The Oriental Investment Co., Ltd. Vs.
The Commissioner of Income-Tax, Bombay  INSC (22 May 1957)
BHAGWATI, NATWARLAL H.
CITATION: 1957 AIR 852 1958 SCR 49
Income-tax-Reference to High Court-Questions
of law- Investment company-Dealer or Investor-Mixed question of law and
fact-Legal effect of facts found, a question of law.
The appellant company was incorporated as an
investment company which by its memorandum of association enabled it, inter
alia, to deal in investments and properties. For the purposes of assessment to
income-tax the appellant claimed, for the assessment year in question, to be
treated as an investor and not as a ,dealer on the ground that it did not carry
on any business in the purchase or sale of shares, securities or properties.
The Incometax Appellate Tribunal held that according to the company's
memorandum of association and its own assertions made all along in the past, it
should be treated as a dealer in investments and properties and that its income
arising from the sales of shares and properties should be taxed as business
The appellant's applications for a reference
to the High Court were rejected on the ground that no question of law arose out
of the order of the Tribunal.
Held, that the question whether the
appellant's business amounted to dealing in shares and properties or to
investment, is a mixed question of law and fact and that the legal effect of
the facts found by the Tribunal as a result of which the appellant could be
treated as a dealer or an investor, is a question of law.
Accordingly, the order of the High Court was
set aside and the case remitted to the High Court for directing the Tribunal to
state a case.
(1)  12 I.T.R. 393.
50 Meenakshi Mills, Madurai v. Commissioner
of Income Tax, Madras, (1956) S.C.R. 691, applied.
Case law reviewed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 153 of 1954.
Appeal by special leave from the judgment and
order dated January 15, 1952, of the Bombay High Court in Income-Tax
Application No. 54 of 1951.
R. J. Kolah, J. B. Dadachanji, S. N. Andley
and Rameshwar Nath, for the appellant.
C. K. Daphtary, Solicitor-General of India,
G. N. Joshi and R. H. Dhebar, for the respondent.
1957. May 22. The Judgment of the Court was
delivered by KAPUR J.-This is an appeal by the assessee by special leave and
the question for decision is whether questions of law, if any, arise out of the
order of the Appellate Tribunal.
The facts giving rise to the appeal are that
the petitioner company was incorporated on July 29,1924, as an investment
company, the objects of which are set out in el. III of the memorandum of
association and more particularly in sub-cls. 1, 2, 15 and 16 of that clause.
The assessment years under review. are 1943-44 to 1948-49, excepting the year
According to its petition made in the High
Court of Bombay, the petitioner company dealt with its assets as follows:
"The Petitioner Company purchased during
the period 1st July 1925 to 30th June 1928 shares of the value of Rs.1,86,47,789/-
major portion of which was comprised of shares in the Sassoon Group of Mills. During
the year ended 30th June 1929 the Petitioner Company promoted two companies
known as Loyal Mills Ltd. and Hamilton Studios Ltd. and took over all their
shares of the value of Rs. 10 1/2 lacs. In the year 1930, the Petitioner
Company purchased shares of Rs. 1,33,930. During the period of 9 years from 1st
July 1930 to 30th July 1939 no purchases were made with the exception of a few
shares of Loyal Mills Ltd., 51 taken over from the staff of E. D. Sassoon &
Co. Ltd., who retired from service. In the year ended 30th June 1940
reconstruction scheme of the Appollo Mills Ltd., took place under which
debentures held by the Petitioner Company in the Appollo Mills Ltd., were
redeemed and the proceeds were reinvested in the new issue of shares made by
the Appollo Mills Ltd. Out of the purchases of the value of Rs. 2,794 made by
the Petitioner Company during the year ended 30th June 1941 Rs. 2,000/- was the
value of shares of the Loyal Mills Ltd., taken over from the retiring staff. In
the year ended 30th June 1943 the Petitioner Company took over from the David
Mills Co. Ltd., shares of The Associated Building Co., of the value of Rs.
56,700/-. After this there were no purchases at all to this date excepting
purchases of the value of Rs. 34,954 during the year ended 30th June, 1946.
" The sales are contained in para 3 (b)
which may be quoted:
" In relation to the purchases made by
the Petitioner Company as stated above no appreciable sales of shares were made
during the period 29th July 1924 to 30th June 1942, the sales made in the year
ended 30th June 1929 of the value of Rs. 1,29,333 included shares of the value
of 'Rs. 45,000 in the Loyal Mills Ltd., sold to the members of the staff and
shares of the value of Rs. 83,833 representing sterling investments handed over
to the creditors of the Petitioner Company in part repayment of the loan taken
from them in the year ended 30th June 1931, shares of the value of Rs.7,48,356
were handed over to the creditors in payment of the loan granted by them. From
the year ended 30th June 1943 E.D. Sassoon & Co. Ltd., started
relinquishing the managing agencies of the various Mills under their agency and
the shares held by the Petitioner Company in the Sassoon Group of Mills were
handed over to the respective purchasers of the Mills agencies. " This
gives the history of the acquisition and disposal of shares and also how the
various transactions were entered into and why. Prior to 1940 the assessee
company made a claim every year for being treated as 52 a dealer in investments
and properties but this contention was consistently repelled and upto the
assessment year 1939- 40 the assessee company was assessed on the basis of
being an investor but it appears that for the assessment year 1940-41 and the
two following years 1941-42 and 1942-43 the Department accepting the plea of
the assessee company treated it as a dealer in shares, securities and immovable
properties and assessed it on that basis. For these years and for the
assessment year 1943-44 the company made its Return on that basis. But after
the Return had been filed for the year 1943-44 the assessee company withdrew
its Return and filed a revised Return on March 7, 1944, contending that it was
not a dealer but merely an investor.
Along with the Return it filed a letter dated
March 6, 1944, in which inter alia it stated:"The Return of Total Income
which was submitted with the Company's letter of 25th May 1943 was prepared in
conformity with the ruling of the Income. tax Officer in the 1940-41 assessment
that the company was to be assessed as a dealer in investments. Since that
Return was submitted the Central Board of Revenue has decided that the Company
is an Invest- ment Holding Company and accordingly an amended Return of Total
Income under Section 22 (1) of the Indian Income-tax Act is submitted herewith
on which the assessment for 1943- 44 may be based, as on this particular
question the company obviously cannot have one status for Excess Profits Tax
and another for Income-tax. " It was also contended that it never carried
on any business in the purchase or sale of shares, securities or properties and
therefore prayed that in view of the order of the Central Board of Revenue made
on its application under s.
26(1) of the Excess Profits Tax Act it should
be assessed for income-tax purpose as an investor and not as a dealer.
The Income-tax Officer rejected this plea and
" held the investments as the stock-in-trade of its business therein which
it carried on during the 'previous year' also ". The company took an
appeal to the Appellate Assistant Commissioner which was dismissed and the 53
order of the Income-tax Officer upheld. It then appealed to the Income-tax
Appellate Tribunal, Bombay, where the same contentions were raised but were,
repelled. The Tribunal said:
" The company having itself raised the
point in all the prior years that it was a dealer in investments and
properties, it would appear to be difficult to understand why the company now
seeks to get the position changed and desires the Income-tax Officer to treat it
as if it was not dealing in shares, securities and immoveable properties."
The Tribunal after holding that the company was under no misapprehension when
it claimed to be a dealer in investments in the earlier years because it was
then always incurring losses and that the present contention was raised because
it made "substantial profits" said:
"but we have no doubt that, according to
the company's memorandum of association and its own assertions made all along
in the past, the assessee company is a 'dealer in investments and properties
and the income arising to it on the sale thereof has been rightly held by the
Income-tax Officer to be business profits liable to tax under the ordinary
provisions of the Income-tax Act." Thus the grounds on which the case was
decided against the assessee were (1) that the assessee claimed to be a dealer
or an investor according as it incurred losses or made profits and (2) that
because of the objects contained in the memorandum of association and because
of its assertion made in the past as being a dealer the assessee could not be
held to be an investor.
The company then applied to the Appellate
Tribunal under s.66(1) of the Indian Income-tax Act for a reference of the
following questions for the opinion of the High Court:
"(1) Whether on the facts and in the
circumstances of the case the assessee company can rightly be treated as a
dealer in investments and properties; and 54 (2)Whether the profits and losses
arising from the sale of shares, securities and immoveable properties of the
assessee company can be taxed as-business profits." This prayer was
rejected because in the opinion -of the Tribunal no question of law arose out
of its order. It said :
" The Tribunal did not decide this point
merely because the company's memorandum of association gave power to the
company to deal in investments and properties, but it was actually found that
the company had dealt in investments and properties throughout and had also all
along in the past asserted that it was a dealer in investments and
properties." This was more than it had said in its appellate order.
The assessee company then made an application
under s. 66(2) of the Indian Income-tax Act for requiring the Appellate
Tribunal to state the case and refer it to the High Court but this application
was dismissed, and then the company obtained special leave to appeal to this
Counsel for the assessee company contends
that the questions of law arise out of the order of the Tribunal because the
Tribunal has ignored the documentary evidence produced before it, has based it
decision on irrelevant matters, has failed to consider crucial facts and has
misdirected itself by assuming that the petitioner was a dealer from the very
beginning which was contrary to the documents produced before it.
Section 66 (1) of the Income-tax Act
(hereinafter termed the Act) provides that any assessee may require the
Appellate Tribunal to refer to the High Court any question of law arising out
of its appellate order and it is the statutory duty of the Appellate Tribunal
to draft the statement of the case and refer the question of law arising out of
such order to the High Court but the primary requirement is that there must be
a question of law arising out of the order. Should the Tribunal refuse to state
the case as required under s.66(1) of the Act on the ground that no question of
law arises, the assessee has the right to apply to the High 55 Court requiring
the Appellate Tribunal to state a case and refer it to the High Court but again
the essential consideration is the existence of a question of law. arising out
of the order.
To draw a line between what is a question of
law and what is a question of fact is not always easy. It is difficult to
define this distinction which has given rise to a number of decisions, which it
will be useful to discuss at this stage.
In Stanley v. Gramophone and Typewriter,
Limited(1) the Master of the Rolls discussed this question as follows :
" It is undoubtedly true that, if the
Commissioners find a fact, it is not open to this court to question that
finding unless there is no evidence to support it. If, however, the
Commissioners state the evidence which was before them, and add that upon such
evidence they hold that certain results follow, I think it is open, and was intended
by the Commissioners that it should be open, to the court to say whether the
evidence justified what the Commissioners held." These observations were
explained by Hamilton J. in The American Thread Co. v. Joyce (2) as implying
that by giving the material on which their finding was based the Commissioners
were inviting the court to determine whether on that material they could
reason. ably arrive at the conclusion on which they did arrive. The House of
Lords on appeal categorically confirmed that the Courts had no jurisdiction
over conclusions of fact except to see whether there was evidence to justify
them and that proper legal principles had been applied.
Lord Clerk in Californian Copper Syndicate v.
Harris (3) has laid down the test in the following words:
" the question to be determined being-Is
the sum of gain that has been made a mere enhancement of value by realising a
security, or is it a gain made in an (1) (1908) 5 T.C. 358, 374.
(2) (1911) 6 T.C. 1.
(3) (1904) 5 T.C. 159, 166.
56 operation of business in carrying out a
scheme for profit- making." In that case the objects set out in the
memorandum of association pointed distinctly to a highly speculative business
and the mode of actual procedure of the company was also directed in the same
direction. Taking into consideration the course of dealing of the shares by the
company and also that the turning of investment to account was not merely
incidental but was an essential feature of the business, speculation being
among the appointed means of the company's business the court came to the
conclusion that the company was carrying on a business.
The Lord President in a Scottish case Cayzer,
Irvine & Co., Ltd. v. Commissioners of Inland Revenue (1) stated the
grounds on which the court can interfere with the finding of the Commissioner
" I think we have jurisdiction to
entertain the question at law, which is whether the majority of the
Commissioners were warranted on -the evidence in determining as they did. At
the narrowest it is always open to this Court in a Stated Case to review a
finding in fact on the ground that there is no evidence to support it."
Lord Parker in Farmer v. Trustees of the Late William Cotton (2) after
referring to the difficulty of distinguishing between a question of fact and a
question of law observed:
" Where all the material facts are fully
found, and the only question is whether the facts are such as to bring the case
within the provisions properly construed of some statutory enactment, the
question is one of law only." But this statement of the law was
considerably modified in Inland Revenue Commissioners v. Lysaght (3) where it
was held that if the issue before the court could be described as a
"question of degree" the conclusion must be a question of fact.
(1) (1942) 24 T.C. 491, 501.
(2) [19I5] A.C. 922,932.
(3)  A.C. 234.
57 The Commissioners of Inland Revenue v. The
Korean Syndicate, Ltd. (1) was a case where a syndicate was registered for the
purpose of acquiring and working concessions and turning them to account, and
of investing and dealing with monies not immediately required. The syndicate
acquired part of a right to a concession in Korea and then under an agreement
described as a "lease", in consideration of receiving sums of money
termed "royalties" but which were really percentages of profits made
by assignee company, assigned the lease to a development company. Some moneys
which were received from sale of certain shares obtained by the syndicate in
exchange for shares originally acquired in the mining company were deposited in
a bank. The activities of the company were during the relevant period confined
to receiving the bank interest and royalties, distributing the amount amongst
its shareholders as dividend. The question for decision was whether the
syndicate was carrying on a business and was therefore liable to excess profits
From these facts it was concluded that they
were carrying on a business.
Atkinson L.J. pointed out at p. 204 that
merely because a company is incorporated it does not necessarily follow that it
is carrying on business.- Its memorandum only shows that the company was
incorporated for a particular purpose but taking into consideration the
surrounding circumstances and facts of the case it was concluded that the
company was carrying on a business.
In Great Western Railway Company v. Bater (2)
the question for decision was whether a clerk held a -public office to fall
within Sch. E. It was held that the determination by the Commissioners of
questions of pure fact are not to be disturbed unless it should appear that
there was no evidence before them upon which they, as reasonable men, could
arrive at the conclusion which they came to. Lord Atkinson said:
" What I have many times in this House
protested against is the attempt to secure for a finding on a mixed question of
law and fact the unassailability (1) (1921) 12 T.C, 181. (2) (1922) 8 T.C. 231,
8 58 which belongs only to a finding on
questions of pure fact.
This is sought to be affected by styling the
finding on a mixed question of law and fact a finding of fact." According
to the dictum of Lord Wrenbury the question for the Court was whether on the
facts found and stated by the Commissioners the clerk held the office within
the meaning of the Act which was a question of law.
In Lysaght v. The Commissioners of Inland
Revenue (1) the question for decision was whether the assessee was a resident
and ordinarily resident in United Kingdom in the year of assessment. Lord
" The distinction between questions of
fact and questions of law is difficult to It is, of course, true that if the
circumstances found by the Commissioners in the Special Case are incapable of
constituting residence their conclusion cannot be protected by saying that it
is a conclusion of fact since there are no materials upon which that conclusion
could depend. But if the incidents relating to visits in this country are of
such a nature that they might constitute residence, and their prolonged or
repeated repetition would certainly produce that result, then the matter must
be a matter of degree; and the determination of whether or not the degree
extends so far as to make a man resident or ordinarily resident here is for the
Commissioners and it is not for the Courts to say whether they would have
reached the same conclusion." Jones v. Leeming(2) was a case where the
respondent with three other -persons obtained an option to purchase a rubber
estate in the Malay Peninsula. That estate along with another was sold at a
profit. The Commissioners found that the respondent had acquired the property
with the sole object of turning it over again at a profit and at no time had he
the intention of holding it. This transaction was held not to be in the nature
of trade nor the profits arising therefrom in the nature of income but they
were accretions to (1) (1928) 13 T.C. 511, 533, 534.
(2)  A.C. 4I5.
59 capital and therefore not subject to tax
under Case VI of Sch. D.In Cameron v. Prendergast (1) the following test was
laid down by Viscount Maugham:
" Inferences from facts stated by the
Commissioners are matters of law, and can be questioned on appeal. The same
remark is true as to the construction of documents. If the Commissioners state
the evidence.............................................. it is open to the
court to differ from such holding." In Bomford v. Osborne (2) a farm was
working as a mixed farm but as a single unit. The question for decision was
whether the assessment could be apportioned one part being assessed as a farm
and the other as a nursery. Viscount Simon laid down the test in the following
" No doubt there are many cases in which
Commissioners, having had proved or admitted before them a series of facts, may
deduce therefrom further conclusions which are themselves conclusions of pure
fact. In such cases, however, the determination in point of law is that the
facts proved or admitted provide evidence to support the Commissioner's
conclusions." It was also held that this question was a mixed question of
law and fact.
Du Parcq J. in J. H. Bean v. Doncaster
Amalgamated Collieries Ltd.(3) held the following to be the test for
determining whether the question is one of fact or law:
" Unless the Commissioners, having found
the relevant facts and put to themselves the proper question, have proceeded to
give the right answer, they may be said, on this view, to have erred in point
of law. If an inference from facts does not logically accord with and follow
from them, then one must say that there is no evidence to support it. To come
to a conclusion which there is no evidence to support is to make an error in
law." (1)  2 All E.R. 35, 40. (3)  2 All E.R. 279, 284.
(2)  2 All E.R. 426, 430.
60 In Edward v. Bairstow (1) the respondent
embarked upon a joint venture to purchase a spinning plant with the object of
holding it for quick resale and at a profit. The General Commissioners found
that there was no venture in the nature of trade but the court held that the
facts found led inevitably to the conclusion that the transaction was a venture
in the nature of trade and that the Commissioners' inference to the contrary
Lord Simonds observed at p. 54 that:
" To say that a transaction is, or is
not, an adventure in the nature of trade is to say that it has, or has not, the
characteristics which distinguish such an adventure. But it is a question of
law, not of fact, what are those characteristics.........
At p. 55 Lord Radcliffe pointed out:
" I think that it is a question of law
what meaning is to be given to the words of the Income Tax Act "trade,
manufacture, adventure or concern in the nature of trade" and for that
matter what constitutes "profits or gains" arising from it. Here we
have a statutory phrase involving a charge of tax, and it is for the courts to
interpret its meaning, having regard to the context in which it occurs, and to
the principles which they bring to bear on the meaning of income." and
then at p. 57 laid down the test in the following words:
" When the case comes before the court,
it is its duty to examine the determination having regard to its knowledge of
the relevant law. If the case contains anything ex facie which is bad law and
which bears on the determination, it is, obviously, erroneous in point of law.
But, without any such misconception appearing ex facie, it may be that the
facts found are such that no person acting judicially and properly instructed
as to the relevant law could have come to the determination under appeal."
The dicta of Warrington L.J. in Cooper v. Stubbs (2) that intervention by a
court is proper only:
(1)  3 All E.R. 48.
(2)  2 K.B. 753, 768, 772.
61 missioners have come to their conclusion
without evidence which should support it, that is to say, have come to a
conclusion which on the evidence no reason-' able person could arrive at, or
have misdirected themselves in point of law." and of Atkin L.J. that:
to one conclusion of law..." were quoted
with approval by Lord Radcliffe at pp. 56 and 57.
A review of these authorities shows that
though the English decisions began with a broad definition of what are
questions of law, ultimately the House of Lords decided that a "matter of
degree" is a question of fact and it has also been decided that a finding
by the Commissioners of a fact under a misapprehension of law or want of
evidence to support a finding are both questions of law.
The Privy Council in Commissioner of
Income-tax v.Laxminarain Badridas (1) said:
" No question of law was involved; nor
is it possible to turn a mere question of fact into a question of law by asking
whether as a matter of law the officer came to a correct conclusion upon a
matter of fact. " Bose J. in Seth Suwallal Chhogalal v. Commissioner of
Income-tax(2) stated the test as follows:
" A fact is a fact irrespective of the
evidence by which it is proved. The only time a question of law can arise in
such a case is when it is alleged that there is no material on which the
conclusion can be based or no sufficient material." Sufficiency of
evidence was explained to mean whether the Income-tax authority considered its
existence so probable that a prudent man ought under the circumstances of the
case to act upon the supposition that it exists.
The question for decision in Dhirajlal
Girdharilal v.Commissioner of Income-tax, Bombay(3) was whether a Hindu
undivided family was carrying on business in (1)  5 I.T.R. I70, 179. (3)
 26 I.T.R. 736.
(2)  17 I.T.R. 269, 277.
62 shares and it was held that this was a
question of fact but if the Appellate Tribunal decided the question by taking
into consideration materials which are irrelevant to the enquiry or partly
relevant and partly irrelevant or based its decision partly on conjectures then
in such a situation an issue of law arises, which would be subject to review by
the court and the finding given by the Tribunal would be vitiated.
The result of the authorities is that
inference from facts would be a question of fact or of law according as the
point for determination is one of pure fact or a mixed question of law and fact
and that a finding of fact without evidence to support it or if based on
relevant and irrelevant matters is not unassailable.
The limits of the boundary dividing questions
of fact and questions of law were laid down by this court in Meenakshi Mills,
Madurai v. Commissioner of Income-tax, Madras (1) where the question for
decision was whether certain profits made and shown in the name of certain
intermediaries were in fact profits actually earned by the assessee or the
intermediaries. Taking the course of dealings and the extent of the transaction
and the position of the intermediaries and all the evidence into consideration
the Tribunal came to the conclusion that the intermediaries were dummies
brought into existence by the appellant for concealing the true amount of
profits and that the sales in their name were sham and fictitious and profits
were actually earned by the assessee. The test laid down by this Court is to be
found in the various passages in that judgment. At p. 701 Venkatarama Ayyar J.
pointed out that questions of fact are not open to review by the court unless
they are unsupported by any evidence or are perverse. At p.706 it was observed
" In between the domains occupied
respectively by questions of fact and of law, there is a large area in which
both these questions run into each other, forming so to say, enclaves within
each other. The questions that arise for determination in that area are known
as mixed questions of law and fact. These questions involve first the
ascertainment of facts on the evidence adduced and then a determination of the
(1)  S.C.R. 691.
63 rights of the parties on an application of
the appropriate principles of law to the facts ascertained.
The law was thus summed up at p. 720:
(1) When the point for determination is a
pure question of law such as construction of a statute or document of title,
the decision of the Tribunal is open to reference to the court under s. 66 (1).
(2) When the point for determination is a
mixed question of law and fact, while the finding of the Tribunal on the facts
found is final its decision as to the legal effect of that finding is a
question of law which can be reviewed by the court.
(3) A finding on a question of fact is open
to attack under s. 66 (1) as erroneous in law if there is no evidence to
support it or if it is perverse.
(4) When the finding is one of fact, the fact
that it is itself an inference from other basic facts will not alter its
character as one of fact.
In the instant case the Appellate Tribunal in
its appellate order has set out the amount of profits made by the assessee
company in the years of assessment 1943-44 to 1948-49. It has also mentioned
the inconsistent positions taken up by the assessee in first claiming to be a
dealer and then to be an investor which according to the Tribunal was due to
the fact that it was incurring losses in the earlier years and had begun making
profits when the claim of being an investor was put forward. But the two basic
facts on which the Tribunal has based its findings are:
(1) the objects set out in the memorandum of
association of the assessee company;
(2) the previous assertion by the assessee
company that it was a dealer in investments and not merely an investor.
Counsel for the assessee relies on the decision
of Kishan Prasad & Co., Ltd. v. Commissioner of Incometax, Punjab (1) where
this Court held that the circumstance whether a transaction is or is not within
the powers of the company has no bearing on the nature of the transaction or on
the question whether the profits arising therefrom are capital or revenue
income and, therefore, it is contended that the Tribunal has (1)  27
64 relied upon an irrelevant circumstance.
Counsel for Revenue on the other hand refer to the judgment in Lakshminarayan
Ram Gopal v. Government of Hyderabad (1) where the objects of an incorporated
company were held not to be conclusive but relevant for the purpose of
determining the nature and scope of its activities. Merely because the company
has within its objects the dealing in investment in shares does not give to it
the characteristics of a dealer in shares.
But if other circumstances are proved it may
be a relevant consideration for the purpose of determining the nature of
activities of an assessee. Whether in the instant case it will have any
relevance because of other materials on which the assessee company was relying
in support of its case that it was merely an investor and not a dealer will
have to be considered when the suggested questions of law are answered.
As to what are the characteristics of the
business of dealing in shares or that of an investor is a mixed question of
fact and law. What is the legal effect of the facts found by the Tribunal and
whether as a result the assessee can be termed a dealer or an investor is
itself a question of law.
The questions of law that arise out of the
order of the Tribunal are:
(1)Whether there are any materials on the
record to support the finding of the Income-tax Officer that the assessee
company was a dealer in shares, securities and immoveable property during the
assessment year in question ? (2)Whether the profits and losses arising from
the sale of shares, securities and immoveable properties of the assessee
company can be taxed as business profits ? We would therefore allow this
appeal, set aside the order of the High Court and remit the case to the High
Court for directing the Tribunal to state a case on the aforesaid two
questions. The appellant will have its costs in this Court and in the High
Court for the proceedings so far taken.
Further costs will be in the discretion of
the High Court.
Appeal allowed. Case remitted.
(1)  I.S.C.R. 393;  25 I.T.R.