SUHAS CHANDRA SEN, J.

( 1 ) THE relevant facts are that during the previous year relevant to the said assessment year, the petitioner received a sum of Rs. 21,20,000 from Messrs. Shaw Wallace and Company Limited as compensation on surrender of its monthly tenancy. The said tenancy was the capital asset of the petitioner and no cost of acquisition was incurred for its acquisition. In the assessment proceedings, the Assessing Officer accepted that the said sum could not be assessed to tax since there was no cost of acquisition of the said monthly tenancy.

( 2 ) 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 as a casual and non-recurring receipt under Section 10 (3) of the Act. For this proposition, he is seeking support from a decision of the Allahabad High Court in the case of CIT v. Gulab Chand [1991] 192 ITR 495.

( 3 ) IT is submitted on behalf of the writ petitioner that the proceedings initiated are wholly without jurisdiction and illegal. The proposed action is contrary to the law laid down by this court and the Supreme Court and against the basic principles of the income-tax law. No disputed questions of fact are involved. The issue is one of pure law going to the root of the jurisdiction. The condition precedent for exercise of the power, namely, the order of the Assessing Officer being erroneous and prejudicial to the Revenue does not exist. The alternative remedy is onerous and would cause undue hardship. A wholly unjust and arbitrary demand for huge amount would be raised and no justice can be expected from the Commissioner in the purported proceedings.

( 4 ) THE only basic and fundamental issue involved is whether a capital receipt which is not assessable as a capital gain can be assessed as a nonrecurring and

casual income by reference to Section 10 (3) of the Act. The case of the assessee is that the decision of the Allahabad High Court in Gulab Chand's case [1991] 192 ITR 495 is erroneous and contrary to well-settled principles of law.

( 5 ) AS against this contention of the respondent, the writ petition is not maintainable. The respondents submit that the instant application 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.

( 6 ) STRONG reliance has been placed on the case of CIT v. Ramendra Nath Ghosh [1971] 82 ITR 888, where the Supreme Court observed (at page 891) : "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 exercised its discretion in favour of the assessee in view of the adequate alternative remedy they had".

( 7 ) A similar view was taken by the Calcutta High Court in the case of Samnuggar Jute Factory Co. Ltd. v. CIT [1990] 181 ITR 221.

( 8 ) REFERRING to the decision cited on behalf of the petitioners, it has been contended on behalf of the respondents that the above decisions deal with the question whether a lump sum receipt is taxable as capital gains in the event the actual cost of

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