tax as capital gain but to treat it as taxable otherwise on the strength of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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