1933 (7) TMI 22

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....r loan to enable Mr. Warwick Smith to take a lease of Toubu-chaung. The assessee was disinclined to lend Mr. Warwick Smith any further sum, but eventually was persuaded to lend him two sums of Rs. 3,000 and Rs. 5,000. In March 1928 Mr. Warwick Smith, who had been working the mine at Toubu-chaung informed the assessee that he thought that there was a reasonable prospect of selling it, but that there was a certain amount of work to be done before the examining engineers arrived, and that it was necessary for Mr. Warwick Smith to find another Rs. 10,000 in order that the work should be carried through. The assessee was not prepared to lend Mr. Warrick Smith this sum without some sort of security, but on 14th March 1928 he was persuaded to ente....

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....to be a profitable investment, because the mine was sold in 1929 for GBP25,000 in cash and GBP15,000 in shares, and the assessee received in cash under the agreement GBP6,000 and shares of the face value of GBP9,000. It is in respect of this GBP6,000 that Income Tax is claimed from the assessee. The ground upon which the assessment is supported is that the assessee "deals in mines or mining concessions," which I take to mean that he carries on the business of buying and selling mines or mining concessions, and that the effect of the agreement was that the assessee bought for Rs. 10,000 a third share in the mining properties which were the subject matter of the agreement. 3. The only material before the Income Tax Officer upon which he co....

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....e assessee within Section 10, Income Tax Act; nor was it profits and gains derived from other sources within Section 12, because as I understand the transaction it was a receipt, not being a receipt arising from business, of a casual and non-recurring nature within Section 4(3)(7) of the Act. For these reasons, in my opinion, the answer to the question propounded is in the negative. The question of costs is adjourned; the matter can be mentioned later. Das, J. 4. I agree. Mya Bu, J. 5. I agree. 6. [The case was further considered in respect of costs and the refund of Rs. 100 deposited by the assessee with his application for reference to the High Court.] Page, C.J. 7. A question relating to procedure in Income Tax Refer....

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.... under Section 66(2) is filed, was intended partly to cover the expenses of the Commissioner that would be incurred by reason of the application, and pattty as a saieguartk against frivolous applications; and in such circumstances it would not be unreasonable to hold that the fee was not recoverable by the assessee. On the other hand the High Courts of Madras, Allahabad, Patna and Lahore have held that this fee of Rs. 100 is to be treated as part of the costs of the reference deposited by way of security, and for this reason it has been held that the fee forms part of the costs of and incidental to the reference which may be refunded to the assessee in the discretion of the Court under Section 66(6). In matters of procedure it is important,....