1967 (11) TMI 12

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..... ent to income-tax for the assessment year 1959-60, the Income-tax Officer brought to tax Rs. 14,500 as deemed profit under section 10(2)(vii) of the Income-tax Act, 1922, and the balance of Rs. 8,500 as income arising from carrying on trade. In appeal to the Appellate Assistant Commissioner, the order of the Income-tax Officer was substantially confirmed. The Appellate Assistant Commissioner, however, held that the excess over the original price of the omnibus represented not the trading profits but capital gains in respect of that omnibus. In appeal, the Appellate Tribunal held that the price received by respondents for the sale of the omnibus was Rs. 6,000 and that amount was chargeable to income-tax under section 10(2)(vii). The Tribunal .....

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..... ply the omnibus was not property. The Tribunal still held that the amount of Rs. 8,300 which represented the difference between the consideration for sale and the right to ply the omnibus and the original value of the omnibus was capital gain chargeable to tax under section 12B. The reasons recorded by the Tribunal in support of this view are however not clear. In the application submitted by the Commissioner praying that questions arising out of the order of the Tribunal be referred under section 66(1) of the Income-tax Act to the High Court, one of the questions submitted was the following : " If the answer to question No. (2) is in the affirmative, whether such ' route value ' does not constitute an asset or property of the assessee .....

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..... that the right to ply the omnibus was not property ; if it is not property it cannot be a capital asset, for a capital asset under section 2(4A) of the Income-tax Act means " property of any kind held by the assessee, whether or not connected with his profession or vocation ........" The Commissioner of Income-tax apparently felt aggrieved by the decision of the Tribunal and applied to the Tribunal to draw up a statement of case, and submitted that the question in that behalf, which we have set out earlier, arose out of the order of the Tribunal. But the Tribunal did not raise that question. It was open to the Commissioner to apply to the High Court under section 66(2) of the Act that a statement of case be ordered on that part of the cas .....

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