1993 (8) TMI 12 - HC - Income Tax

Summary

Issues Involved: The judgment deals with the issue of whether a capital receipt, not assessable as a capital gain, can be assessed as non-recurring and casual income under section 10(3) of the Income-tax Act, 1961.

Assessment Proceedings: The petitioner received a sum as compensation on surrender of a monthly tenancy, which was considered a capital asset with no cost of acquisition. The Assessing Officer initially accepted that the sum could not be taxed due to the lack of cost of acquisition.

Contention of the Assessee: The petitioner argued that the sum could not be assessed as capital gains and that the proposed assessment under section 10(3) was contrary to established law. The issue was deemed a pure question of law without disputed facts.

Legal Precedents: The Commissioner sought to rely on a decision of the Allahabad High Court in CIT v. Gulab Chand [1991] 192 ITR 495 to support the proposed assessment. However, the petitioner contended that this decision was erroneous and not applicable to the current case.

Maintainability of Writ Petition: The respondents argued that the writ petition was not maintainable due to the availability of alternative remedies, such as appeal. They cited previous cases emphasizing the need to exhaust alternative remedies before approaching the High Court.

Commissioner's Notice under Section 263: The Commissioner issued a notice under section 263 proposing to cancel the assessment and make a fresh assessment based on the alleged error in excluding the compensation sum from the total income, citing the Gulab Chand decision.

Decision of the Court: The court found the Commissioner's approach erroneous in law and quashed the notice under section 263. It was emphasized that the sum in question could not be taxed as casual and non-recurring income if not taxable as capital gains under section 45.

Alternative Remedy: Despite the general rule of not intervening at the notice stage under section 263, the court found no adequate alternative remedy for the petitioner in this case. The writ petition was successful, and any orders passed pursuant to the notice were also quashed.