JUDGMENT

 This is an appeal from a judgment of the Calcutta High Court in a matter under the Income-tax Act. The judgment of the High Court is reported as A.Gasper v. Commr of Income-tax, (1979) 11 7 ITR 581.

2. The assessee was a tenant in a premises in 240E, Acharya Jagdish Chandra Bose Road, Calcutta. He was a monthly tenant in the property since 1940 under certain earlier landlords. On 27-3-1967, the landlords entered into an agreement for leasing out the property to Associated Battery Makers (Eastern) Limited permitting them to construct a building on the said premises. The assessee was also a party to the said agreement. As part of the agreement, the assessee received a sum of Rs. 4,50,000/ -in consideration of which he permitted the new lessees to put up the construction. He transferred his tenancy rights to Associated Batteries and became a licencee in respect of the premises under Associated Batteries. The sum of Rupees 4,50,000/ - was received in two instalments of Rs. 2,25,000/ - each, the first on 15-3-1967 and the second on 25-5-1967.

3. For the assessment year 1967-68, for which the previous year ended on 31-3-1967, the Income-tax Officer treated the sum of Rs. 2,25,000/ - less certain amounts paid to the landlord and solicitor and the statutory exemption (a net sum of Rs. 1,83,201/-) as capital gains. The assessees objections before the Appellate Assistant Commissioner and the Appellate Tribunal were unsuccessful. So also the reference before the High Court. Hence, the present appeal.

4. We may mention that in respect of the other sum of Rs. 2,50,000/ -, a sum of Rupees 76,475/- (being Rs. 2,50,000/- less available deductions) was assessed by the Officer in the assessment year 1968-69. The Tribunal which disposed of the appeal for 1968-69 also by the same order, deleted the addition observing that it was also assessable only in the assessment year 1967-68 and leaving the Department free to do so. It appears that no further proceedings have been taken in the matter. But we are not concerned with that amount here.

5. Three questions had been referred to the High Court by the Tribunal viz.:

1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessees right of tenancy under that Landlords constituted a capital asset within the meaning of Section 2(14) of the Income-tax Act 1961?

2. If the answer to questionNo.(l)is in the affirmative, whether, on the facts and in the circumstances of the case, Tribunal was right in holding that there was a transfer of the assessees right of tenancy under the Landlords within the meaning of Section 2(47) of the said Act?

3. If the answer to question No. (2) is in the affirmative, whether on the facts and in the circumstances of the case, the Tribunal was correct in holding that the sum of Rupees 1,83,201/- represented capital gains assessable under Section 45(1) of the said Act for the assessment year 1967-68 ?

6. Before us, learned counsel raised only one contention based on the decision of the SC in Commr. of Income-tax v. B.C. Srinivasa Setty, (1980) 128 ITR 294. He submits that, even assuming that assessee had a capital asset and that the consideration had been received for relinquishing some part of his rights in respect thereof, the entire sum of Rupees 2,25,000/could not have been brought to tax. He points out that the capital gains have to be computed under Section,48 of the Income-tax Act which provides for a deduction, among others, of the actual cost, of the asset to the assessee. He submits that the monthly lease of the premises which the assessee was enjoying was not acquired by him at any ascertainable cost, even assuming that it is a capital asset, it is capital asset of such a nature that its actual cost of acquisition cannot be ascertained. He, therefore, submits that the decision of the SC earlier referred to will squarely apply and that, therefore, no capital gains was chargeable to tax in respect of the amounts receiv