TMI Blog1984 (3) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... al Mines Nationalisation Act, 1973. A compensation of Rs. 5,67,000 was determined payable by the Commissioner of Claims appointed under s. 17 of the said Act. It appeared that in addition to some assets of the assessee, the assets of the contractor employed by the assessee for exploitation of the mines, were lying in the mines. Under s. 26, sub-s. (5), of the Coal Mines Nationalisation Act, 1973, where any machinery or equipment or other property in the coal mine had vested in the Central Government or a Government company under the Act, but, such machinery, equipment or other property did not belong to the owner of such coal mine, the amount of compensation would, on a reference made to it by the Commissioner of Claims, be apportioned by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court has not yet made an award of apportionment of compensation between the assessee and the contractor, the fact whether the assessee would be entitled to terminal loss under s. 32(1)(iii) or assessable to profit under s. 41(2) would become clear only after the District Court passes the award apportioning the compensation between the assessee and the contractor. The Tribunal, therefore, set aside the order of the Appellate Commissioner and also of the ITO and sent the case back to the ITO to pass an order after the award of the District Court is obtained on the question of apportionment of compensation. At the request of the assessee the Tribunal has made this reference for answering the question quoted above. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other hand, contended that the Tribunal's order in no way disposes of the matter finally. It was contended that under s. 26(5) of the Coal Mines Nationalisation Act, jurisdiction is conferred on the District Court for apportionment of the compensation and it is only after the award of the District Court that it could finally be determined as to what amount of compensation will be available to the assessee and, therefore, on that basis it could be worked out as to whether there will be profit taxable under s. 41(2) or loss under s. 32(1)(iii) of the I.T. Act. It was contended that in view of the language of s. 26(5) of the Coal Mines Nationalisation Act, it could not be disputed that the matter will be final only when the District Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the property and assets which the contractor may have lost on the coal mines. The only controversy is that according to the learned counsel for the assessee these are matters which could be ascertained by taking the price of articles lying on the coal mines and applying a scientific basis for assessment of it. It was contended that the contractor's claim for loss was accepted by the Tribunal as it was before a different Tribunal whereas the estimate of the assessee, the owner of the coal mines, based on the same basis has not been accepted by the Tribunal where this case was heard. Calcutta Co. Ltd. v. CIT [1959] 37 ITR 1 (SC), on which reliance was placed by the learned Commissioner (Appeals), lays down that the difficulty in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elt that it is only then that it could be found out whether there will be profit available for taxation under s. 41(2) or loss to be considered under s. 32(1)(iii) of the I.T. Act. It is, therefore, not a case where the ITO's assessment would be final until the District Court passes its award and it is in view of this matter it appears that the Tribunal reopened the case and sent it back to the ITO to decide after the award of the District Court. It is, no doubt, true that whether the question of limitation will cause any impediment or not, does not appear to be a question raised in this order of reference nor is that question referred to us and in that view of the matter it is not necessary for us to go into that question. As the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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