TMI Blog1937 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law arising out of an order either by the Assistant Commissioner or by the Commissioner himself or arising out of the decision of a Board of Referees and the Commissioner shall within a specified time draw up a statement of the case and refer it with his own opinion thereon to the High Court. It is therefore always open to an assessee who desires to argue the legal consequences of the facts to require a reference as to whether the Commissioner has attributed in law the correct legal consequence of the facts he has found. In the case under review the question was net happily framed, because it obscured the real question of law, namely, what were the legal consequences of the facts. Whenever the facts found by the Commissioner give ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on behalf of the Commissioner of Income Tax that the question of succession must always be a pure question of fact and a number of cases were cited which were supposed to support this proposition. It is really enough to say that they were all cases in which no question of legal construction happened to be involved. Once any legal difficulty as to the application of the phrase succeeded in the same capacity has been solved then, in the words of the Lord President of the Court of Session in Tomson and Balfour v. Le Page (1920) 8 Tax. Cas. 549 the question whether there is in any particular case a succession or not is a question of fact . Lord Skerrington in his judgment said: Primarily I should say that it is a question of fact whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext pass on to consider In re Commissioner of Income Tax, Burma v. N.N. Firm decided by a Full Bench and reported in A.I.R. 1934 Rang. 13. Page, C.J. thereafter referring to the facts said: Upon these facts the Income Tax authorities have held that there was a succession to the money lending business of the undivided joint family within Section 26(2), Income Tax Act. In my opinion it is manifest there was not a 'succession' within Section 26(2) of the Act. In order that a person should be held to have succeeded another person in carrying on a business, profession or vocation it is necessary that the person succeeding should have succeeded his predecessor in carrying on the business as a whole. Where a business is split up and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the site in July 1926 and a new company entered into possession, re-built the premises, and opened them to the public in April 1928. It was held that the Commissioners could rightly arrive at the conclusion that there was in fact a succession by the new Company to the business of the old one. 9. The case was, as the learned Judge who tried it pointed out, rather peculiar and special and depended perhaps even more than usual upon its own particular facts. The question really comes down in all such cases to this; whether there is a delay which as a matter of law the Commissioner is bound to regard as forcing him to infer that there was not a succession. This delay is a question of degree, and in some cases a delay may only mean a cesser of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds what was said in A.I.R. 1934 Rang. 13 at p. 504, that a person who carries on a part of a business only does not 'succeed' his predecessor in carrying oh the business within Section 26, Sub-section (2), this is perhaps stated too broadly. It has, I think, rightly been held in Stockham v. Wallasey Urban District Council 1907. 95 L.T. 834 that succession to a separate branch of a business constitutes succession within the meaning of the rule, and the Indian rule is for this purpose identical with the English. Leach, J. 15. I agree that the answer to the question propounded should be in the affirmative; but I wish to state that in answering the question in this way I do not accept the argument advanced on behalf of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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