S.S. Chadha, J.

1. This reference under Section 256 (1) of the Income-tax Act, 1961 (hereinafter referred to as the) poses the following question for the opinion of this Court:

Whether on the facts and in the circumstances of the case and on a correct interpretation of the provisions of Section 2 (14), Section 45 and Section 48 of the I.T. Act, 1961, the Tribunal was justified in holding that capital gains had arisen on the receipt of Rs. 30,000 on surrendering of tenancy rights of the first floor of premises 710, Ballimaran, Chandni Chowk, Delhi

2. The facts briefly are these. The assessment year under reference is 1966-67 of which the relevant previous year is the financial year ending March 31, 1966. The assessee is an individual and is engaged in profession as an advocate. He carried on his professional work till the accounting year relevant to the assessment year 1963-64 and thereafter the assessee carried on the same profession in partnership with another advocate. The assessee took the premises at 710, Ballimaran, Chandni Chowk, Delhi on rent in 1947-48. During the relevant accounting year, the assessee surrendered the tenancy rights of the first floor of the said premises. The assessee received on March 18, 1966 an amount of Rs. 30,000 for surrendering the said premises in favour of All India Bank Employees Association. The Income-tax Officer took the view that the assessees tenancy rights vis-a-vis 710, Ballimaran, Chandni Chowk, Delhi represented a capital asset and that the amount of Rs. 30,000 was assessable as capital gains under Section 45 of the. The Income-tax Officer, accordingly, included the amount of Rs. 25,000 as capital gains being the net amount after allowing the statutory exemption in the assessees total income rejecting the assessees contention to the contrary.

3. An appeal was filed by the assessee before the Appellate Assistant Commissioner who held that the tenancy rights did represent the capital assets but no capital gains could arise to the assessee by surrender of the rights, because the tenancy rights had not cost the assessee anything and that they were not purchased by him. The Appellate Assistant Commissioner deleted the amount of Rs. 25,000 from the assessees total income.

4. The department went in second appeal before the Income-tax Appellate Tribunal (for short called the Tribunal). It was contended that the Appellate Assistant Commissioner had accepted the position that the tenancy rights represented a capital asset and that there could be no dispute that the assessee had relinquished or surrendered the capital asset. The departmental representative urged that the amount of Rs. 30,000 had to be considered for being processed as capital gains and that it was for the assessee to lead evidence about the actual cost of assets at the time of its acquisition or at least the market value of the asset as on January 1, 1954. The Tribunal allowed the departments appeal. It was held that the tenancy rights represented a capital asset because Section 2(14) made it clear that capital asset included property of any kind held by an assessee and the tenancy rights did represent rights of property, that the tenancy rights have clearly to be distinguished from goodwill in which case there may be some difficulty about determing the actual cost of acquisition of goodwill but such a difficulty would not arise in case of tenancy rights and that at any rate there would be no difficulty in determining the market value of the tenancy rights as on January 1, 1954. The question was posed in another way by the Tribunal for its answer. It observed that the question would be as to what would be the Pagri which the assessee would have got on January 1, 1954 for surrendering the accommodation and that this amount would have to be deducted from Rs. 30,000 before arriving at the capital gains. The Tribunal set aside the finding of the Appellate Assistant Commissioner and restored the appeal to his file and directed it to dispose of the appeal after determining the capital gains on the basis indicated in the Tribunals order. The Appellate Assistant Commissioner was called upon to determine the value of tenancy rights as on January 1, 1954 and then to deduct the amount from Rs. 30,000 which the assessee received. It opined that the balance was to represent the capital gains subject to statutory exemption.

5. Capital asset is defined by Section 2 (14) of theto mean property of any kind held by an assessee, whether or not connected with his business or profession, but does not include the specified items of property. The leasehold rights do not come under any of the exclusions contemplated by that definition. Property is a term of widest import and subject to any limitations which the context may require, it signifies every possible interest which a person can acquire, hold and enjoy (See Ahmed G. Shah v. Commissioner of Wealth-tax, 76 ITR 471) [LQ/SC/1969/288] . The wordtransferas defined in Section 2(47), in relation to a capital asset, includes the sale, exchange of relinquishment of the asset or the extinguishment of any rights therein or the compulsory acquisition thereof under any law. The assessee took the premises at 710, Ballimaran, Chandni Chowk, Delhi on rent in 1947-48. The grant of the tenancy rights, to the assessee did not cost him anything and they were not purchased by him. The Appellate Assistant Commissioner had accepted this as a fact and there is no challenge to this finding before the Tribunal. On March 18, 1966 the assessee received an amount of Rs. 30,000 for surrendering his tenancy rights. In my opinion, although it is disputed by the assessee, the tenancy right is property. A lease of immovable property is a transfer of a right to enjoy such property. It is a demise i.e. a partial transfer by way of lease. Such an interest of a tenant is a right to property within the meaning of Article 19(1) (f) of the Constitution. The estate transferred is called leasehold. The right of a lessee is an estate or interest in the premises and that, in the absence of a contract to the contrary, it is transferable property. The estate of a lessee is also an estate of inheritance. The leasehold rights would thus be a capital asset. In A Gasper v. Commissioner of Income-tax, 117 ITR 581 [LQ/CalHC/1978/195] the Calcutta High Court held that the assessees monthly tenancy or leasehold right is a capital asset. The assessee in this case received an amount of Rs. 30,000 for surrendering the office premises and by this surrender his rights in it stood extinguished. The transfer in relation to a capital asset includes the extinguishment of any right and thus the capital asset was transferred within the meaning of the.

6. I may also notice the impact of the payment of monthly rent vis-a-vis this capital asset. The lease is defined under the provisions of the Transfer of Property Act, 1882 in Section 105. The consideration for a lease may be of a price paid or promised, or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transfer by the transferee. Normally the initial amount paid for the acquisition of the leasehold right is Premium, Pagri, Salami or by whatever name it may be called. This is in consideration of being let in possession. The consideration for relinquishment of the tenancy rights may again be a lump sum called Pagri. The periodical payment in terms of money for the use and occupation of the premises is called rent or lease money. What distinguishes rent from premium is the latter represents money paid as a price or a consideration for being let in possession. Pagri is a consideration for the creation or surrender of the property or the relinquishment of the leasehold rights. A number of cases have arisen under the Income-tax Act while considering the question of capital receipt. When the interest of the lessor is parted for a price the price paid is premium or salami but the periodical payments made for the continuous enjoyment of the benefits under the lease are on the nature of rent; the former is a capital receipt and the latter a revenue receipt. Parties may camouflage the real nature of the transaction by using clever phraseology and, therefore, it is not the form but the circumstances of the transaction that matters. The nomenclature used may not be decisive or conclusive but it helps the Courts, having regard to the other circumstances, to ascertain the intention of the parties (See Commissioner of Income-tax v. Panbari Tea Co Ltd., 57 ITR 422 [LQ/SC/1965/143] . Rent is a revenue expenditure and does not go in the cost of the capital asset. The periodic payments of rent made by the assessee are thus not for the acquisition of the capital asset of leasehold rights.

7. The question then arises whether this transfer of the capital asset gives arise to a capital gain for the purpose of the. At the relevant time, Sections 45, 48 and 55(2) (i) read as follows:

45. Capital gains

(1) Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in Sections 53, 54, 54B and 54D, be chargeable to income-tax under the head Capital gains, and shall be deemed to be the income of the previous year in which the transfer took place.

48. Mode of computation and deductions

The income chargeable under the head Capital gains shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely:

(i) expenditure incurred wholly and exclusively in connection with such transfer;

(ii) the cost of acquisition of the capital asset and the cost of any improvement thereto.

55(2)(i) Cost of acquisition

Where the capital asset became the property of the assessee before the 1st day of January, 1954, means the cost of acquisition of the asset to the assessee or the fair market value of the asset on the 1st day of January, 1954, at the option of the assessee.

8. Section 45 charges the profits or gains arising from the transfer of a capital asset effected in the previous and by a legal fiction it is deemed to be the income of the previous year in which the transfer took place. Though Sections 4 and 5 of theare the charging sections, yet Section 45 in a way is a charging section. For the purpose of imposing the charge, the legislature has enacted detailed provisions in Sections 48, 49 and 55 in order to compute the profits or gains under that head. Section 48 lays down the mode of computation of the capital gain. The amount of capital gains has to be arrived at by deducting two specified items, namely, (i) expenditure incurred wholly and exclusively in connection with such transfer and (ii) the cost of acquisition of the capital asset and the cost of any improvement thereto, from the full value of the consideration for which the transfer is made. Section 55 defines the cost of acquisition and cost of improvement. Cost of acquisition means the cost of acquisition of the asset to the assessee where the capital asset became the property of the assessee before the 1st day of January, 1954. A cost to the assessee in the acquisition of the asset is thus clearly contemplated. The charging section and the computation provisions together constitute an integrated code for the purpose of ascertaining whether the transfer of the tenancy rights which is a capital asset gives rise to a capital gain for the purposes of the. If the computation provisions cannot apply at all to a given case, then such a case could not be intended by the legislature to fall within the charging section. The value of the tenancy rights may be called Pagri, Premium or Salami etc., but it is an intangible property. Though immaterial, it is materially valued. The assessee took the premises on rent in the year 1947-48. The tenancy rights had not cost the assessee anything and they were not purchased by him. On March 18, 1966 the assessee received an amount of Rs. 30,000 i.e. Pagri for relinquishment of the tenancy premises or surrender of the tenancy rights. A variety of elements contribute in the making of the value of the tenancy rights, but there can be no account in value of the factors producing it. It is a composite thing referable in part to its locality, in part the use to which the premises are put, in part to the nature of the business carried if commercial premises, in part to the success of the business conducted, in part to the trend of the customers or litigants, in part to the likelihood of the competition and in part to several other unpredictable factors, like whims and eccentricities of the persons wanting to acquire the tenancy rights. The value may fluctuate from one day to another day depending upon the uncertain demand and supply of the comparable premises. It increases or it may decrease, but such increase or decrease is not like the periodic waning and waxing of the moon. In the year 1947-48 there was no premium. It is not possible to predicate as to the exact moment of its birth and the rate or period of its growth. The process of the growth in value is imperceptible. It is self-created without any contribution by the assessee monetarily or otherwise. The fact remains that the capital asset has been acquired by the assessee without the payment of any money. It is, therefore, not possible to ascertain in this case when the assessee did not pay any amount in the acquisition of the tenancy rights, as to what is the cost of acquisition or cost of improvement for the purpose of computation of capital gains under Section 48. If whole of the value of the capital asset transferred is brought to tax, then what would be charged is the capital value of the asset and not any profit or gains as contemplated in Section 45.

9. In Commissioner of Income-tax, Bangalore v. B.C. Srinivasa Setty, 128 ITR 294 [LQ/SC/1981/96] . the SC was concerned with the capital asset of goodwill generated in a new business. The date of acquisition of the asset was a material factor in applying the computation provisions pertaining to capital gain, but in case of goodwill generated in a new business it was not possible to determine on what date it came into existence. It was held that the charging section and the computation provisions together constitute an integrated code and that when there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. It was observed that all transactions encompassed by Section 45 of themust fall under the governance of its computation provisions and a transaction to which those provisions cannot be applied must be regarded as never intended by Section 45 to be the subject of the charge. It was held:

What is contemplated is an asset in the acquisition of which it is possible to envisage a cost. The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it. It is immaterial that although the asset belongs to such a class, it may, on the facts of a certain case, be acquired without the payment of money. That kind of case is covered by Section 49 and its cost, for the purpose of s. 48, is determined in accordance with those provisions. There are other provisions which indicate that Section 48 is concerned with an asset capable of acquisition at a cost. Section 50 is one such provision. So also is Sub-Section (2) of Section 55. None of the provisions pertaining to the head Capital gains suggests that they include an asset in the acquisition of which no cost at all can be conceived. Yet there are assets which are acquired by way of production in which no cost element can be identified or envisaged. From what has gone before, it is apparent that the goodwill generated in a new business has been so regarded. The elements which create it have already been detailed. In such a case, when the asset is sold and the consideration is brought to tax, what is charged is the capital value of the asset and not any profit or gain.

10. In a subsequent case before the Bombay High Court in Evans Fraser and Co. Ltd. v. Commissioner of Income-tax, Bombay City-II, 137 ITR 493 [LQ/BomHC/1981/268] , a question arose about the transfer of goodwill acquired by the assessee from another. Acquisition of the goodwill of the business is, without doubt, acquisition of a capital asset, but merely because it is a capital asset, it does not mean that it becomes automatically subject to the charge of capital gain tax. The Bombay High Court made a reference to various decided cases and came to the conclusion that the charging section and the computation provisions in the together constitute an integrated code and, in a case to which the computation provision cannot apply, the charging section will not also apply. It was held that the income chargeable to capital gains tax is to be computed by deducting from the full value of the consideration the cost of acquisition of the capital asset and the cost of any improvement thereto and that since the cost of improvement of goodwill cannot be ascertained, gains arising on its transfer would not be liable to tax.

11. In the case of Addl. Commissioner of Income-tax, Tamil Nadu v. K.S. Sheik Mohideen, 115. ITR 243, a question arose before a Full Bench of Madras High Court. The assessee there made remittances under the National Defence Remittance Scheme and such remittances earned import entitlements which were sold by the assessee resulting in a profit which was assessed to capital gains tax by the Income-tax Officer. The Tribunal, however, held that there was no capital gains liable to be taxed. A reference on a question of law was made to the High Court as to whether there would be no liability to capital gains tax on the sale of import entitlement certificates in the assessees case. It was held:

The view, therefore, has been taken that it is not only the charging section that should be taken into account but the whole scheme of the must be looked into and when the is viewed in that manner, it has to be taken that the legislature did not intend to impose any capital gains on goodwill or on import entitlement merely by reason of the fact that the assessee had received monies when the capital asset or goodwill or import entitlement had been transferred. This was so said also for the apparent reason that the imposition in these circumstances will not be really on the profits and gains but on the entire capital asset itself, and one of the learned Judges who dealt with this matter has said that the tax which is said to be on profits and gains will then be converted into a tax on the capital asset. An intention to impose a tax on capital amount as distinct from capital gains could not be attributed to the statute and, therefore, the other view was taken, namely, that the statute did not intend to tax such capital assets as goodwill and import entitle.

In Commissioner of Income-tax, West Bengal v. Clive Mills Co. Ltd., 1982 TLR 636, the Calcutta High Court was concerned with the sale of loom hours by the assessee. No cost had been incurred by the assessee in acquisition of loom hours. It was held:

Capital gain arises only on the transfer of a capital asset which has actually cost to the assessee something. Such cost in the context of I.T. Act being cost in terms of money cannot apply to transfer of capital asset which did not cost anything to the assessee in terms of money in its creation or acquisition. In the present case also the acquisition of the loom hours did not cost anything to the assessee. The sale of loom hours, therefore, does not attract the provision of Section 45 of the I.T. Act, 1961. The additions on account of sale proceeds of loom hours in both the years are accordingly deleted.

12. It is not possible to apply the computation sections for quantifying the profits and gains on the transfer of leasehold rights which were acquired by the assessee without any cost. The mode of computation and deduction set forth in Section 45 provided the principal basis for quantifying the income chargeable under the head capital gains. What is contemplated is an asset in the acquisition of which it is possible to envisage a cost. In the case of self-created value of the tenancy right, it is not possible to determine the date of acquisition of the asset. A subsidiary point may also be noticed in which the Tribunal had directed the determination of the value of tenancy right as on January 1, 1954 and to deduct the amount from Rs. 30,000 which the assessee received. It opined that the balance would represent capital gains subject to statutory exemption. The authorities under the have no jurisdiction or power to direct the ascertainment of the cost of acquisition in relation to a capital asset. The option is given to the assessee whether to adopt the cost of acquisition of the asset to the assessee or the fair market value of the asset on the 1st day of January, 1954. The assessee has not exercised the option, nay, he has not even been called upon to do so. There is, therefore, no basis for directing the determination of the value of tenancy rights as on January 1, 1964.

13. The question is, therefore, answered in favour of the assessee and against the revenue with no order as to costs.