# ORIENTAL INVESTMENT CO. (P) LTD v. COMMISSIONER OF INCOME TAX, BOMBAY

- **Citation:** [1969] 2 S.C.R. 46
- **Court:** Supreme Court of India
- **Decided:** 1968-09-10
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oriental-investment-co-p-ltd-v-commissioner-of-income-tax-bombay-4517
- **Pages:** 9

## Headnote

Indian Income Tax Act, 1922, s. 66(1)-Mixed questions of fact and
law-What are-Jurisdiction of High Court in dialing with such quesdons is the same as in dealing with questions of law-Appropriate Jann
for such questions.
For the assessment years 1940-41 to 1943-44 the assessee comi>anY
claimed to be an investor in shares and properties and not a dealer. The
contention was rejected by the Income-tax Officer, the Appellate Assistant
Commissioner and the Tribunal.
The company then applied to the Tribunal under s. 66(1) of the Income tax Act, 1922 for a reference of the
following questions of law for the opinion of the High Court : (i)
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 ?
(ii) w)lether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee company can be taxed
as business profits.
The Tribunal refused to make the reference and the
High Court dismissed the application under s. 66(2). On appeal by special
leave this Court held that the question as to what were the characteristics of the business of dealing in shares or tlrat of an investor was a
mixed question of law and fact. It remanded the case to the High Court
for directing the Tribunal to state a case under s. 66(2) on the following questions :
( i) whether there are any materials on the record to
support the finding of the Income tax Officer that th,, assessee company
was a dealer in shares, securities and immovable property during the
assessment year in question (ii) whether the profits and los·ses arising
from the sale of sharesi securities and immovable properties of the assessee company can be treated as business property ? On these questions
being referred to the High Court by the Tribunal, the High Court decided
them against the assessee company. The company again appealed to this
Court. It was contended on behalf of the appellant that the questions
as framed by this Court did not reflect the real controversy and therefore
the questions as originally framed in the company's application under s.
66(1) should be referred to the High Court in a fresh statement of
case to be made by the Tribunal.
HELD : ( i) The questions framed by this Court and the form in
whic11 they were framed seemed to assume that the questions
involved
were qnestiOns of fact for it is only in regard to a question of fact that
the question can properly be framed "as to whether there was material
to support the said finding".
This Court had itself held that the questions involved in the present case were mixed questions of law and fact.
Therefore the questions framed by this Court were not appropriate and
did not reflect the real controversy between the parties.
It was
there~
fore appropriate that the questions should be modified as suggested by
the appellant in its petition under s. 66(1) to the High Court. [53 G-54 ll]
(ii) The proper construction of statutory language is always a matter
of law and therefore the claim of the assessee that the profits and losses
arising from the sale of shares securities etc. cannot be treated as profit;
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ORIENTAL co. v. C.I.T. (Ramaswami, !.)
47
of a business involves the application of law to the facts found in the
setting of the particular case.
In dealing with findings on such questions of law and,fact the High Court must no doubt accept the findings
of the Tribunal on the primary questions of fact; but it is open to the
High Court to examine whether the Tribunal had applied the
relevant
legal principles correctly or not in reaching its final conclusion; and in
that sense, the scope of enquiry and the extent of the jurisdiction of
the High Court in dealing with such points is the same as in dealing
with pure questions of law. [53 B-D]
G. Venkatas.vami Naidu & Co. v. C.l.T., 35 I.T.R. 594, relied on.
CrvrL APPELLATE JURISDICTION: Civil Appeals Nos. 651 to
655 of 1967.
Appeals

## Text

ORIENTAL INVESTMENT CO. (P) LTD.
v.
COMMISSIONER OF INCOME TAX, BOMBAY
September 10, 1968
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
Indian Income Tax Act, 1922, s. 66(1)-Mixed questions of fact and
law-What are-Jurisdiction of High Court in dialing with such quesdons is the same as in dealing with questions of law-Appropriate Jann
for such questions.
For the assessment years 1940-41 to 1943-44 the assessee comi>anY
claimed to be an investor in shares and properties and not a dealer. The
contention was rejected by the Income-tax Officer, the Appellate Assistant
Commissioner and the Tribunal.
The company then applied to the Tribunal under s. 66(1) of the Income tax Act, 1922 for a reference of the
following questions of law for the opinion of the High Court : (i)
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 ?
(ii) w)lether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee company can be taxed
as business profits.
The Tribunal refused to make the reference and the
High Court dismissed the application under s. 66(2). On appeal by special
leave this Court held that the question as to what were the characteristics of the business of dealing in shares or tlrat of an investor was a
mixed question of law and fact. It remanded the case to the High Court
for directing the Tribunal to state a case under s. 66(2) on the following questions :
( i) whether there are any materials on the record to
support the finding of the Income tax Officer that th,, assessee company
was a dealer in shares, securities and immovable property during the
assessment year in question (ii) whether the profits and los·ses arising
from the sale of sharesi securities and immovable properties of the assessee company can be treated as business property ? On these questions
being referred to the High Court by the Tribunal, the High Court decided
them against the assessee company. The company again appealed to this
Court. It was contended on behalf of the appellant that the questions
as framed by this Court did not reflect the real controversy and therefore
the questions as originally framed in the company's application under s.
66(1) should be referred to the High Court in a fresh statement of
case to be made by the Tribunal.
HELD : ( i) The questions framed by this Court and the form in
whic11 they were framed seemed to assume that the questions
involved
were qnestiOns of fact for it is only in regard to a question of fact that
the question can properly be framed "as to whether there was material
to support the said finding".
This Court had itself held that the questions involved in the present case were mixed questions of law and fact.
Therefore the questions framed by this Court were not appropriate and
did not reflect the real controversy between the parties.
It was
there~
fore appropriate that the questions should be modified as suggested by
the appellant in its petition under s. 66(1) to the High Court. [53 G-54 ll]
(ii) The proper construction of statutory language is always a matter
of law and therefore the claim of the assessee that the profits and losses
arising from the sale of shares securities etc. cannot be treated as profit;
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ORIENTAL co. v. C.I.T. (Ramaswami, !.)
47
of a business involves the application of law to the facts found in the
setting of the particular case.
In dealing with findings on such questions of law and,fact the High Court must no doubt accept the findings
of the Tribunal on the primary questions of fact; but it is open to the
High Court to examine whether the Tribunal had applied the
relevant
legal principles correctly or not in reaching its final conclusion; and in
that sense, the scope of enquiry and the extent of the jurisdiction of
the High Court in dealing with such points is the same as in dealing
with pure questions of law. [53 B-D]
G. Venkatas.vami Naidu & Co. v. C.l.T., 35 I.T.R. 594, relied on.
CrvrL APPELLATE JURISDICTION: Civil Appeals Nos. 651 to
655 of 1967.
Appeals from the judgment and order dated March 2, 1966
of the Bombay High Court in Income-tax Reference No. 73 of
1962.
S. T. Desai, D. Dwarkadas and S. S. Javali, for the appellant.
C. K. Daphtary, Attorney-General, R. Gopalakrishnan, R. N.
Sachthey and B. D. Sharma for the respondent in all the appeals.
The Judgment of the Court was delivered by
Ramaswami, J. These appeals are brought by certificate from
the judgment of the Bombay High Court dated March 2, 1966 in
Income Tax Reference No. 73 of 1962.
The appellant company, hereinafter called the assessee company, was incorporated on July 29, 1924, as an investment company, the objects of which are set out in cl. III of the memorandum
of association and more particularly in sub-els. 1, 2, 15 and 16
of that clause.
The assessment years in question are 1943-44 to
1948-49, excepting the year 1947-48. According to its petition
made in the High Court, the assessee 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 Mill~ Ltd., and
Hamilton Studios Ltd. and took over all their shares
of the value of Rs. lOt lacs.
In the year 1930, the
petitioner company pnrchased shares of Rs. 1,33,930.
During the period of 9 years from 1st July, 1930, to
30th July, 1939, no purchases wen: made with the
exception of a few shares of Loyal Mills Ltd. 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.
48
SUPREME COURT REPORTS
(1969] 2 S.C.R.
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 paragraph 3 (b) which states:
"Iu 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."
Prior to 1940 the assessee company made a claim every year
for being treated as a dealer in investments and properties but
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this contention was repelled by the Income Tax authorities and
upto the assessment year 1939-40 the assessee company was
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assessed on the basis of being an investor but it appears that for
the assessment years 1940-41, 1941-42 and 1942-43 the Income
Tax department accepted the plea of the assessee company and
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 assessee company made its return . H
Qn 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
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ORIENTAL co. v. C.l.T. (Ramaswami, J.)
49
dealer but merely an investor.
Along with the return it filed a
letter dated March 6, 1944 in which 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 Investment 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 Incometax."
It was contended by the assessee company that it never carried
on any business in the purchase or sale of shares, securities or
properties.
In support of this contention the assessee company
relied on the order of the Central Board of Revenue dated
August 18, 1943 passed under s. 26(1) of the Excess Profits Tax
Act.
The Income Tax Officer rejected the plea and held that the
investments were held by the assessee company as the stock-intrade. of its business which it carried on during the previous year
and also in the preceding years.
The assessee company took the
matter in appeal to the Appellate Assistant Commissioner who
dismissed the appeal and upheld the order of the Income Tax
Officer.
The assessee thereafter appealed to the Income Tax
Appellate Tribunal and the same contentions were urged on behalf
of the assessee company.
The Appellate Tribunal rejected the
assessee's claim that it was showing itself as a dealer in shares,
securities and immovable properties under a misapprehension and
without appreciation of the correct facts.
The Appellate Tribunal held that in the case of the assessee company not only the
Memorandum of Association gave the power to the company to
deal in investments but the case of the company all along in the
past was that it was a dealer in investments and properties.
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·Consequently, the Tribunal held that the assessee company was
:a dealer in shares, securities and properties and dismissed the
appeals.
Thus the grounds on which the
case was
decided
against the assessee company 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 company could not be held
to be an investor.
The assessee company then applied to the
Appellate Tribunal under s. 66 (1 ) of the Income Tax Act, 1922,
50
SUPREME COURT REPORTS
[1969] 2 s.c.R.
~ereinafter called the 'Act' for a reference of the following ques- · A
hons of law for the opinion of the High Court :
"(i) 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
(ii) Whether the profits and losses
arising from
the sale of shares, securities and immovable properties
of the assessee company can
be taxed
as business
profits."
The application was rejected by the,Appellate Tribunal on the
ground that no question of law arose out of its order.
The
assessee company then made an application under s. 66(2) of the
Act to the Bombay High Court which dismissed the application
by its order dated June 15, 1952. The assessee company thereupon obtained special leave to appeal to this Court.
The appeal
was allowed by this .Court by its judgment dated May 22, 1957
and the order of the Bombay High Court dated June 15, 1952
was set aside.
It was pointed out by this Court that the Appellate
Tribunal in arriving at its finding that the assessee was a dealer
and not an investor, had relied on two basic facts, viz., the objects
set out in the Memorandum of Association and the previous
assertion made by the assessee-company that it was a dealer in
investments and properties and not merely an investor.
It was
observed that merely because the company had within its objects
the dealings in investments, shares and properties the circumstance
did not give it the characteristics of a dealer in shares.
The
circumstance, though relevant,
was not conclusive. It was
pointed out in the judgment of this Court that the question as to
what were the characteristics of the business of dealing in shares
or that of an investor was a mixed question of fact and law and
what was the legal effect of the facts found by the Appellate
Tribunal and whether as a result thereof the assessee could be
termed a dealer or an investor was itself a question of law. Accordingly the Court formulated the following two .questions of law
as arising out of the order of the Tribunal :
" ( 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
immovable property during the assessment year in
question?
(2) Whether the profits and losses arising from the
sale of shares, securities and immovable properties of
the assessee company can be taxed as business profits ?"
The case was therefore remanded to the High Court for directing
the Appellate Tribunal to state a case on the aforesaid questions
of law under s. 66(2) of the Act.
In accordance with the direcc
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ORIENTAL co. v. C.I.T. (Ramaswami, J.)
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A
tion of this Court the Appellate Tribunal made a statement of the ·
case on June 12/13, 1962. The reference being Income-tax
Reference No. 73 of 1962 was heard by the High Court which by
its judgment dated March 2, 1966 answered both the questions ·
against the assessee company and in favour of the Commissioner of
Income Tax.
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On behalf of the assessee company Mr. S. T. Desai argued .
that the question whether the assessee company was
a dealer
dealing in investments and properties or whether it was a mere
investor will have to be judged on a proper scrutiny of the tran- ·
sactions themselves considered in the light of the circumstances
in which the transactions both of purchase and sale had been
brought about.
If it is found on an examination of the transactions themselves that the essential characteristics of the business
of the assessee were of dealing in shares and investments, the
assessee will undoubtedly be taken as a dealer.
If, on the other
hand, the characteristics revealed by the transactions are those
peculiar to mere investments in shares, securities and properties,
the finding of the Court must be that the assessee is an investor
and the profits made by it are only excess obtained on realisations
of the investments and not liable to be taxed.
According to
Mr. S. T. Desai, neither the Memorandum of Association nor the·
previous assertions made by the assessee company either under a
misconception or even deliberately will not have the effect of
changing the legal p.ature of the transactions as revealed by the
transactions themselves and the circumstances in which the transactions have taken place.
In support of this argument reference
was made on behalf of the appellant to the statements of the
transactions, Annexures 'E' and 'F' of the statement of the case·
and detailed explanations, statements M-1 and M-2.
The substance of the argument of the appellant was that ( 1) most of the
shares, securities and properties acquired by the assessee company were the properties of E. D. Sassoon & Co. and the family
of Sassoons; ( 2) a large block of shares held by the company
consisted of the shares of the Sassoon Group of Mills and the
block was held all along since its acquisition before the year 1930
until E. D. Sassoon and Co. and the Sassoons continued to be·
interested in the said Gronp of Mills and they were realised by
sale only when E. D. Sassoon & Co. and the Sassoons decided to·
relinquish their interest in the said Group of Mills, and (3) neither the mode of acquisition of these shares and properties nor
the mode and manner of their disposal have any of the distinctive
characteristics of business dealings.
On the questions actually formulated by this Court upon which
the Appellate Tribunal has made a statement of the case it is not
possible for us to entertain the argument advanced by Mr. S. T .
Desai.
It was contended on the contrary by the Attorney-General
SUPREME COURT REPORTS
[1969] 2 S.C.R .
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-that upon the questions actually referred, the answers must be
-agamst the assessee company.
It was said that there were at
least two materials on record to support the finding of the Appellate T:1bunal _that the assessee-company was a dealer in shares,
-secur~ties and lffimovable properties during the assessment year in
-quest10n.
The first is that in its own memorandum dated Octo-
~er 2, 1942, the assessee company contended that it was a dealer
m shares and investments and set out various reasons in support
-of its contention.
The second circumstance is tliat cl. 3 of the
Memorandum of Association gave the power to the assessee company to deal with investments.
The contention of the AttorneyGeneral was that there was material on the record to support the
.finding of the Appellate Tribunal that the assessee-company was
a dealer in shares, securities and immovable properties and the
questions, as already framed, were rightly answered by the High
· Court in the affirmative and against the assessee company.
In
answer to this contention Mr. S. T. Desai submitted that tlJe real
· controversy in tlJis case is not reflected in tlJe two questions framed
by tlJis Court in its judgment dated May 22, 1957. It was argued
that the two questions upon which the assessee company applied
for a reference under s. 66 ( 1) of the Act were properly framed
and were questions arising out of tlJe order of the Appellate
-Tribunal.
Mr. S. T. Desai urged that we should modify the
· questions in a manner suggested by the assessee company in the
application under s. 66 ( 1) of the Act and ask the Appellate Tribunal to make a fresh statement of the case.
In our opinion,
tlJe argument put forward on behalf of the appellant is
wellfounded and as we shall presently point out, it is necessary in the
interest of justice that we should modify tlJe questions framed by
this Court on the last occasion and call upon the Appellate Tri-
-bunal to make a fresh statement of the case.
There is no doubt that tlJe jurisdiction conferred on the High
·Court by s. 66 ( 1) of the Act is limited to entertain references
involving questions of law.
If, for instance, the point raised on
reference relates to tlJe construction of a document of title or
interpretation of relevant provisions of a statute, it is a pure ques-
·tion of Jaw.
In dealing with it, the High Court may have due
·regard for the view taken by the Tribunal, but its decision would
not be fettered by that view.
In some cases, tl!e point sought to
be raised in a reference may turn out to be a pure question of fact
and if tlJat be so, the finding of fact recorded by the Appellate
Tribunal must be regarded as conclusive in a proceeding under
s. 66 (1). But it would be open to challenge the conclusion of
fact drawn by the Appellate Tribunal on tlJe ground that it is not
supported by any legal evidence or material or tlJat the conclusion of fact drawn by the Appellate Tribunal is perverse and is
not rationally possible. It is within these narrow limits that the
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ORIENTAL co. v. C.I.T. (Ramaswami, J.)
53.
conclusions of fact by the Appellate Tribunal can be challenged.
under s. 66 ( 1). Such conclusions can never be challenged on
the ground that they are based on misappreciation of evidence ..
There is, however, a third class of cases in which the assessee or
the department may seek to challenge the correctness of the conclusion reached by the Tribunal on the ground that it is a conclusion on a question of mixed: law and fact.
Such a conclusion is
no doubt based upon the primary evidentiary facts, but its ultimate form is detennined by the application of relevant legal
principles. To put it differently, the proper construction of statutory language is always a matter of law and therefore the claim
of the assessee that the profits and losses arising from the sale of
shares, securities etc. cannot be taxed as profits of a business
involves the application of law to the facts found in the setting
of the particular case.
In dealing with findings on such questions
of mixed law and fact the High Court must no doubt accept the
findings of the Tribunal on the primary questions of fact; but it is.
open to the High Court to examine whether the Tribunal had
applied the relevant legal principles correctly or not in reaching
its final conclusion; and in that sense, the scope of enquiry and
the extent of the jurisdiction of the High Court in dealing with·
such points is the same as in dealing with pure points of law.-
( See the decision of this Court in G. Venkataswami Naidu & Co.
v. C.l.T. (1)). On the last occasion it was pointed out by this.
Court that the question as to what are the characteristics of the
business in shares or that of an investor is a mixed question of fact
and law.
To put it differently, the question as to what is the
legal effect of the facts found by the Tribunal and whether as a
result the assessee can be treated as a dealer or an investor is
itself a question of law.
The final conclusion of the Tribunal
can, therefore, be challenged on the ground that the relevant legal
principles have been mis-applied by the Tribunal in reaching its
decision on the point; and such a challenge is open under s. 66 ( 1) ·
because it is a challenge ori a ground of law. It is because the
question involved in this case was not a question of pure fact but·
was a mixed question of fact and law that this Court allowed the
appeal on the last occasion and set aside the judgment of the Bombay High Court dated June 15, 1952 and directed the Appellate·
Tribunal to state a case, but owing possibly to some mistake or
inadvertence the actual questions framed by this Court (quoted·
at page 676 of 32 l.T.R.) and the fonn in which the questions
were framed by this Court seem to assume that the questions
involved are questions of fact.
The reason is that it is only in·
regard to a finding of fact that the question can be properly framed "as to whether there was material to support the said finding''.
We are accordingly of the opinion that the questions actually
framed by this Court on the last occasion are not appropriate and'
(IJ 35 I.T.R. 594
SUPREME COURT REPORTS
(1969] 2 S.C.R.
· do not reflect
the real controversy between the parties.
It is
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'therefore, expedient in the interest of justice that the questions
sho.u!d be modified as suggested by the assessee company in its
petition under s. 66 ( 1) of the Act to the High Court and the
Appellate Tribunal should be asked to make a fresh statement of
the case.
For these reasons we allow these appeals and set aside the
. judgment of the· Bombay High Court dated March 2, 1966 and
direct the Appellate Tribunal to make a fresh statement of the
. case on the following questions of law :
" ( 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
(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."
. After the Appellate Tribunal has made a statement of the case
the High Court will dispose of the reference in accordance with
law.
The appellant must pay the costs of this appeal in this
· Court to the respondent.
We should like to add that we have
not considered whether the High Court has in its judgment reach-
. ed the correct conclusion on what the High Court assumed were
the questions to be decided by it.
We are setting aside the judg-
. ment of the High Court only on the ground that the enquiry made
by the High Court was, on the view taken by us, not competent
on the questions as framed at present.
We therefore express no
· opinion on the merits of the dispute.
We trust that the Tribunal
will make the fresh reference with the least practicable delay.
<G.C.
Appeals allowed.
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