This matter was referred before the Special Bench by the Hon’ble Division Bench on the ground that there is a direct conflict of judgment between two Division Benches and, accordingly, the Hon’ble Division Bench thought it fit and referred the matter before the Larger Bench so that the principle of the subject can be laid down.
It is also to be noted that Dr. Pal at that point of time tried to distinguish the said judgment in the Hamilton’s case (supra) with the judgment of Hope (India) Ltd. (supra) and submitted that there is no inconsistency in the view taken by the subsequent Division Bench in the Hope (India) Ltd case (supra) and in this subsequent decision the Hon’ble Division Bench duly considered the judgment delivered in the Hamilton’s case (supra) and, according to Dr. Pat the judgment in Hope (India) Ltd. holds the field.
We have also heard the learned `Counsel tor the parties extensively and after going through the said decisions of the Hon’ble High Court and after taking into consideration the facts of this matter, it appears to us that in Hamilton’s case the Court laid down the ratio that the rent of the past year increased retrospectively shall be the annual rent of the said past year or years but cannot be said to be the annual rent of the year in which the said amount was received. It was also held that the said amount which was received by the landlord subsequently being the enhanced rent is nothing to yield of the house property and the character of such receipt being the rent shall continue to be an income from the house property whereas in the Hope India’s case it has been laid down that a claim made by a landlord for enhancement of rent cannot fee said to be an amount within the meaning of Section 23(1) of the Act Since a claim or a demand by itself does not come within the purview of the word “income received or receivable”. It would be also evident from the said judgment in Hope India’s case the Hon’ble Division Bench duly considered the Hamilton’s case and observed that the Question raised in the Hope India’s case had not been raised in that Hamilton’s case at all. Therefore, it must be understood that the facts of both the cases were not identical and in Hope India’s case the Division Bench specifically dealt with the meaning of the word `receivable’ in the light of the decision of the Hon’ble Supreme Court reported in 26 ITR 27 and held that a claim or a demand by itself cannot be construed as income receivable. Therefore, in our considered opinion, there cannot have any conflict in the said two decisions of the Hon’ble Division Bench. Since, in our opinion, the Hamilton’s case it was laid down that the retrospective increase of rent cannot be brought under income from other source (see Section 14 of the Act) whereas in the Hope India’s case there was laid down that a mere demand or claim cannot amount to income receivable within the meaning of Section 5 of the Act and, furthermore, we do agree with Dr. Pal as it would be evident from the order of reference that Dr. Pal tried to distinguish the judgment in the Hamilton’s case (supra) with the judgment of Hope (India) Ltd. (supra) and submitted that there was no inconsistency in the view taken by the Hon’ble Division Bench and further in Hope India’s case the Hon’ble Division Bench also considered the judgment delivered in Hamilton’s case and he further contended before the Hon’ble Division Bench that the amendments which had been brought about in Section 25B was expressly made prospective with effect from 1st April, 2001.