TMI Blog1923 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... hat an allowance is to be made in respect of any expenditure (not being in the nature of capital expenditure) incurred solely for the purpose of earning such profits. 2. The appellant Company claimed to deduct from the income on which they had been assessed, this sum of 28 lacs of rupees, paid to the underwriters to help to float the issue of these preference shares. The Collector of Income Tax and the Chief Revenue Authority were of opinion that the payment of the 28 lacs was in reality capital expenditure, inasmuch as it was expended to procure capital, and was not an allowable deduction from the profits of the business under the provisions of this Income Tax Act. 3. A reference by the case stated was accordingly made by these officials to the High Court under Section 51 of the Income Tax Act of 1918 of the question whether the expenditure of these 28 lacs could be allowed under Section 9, Sub-section 2(ix), of this statute, as not being in the nature of capital expenditure, nor as having been incurred solely for the purpose of earning such profitswithin the meaning of this Sub-section. The High Court delivered judgment on February 28, 1921, holding that the words any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not lie to the High Court under Clause 15. 5. In their Lordships' view the words original jurisdiction are only used in contradistinction to the words made on appeal mentioned earlier in the clause; but it is quite obvious that the matters to be dealt with under the original jurisdiction are serious and important, because by the succeeding Clause, namely, Clause 40, specified provision is made for obtaining the permission of the Court to appeal to Her Majesty in Council in respect of preliminary or interlocutory judgments, decrees, orders or sentences (not being matters of criminal jurisdiction) of the High Court. The granting of this permission is entirely discretionary with the Court or Judge empowered to give it. There is not an appeal as of right in these interlocutory matters, and but for the provision of Clause 40 an appeal in such matters would be incompetent: Goldring v. La Banque d' Hochelaga (1880) 5 APP. Cas. 371. 6. It is not pretended that the permission in this clause referred to was ever asked for or obtained in the present case, nor was it argued that the decision was an interlocutory judgment, order or decree within Clause 40. 7. In order therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, the costs incurred by them in relation to the appeal are to be paid by the appellant On January 21, 1890, the Court below decided the question submitted in favour of the Commissioners. Onslow appealed, but omitted to serve notice of appeal within the time required by Order LVIII, Rule 3, of the Rules of the Supreme Court of 1883. In July 1890, he applied to the Court of Appeal to extend the time for appealing. on the ground that doubts had arisen as to whether the order of the Court below was a judgment or an orderwithin the meaning of Rule 15 of the above-mentioned rules. This rule ran thus: No appeal to the Court of Appeal from any interlocutory order or from any order whether final or interlocutory in any matter not being an action shall except by special leave of the Court of Appeal be brought after the expiration n of twenty-one days, and no other appeal shall be brought except by leave of the Court after the expiration of one year. 9. Lord Esher delivered the judgment of the Court. After quoting the opinions of several authorities, which as the judgment is printed it is not easy to distinguish from portions of his own judgment, he refers particularly to opinions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the special case referred, and then by its decree declare its opinion upon rights involved therein, but without proceeding to administer any relief consequent upon such declaration. This declaration was, however, to have the same force and effect as if it had been made in a 'suit instituted by the parties by bill. It would appear to their Lordships that the ruling of the Court there was merely advisory. It is evident from this case of Onslow v. Commissioners of Inland Revenue (1890) 25 Q.B.D. 465 467 that the use of the words determine and ''decide or the direction that money paid in excess is to be refunded or the awarding of costs against the unsuccessful party, are not things which distinguish a judgment from an order where questions are referred to the Courts by case stated. 14. The word judgment is indeed popularly used in many different senses, as when one says a certain man is a man of sound judgment, meaning that he is possessed of the intellectual faculty of deciding rightly on fact or circumstances, or where even in legal matters the expression of the opinion formed in a case by a judge who dissents from his colleagues is commonly called his judgment, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be guided by the decision given, and shall make his assessment accordinglythe ultimate result being that he assesses the taxpayer at an amount which in his instructed opinion he judges to be right. No suit can be brought to set aside or modify the assessment when so made. The amount of the taxpayers' liability is thus definitely fixed, but nothing more is done. The decision of the High Court does not in any way enforce the discharge of that liability. It would appear clear to their Lordships that the word ''judgment is not here used in its strict legal and proper sense. 19. It is not an executive document directing something to be done or not to be done, but it is merely the expression of the opinions of the majority of the judges who heard the case, together with a statement of the grounds upon which those opinions are based. It amounts only to a ruling that a certain deduction claimed by a taxpayer to be allowed from the sum for which he has been already assessed to income tax is not permissible. 20. Should the taxpayer be sued for the income tax for which he has been assessed, proof of the assessment would be but the first step in the litigation, not the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Ex parte County Council of Kent. [1891] 1 Q.B. 725 In that case Section 29 of the Local Government Act, 1888 (51 52 Vic. 41) provided: That if any question arises or is about to arise as to whether any business power, duty or liability is or is not transferred to any County Council or joint committee under this Act, that question, without prejudice to any other mode of trying it, may on the application of the Chairman of Quarter Sessions or of the County Council, committee or other local authority concerned, be referred for decision to the High Court of Justice in such summary manner as, subject to any rules of Court, may be directed by the Court, and the Court, after hearing such parties and taking such evidence (if any) as it thinks fit, shall decide the question. 23. The Court in this case had only to deal with the question, which set of authorities should be charged with such and such portions of administration. Lord Esher said: In the case of Ex parte County Council of Kent [1891] 1 Q.B.725 where a statute provided that a case might be stated for the decision of the Court it was held that, though the language might prima facie import that there was to be the eq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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