TMI Blog1957 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ited company the management of the entire business of working his collieries and mines. Clause (6) of the agreement, provided as under: That in consideration of the mining proprietor (assesses) having allowed the use and occupation of the running collieries to the agency company the company shall give to the mining proprietor royalty at the rate of Rs. /6/- (Rs. nil and annas six only) per ton of coal raised and despatched out of the colliery premises. The mining proprietor shall have nothing to do with any items of expenses that will be incurred for raising coal or for running the business at all these three places. Clause (16) provided that if the price of coal rose, the commission payable [which, we presume, is the royalty refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and taxed the balance from ₹ 1,10,000 as capital gain. Upon an appeal to the Tribunal, the Tribunal held that this was not a case of capital gain at all, but it also held that the payment constituted a capitalised part of the income of the assessee, and that if he had not received this amount, he would have charged a higher royalty than six annas per ton. On this footing the assessee would have been subject to a much larger tax than had already been imposed upon him on the footing of a capital gain. The Tribunal, therefore, not having the power to enhance the assessment, simply dismissed the appeal. As arising out of the decision of the Tribunal, the Tribunal referred to the Nagpur High Court the following three questions: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that the questions cannot be agitated. Now, it is no doubt true that a party desiring to have an additional question raised in a case stated by the Tribunal must apply to the Court within the time prescribed in section 66(2) and the practice of this Court has been that such an application is normally made by way of a notice of motion which may, for convenience, be heard with the reference itself; but, no doubt, the making of such an application within the time allowed is a condition precedent to the exercise of jurisdiction by this Court to require the Tribunal to state a case. We are not familiar with the practice that prevailed in the Nagpur High Court but we are told that it was the practice in that Court not to make any such appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such orders to the assessee and to the Commissioner. The expression 'thereon' has come in for considerable judicial comment and observation, and the authorities lay down that the power of the Tribunal is confined to dealing with the subject-matter of the appeal and the subject matter of the appeal is constituted by the grounds of appeal preferred by the appellant. This subject-matter cannot be expanded even by the appellant unless leave is granted to him to do so by the Appellate Tribunal. The subject-matter can certainly not be expanded by the respondent, as already pointed out, if he has not either appealed or cross objected. Then the learned Chief Justice reviewed the cases right from the decision of Motor Union Insurance C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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