JUDGMENT 1. Two of the questions referred in this Reference are admittedly covered by a previous decision of this court in the case of the very same group of assessees and the third question is covered by a majority decision of the Supreme Court. Mr. S. Mukherjee, appearing for the Revenue, submits that in view of the aforesaid majority decision of the Supreme Court, he could not ask us to decide the third question in favour of the Revenue, but he wants it to be recorded that the Revenue does not concede its contention that the amount was taxable under the residuary head. The facts giving rise to the reference are as follows : 2. The assessee is a shareholder of the Ukhara Estate Zemindaries Ltd. (hereinafter referred to as "the company". The assessment year is 1950-51, the corresponding accounting year being 1356 B. S. ending on the 13th April 1950. The company declared a dividend on the 19th October, 1949 and the asssessee received a sum of Rs. 13,200/- as his share of such dividend during the relevant accounting year. Out of the above amount, the sum of Rs. 8,829/ - was paid out of the accumulated capital gains received by the company in the shape of selamis and land acquisition compensation receipts after the 31st March, 1948. Such capital gains were taken to the reserve fund and thereafter distributed as dividend by the company. The remainder of the dividend was paid out of the balance of the profit and loss account. The dispute in this Reference centres round the taxability of the sum of Rs. 8,829/ -. The assessee contended before the Income-tax authorities that the amount received out of the accumulated capital gains of the company could not be assessed as dividend within the meaning of Section 2 (6a) (a) of the Indian Income-Tax Act, 1922, as the explanation to the aforesaid clause excluded capital gains arising before the 1st day of April, 1946 or after the 31st day of March, 1948 from the expression 'accumulated profits". As in this case the company distributed the aforesaid amount as dividend out of its capital gains received after the 31st March, 1948, such portion* of the dividend did not come within the statutory definition of dividend in Section 2 (6a) (a) and could not be assessed as such. As in this case the company distributed the aforesaid amount as dividend out of its capital gains received after the 31st March, 1948, such portion* of the dividend did not come within the statutory definition of dividend in Section 2 (6a) (a) and could not be assessed as such. This contention was rejected by the Income-tax officer who assessed the entire amount of Rs. 13,200/- as the assessee's income from dividend. On appeal from the order of assessment, the Appellate Assistant Commissioner accepted the assessee's contention that the amount of Rs. 8,829/- could mot be construed as dividend within the meaning of Section 2 (6a. He, however, held that as the amount was a receipt of a revenue nature in the hands of the assessee, it was assessable under the general charging section. The appellate Assistant Commissioner, therefore, dismissed the assessee's appeal. On the assessee preferring a second appeal before the Tribunal, his appeal was heard along with the appeals preferred by the other shareholders of the company against the assessment of the amounts distributed by the company out of its capital gains in the relevant accounting year and the Tribunal gave its principal decision in the case of (1)Sri Nalin Behari Lall Singha, in I.T.A. No. 5920 of 1961-62. In that appeal the tribunal held that the distribution out of capital gains in the shape of premium received by the company as consideration for the grant of mining and other leases could not be held to be a dividend within section 2 (6a) (a) and that the said amount could not also be assessed as dividend under the ordinary meaning of that expression. The Tribunal, however, was of the opinion that the remaining part of the distribution, which was attributable to the land acquisition compensation received by the company, could not be regarded as having been made out of the capital gains in the hands of the company and therefore, the exemption in the third proviso to 'section 2 (6a) was not applicable in terms and there was no bar to the assessment of the distribution as dividend in the hands of the assessee. The Tribunal also agreed with the decision of the Appellate Assistant Commissioner that even if a portion of the distribution was not covered by the definition in Section 2- (6a), such portion of the dividend would be taxable as the income of the assessee from other sources. In conformity with that decision the Tribunal dismissed the appeal preferred by the assessee. 3. At the instance of the assesses the tribunal has referred the following two questions to this Court viz : (1) Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the distribution to the assessee of the amount attribuaable to land acquisition compensation received by the Ukhara Estate Zamindaries Ltd., after 31st March, 1948 was in the hands of the assessee, receipt of dividend within the meaning of Section 2 (6a) of the Indian Income-tax Act, 1922? (2) Whether, on the facts and in the circumstances of the case the Tribunal was right in holding that the receipt by the assessee of the amount attributable to selamis realised by the Ukhara Estate zamindaries Ltd., for grant of long term leases after 31st March, 1948 was a receipt of income in the hands of the assessee and taxable as the income of the assessee from other sources ? the Tribunal also referred another question at the instance of the Commissioner of Income-tax viz., whether on the facts and in the circumstances of the case, the distribution to the assessee of the amount attributable to selamis realised by the Ukhara estate Zamindaries Ltd., for grant of long term leases after 31st March, 1948 was not in the hands of the assessee receipt of dividend within the meaning of section 2 (6a) of the Indian Income-tax Act, 1922 ? 4. Before this Court both Mr. Barman, learned counsel appearing for the assessee and Mr. Mukherjee, for the Revenue, agreed that the first question referred at the instance of the assessee and the question referred at the instance of the Commissioner are covered by the decision of this Court in (1) I. T. Reference No. 131 of 1961 (Nalin Behari Singha, Ukhara v. Commissioner of Income-tax, West Bengal, Calcutta. That was a Reference made at the instance of one group of shareholders of the aforesaid company in respect of the dividend declared in the accounting year relevant to the assessment year 1949-50. That was a Reference made at the instance of one group of shareholders of the aforesaid company in respect of the dividend declared in the accounting year relevant to the assessment year 1949-50. The question in that reference was whether the dividend declared by the company out of capital gains which arose after 31st March, 1948 was a dividend within the meaning of section 2 (6a) was assessable as such. In that case the Court observed as follows: "strong reliance was placed by counsel for the revenue on the above sentence and it was contended that what we have got to consider is the nature of the receipt by the assessee, if it is income in his hands then it does not matter that it came as a result of distribution of capital profits by the company. Undoubtedly distribution of accumulated gains made by a company as accumulated profits would be covered by the definition of dividend in section 2 (6a)and as we have already said but for the proviso dividends of this nature received before and after specified dates would also be taxable in the hands of the shareholders. " As in that case the dividends were declared out of capital gains received after the specified date the Court answered the question in favour of the assessee. In view of the aforesaid decision of this court, question No. 1 referred at the instance of the assessee must be answered in the negative and in favour of the assessee. Similarly the answer to the question referred at the instance of the commissioner would be in the affirmative and in favour of the assessee. 5. So, far as the second question referred at the instance of the assessee is concerned, Mr. Mukherjee submitted that the contention of the Department was that even if the amount could not be assessed as income from dividend, it could be assessed under the residual head as the income of the assessee. But in view of the majority decision of the supreme Court in (2) Nalinikant Ambalal Mody v. S.A.L. Narayan Row, Commissioner of Income-tax, Bombay City 1, (1986) LXI I. T. R. page 428, he could not ask this Court to answer the question in favour of the Revenue. But in view of the majority decision of the supreme Court in (2) Nalinikant Ambalal Mody v. S.A.L. Narayan Row, Commissioner of Income-tax, Bombay City 1, (1986) LXI I. T. R. page 428, he could not ask this Court to answer the question in favour of the Revenue. In that case the majority of the Supreme Court held that "the words 'if not included under any of the preceding heads' in section 12 refer to income and not to a head of income. Section 12, therefore deals with income which is not included in any of the preceding heads. If the income is so included, it falls outside section 12. Section 12 does not say that an income which escapes taxation under a preceding head will be computed under it for chargeability to tax". In view of the aforesaid earlier decision of this court, it must be held that the amount was not taxable as dividend. According to the aforesaid majority view of the Supreme Court, if the amount could not be assessed as dividend it could not also be assessed as income from other sources under Section 12. Mr. Mukherjee drew our attention to the dissenting judgment of Bachawat, J. In the aforesaid Supreme Court case where his Lordship was of the opinion that such an item of receipt, if it was income, could be assessed under the residual head. We are bound to follow the majority decision of the Supreme Court and accordingly, the second question referred at the instance of the assessee, must also be answered in the negative and in favour of the assessee. In the circumstances of the case there will be no order for costs.