Ashok Kumar Mathur, Ronojit Kumar Mitra

( 1 ) THIS appeal is directed against the order passed by the learned single judge whereby the learned single judge, by his order dated August 5, 1993, has quashed the show-cause notice issued by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961. Aggrieved by that order, the present appeal has been preferred.

( 2 ) IT is not necessary to go into the detailed facts. Suffice it to say, a question of law has arisen as to whether the money which has been received by the assessee for surrendering his tenancy right can be considered to be capital gains or not ?

( 3 ) THE brief facts which are necessary for disposal of this appeal are that the assessee received a sum of Rs. 21,30,000 from Shaw Wallace Company as compensation on surrendering his monthly tenancy. The said tenancy was a capital asset of the assessee and no cost was incurred for its acquisition. In the assessment proceedings, the Assessing Officer held that the said sum could not be assessed to tax since there was no cost of acquisition of the said monthly tenancy. However, the Commissioner of Income-tax issued a notice under section 263 of the Act to the effect that the order passed by the Assessing Officer was prejudicial to the interests of the Revenue. Therefore, he exercised revisional power and issued show-cause notice.

( 4 ) AGAINST this show-cause notice the writ petition was filed by the petitioner by challenging that the order passed by the Commissioner of Income-tax, on the face of it, was illegal and contrary to the law laid down by this court in the case of Gasper (A.) v. CIT [1979] 117 ITR 581. Therefore, the learned single judge embarked upon further enquiry.

( 5 ) IT is submitted on behalf of the Revenue that the present case is squarely covered by the decision of the Allahabad High Court given in the case of CIT v. Gulub Chand. Therein the Division Bench of the Allahabad High Court took the view that such kind of windfall shall be treated to be casual and non-recurring under Sub-section (3) of Section 10 of the Act.

( 6 ) THE learned single judge, after considering the matter, observed that since the Calcutta High Court had taken a different view from that taken by the Allahabad High Court and the same had been confirmed by the Supreme Court in the case of Gasper (A.) v. CIT , the learned single judge found that the show-cause notice issued by the Commissioner in exercise of power under Section 263 of the Act was not correct and he quashed that notice. Aggrieved by this order, the present appeal has been preferred by the Revenue.

( 7 ) WE have heard learned counsel for the parties and perused the records. Apparently, both the decisions, i. e. , the decision given by the Allahabad High Court in the case of CIT v. Gulab Chand and that of the Calcutta High Court in the case of Gasper (A.) v. CIT are in conflict with each other.

( 8 ) IT appears that the attention of the learned Commissioner has escaped the judgment of the Calcutta High Court and he relied on a judgment of the Allahabad High Court and issued a show-cause notice. For the purpose of judicial hierarchy and for the purpose of judicial comity it is necessary that once a Division Bench judgment is given by this court, that should be normally followed unless for some compelling reasons or discriminatory facts the same is overruled by the apex court. In the case of Gasper (A.) v. CIT and in an almost identical situation when the assessee surrendered his leasing right and he was paid certain compensation, that amount has been treated to be a capital gain and it has not been treated as a casual and non-recurring receipt. As against this, the Allahabad High Court has taken a contrary view and treated the same to be a casual and non-recurring receipt. But this question is now no more res integra in view of the amended Section 55 of the Income-tax Act and now such kind of incomes have been specifically mentioned as capital gains. Th

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