Income Tax Appellate Tribunal - Nagpur
Gopaldas Mohta vs Commissioner Of Income-Tax, C. P. And ... on 30 December, 1949
Equivalent citations: [1951]20ITR516(NAG)
JUDGMENT
DEO, J. - This is a reference under sub-section (1) of Section 66 of the Indian Income-tax Act, made by the Income-tax Appellate Tribunal, Bombay, on the application of the assessee Diwan Bahadur Seth Gopaldas Bulakidas Mohta of Hinganghat.
In order to have a clear idea of the facts of the case we allowed the assessee to produce for our perusal the original partition deed dated the 26th May, 1930, which, we are told, was produced in the income-tax proceedings. In the partition Seth Mathuradas got assets of larger value than Seth Gopaldas. The result of the partition and accounts was that Seth Mathuradas had to pay Rs. 5,13,712-3-0 to Seth Gopaldas and the latter had to pay Rs. 1,21,376 to the former. It was agreed that Rs. 13,712-3-0 should be set off and Seth Gopaldas should pay Rs. 1,07,663-13-0 in cash while the sum of Rs. 5 lakhs should be paid to the assessee by Seth Mathuradas in ten equal annual instalments with interest thereon at Rs. 0-7-9 per cent. per mensem. If the interest was not paid punctually as provided in the deed, Seth Mathuradas was liable to pay compound interest and the entire outstanding amount was to become payable in default of three instalments. Seth Mathuradas was given the option to pay the instalments or the whole amount before due date and interest was to be charged on Katmiti basis, i.e., on daily balances.
Seth Mathuradas paid the first two instalments on due dates but did not make any further payment evidently on account of some dispute between the parties. The assessee instituted Civil Suit No. 8 of 1933 for partition of certain joint family property alleged to have been concealed by Seth Mathuradas. Evidently, as a counterblast the minor sons of Seth Mathuradas instituted Civil Suit No. 15-A of 1934 for reopening the partition. While these suits were pending the assessee instituted Civil Suit No. 1-B of 1939 for the recovery of the balance of Rs. 4 lakhs and interest thereon payable under the partition deed from 1st July, 1932, the whole amount having become payable on the 13th June, 1935, on default of three instalments. The total claim made was Rs. 5,37,137-13-0.
On 18th July, 1940, there was a compromise of all these three suits according to which the first two suits were dismissed and in the last suit Seth Mathuradas paid Rs. 4 lakhs in cash. As regards interest the dispute was referred to arbitration with full authority to the arbitrator to decide the question of interest in any way he liked. The arbitrator gave the award in these terms :-
"Taking into consideration the arguments of both are parties, their status, mutual agreement and dealings, business outlook, the existing rate of interest between leading businessmen and the fact that no businessman would allow his funds to remain idle but would take an advantage of the same, I give my award on these two questions that the plaintiff should be allowed interest on Rs. 4 lakhs and the rate of this interest whole be four annas per cent, per month on daily balance system (kat miti)".
Interest was thus allowed from 1st July, 1932, to the 22nd December, 1941, the date fixed by him for payment of the interest thus calculated. It was further directed that if the full amount of interest was not paid on this date interest would continue to run at the same rate till the amount was paid in full. This amount of Rs. 1,12,084 was received by the assessee on the 22nd December, 1941, and the suit was dismissed on the 23rd December, 1941, as the claim was thus fully satisfied.
Litigation expenses were deducted from this amount and the balance of Rs. 1,02,063 was assessed to tax in the assessment year 1943-44 as the previous year was 21st October, 1941, to 18th November, 1942. The assessee having unsuccessfully objected to this assessment before the Assistant commissioner of Income-tax and the Income-tax Tribunal, has sought this reference and we are asked to express our opinion on the question "whether in the circumstances of the case the sum of Rs. 1,02,063 is income liable to tax under the Indian Income-tax Act".
The learned counsel for the applicant urged that the transaction embodied in the partition deed dated the 26th May, 1930, was one single and indivisible transaction and that whatever was payable thereunder then or subsequently to a co-sharer would be capital. He contended that the Income-tax authorities erroneously assumed that there were two agreements : one of partition and the other of an advance of loan, and wrongly held that the sum in dispute was income.
At the time of the partition the parties determined the values of the movable and immovable properties and running businesses allotted to them. The properties were income yielding properties. As stated above, as a result of accounting and set-off Seth Mathuradas would have been required to pay a net amount of Rs. 3,92,336-3-0 to equalise the shares in partition but they arrived at an arrangement under which the assessee agreed to pay Rs. 1,07,663-13-0 immediately to Seth Mathuradas and the latter agreed to pay to the former Rs. 5 lakhs on terms and conditions above stated. If the assessee had received this sum of Rs. 5 lakhs he (to use the words of the arbitrator) "would not have allowed it to remain idle but would have taken advantage of the same by investing it in his business, money-lending or otherwise, and would have earned income, gain or profit therefrom". The reason for entering into this arrangement for payment, as given in Civil Suit No. 1-B of 1939, is that it was not convenient for Seth Nathuradas to pay this sum in cash at once. He could have borrowed this sum from a bank or other source and paid it to the assessee if the latter had insisted. Instead of doing so he persuaded the assessee to allow him to pay by instalments in return for interest agreed for this accommodation. Without this agreement to pay return for the use of money the assessee would not have allowed his brother the concession to pay the amount by instalments. The question would therefore arise whether this in reality is interest.
There can be no doubt that there were two agreements between the parties though embodied in the same document : one by which division of assets was effected, and the other for the use of the amount belonging to one by the other in consideration of payment of interest and its return in the manner provided in the partition deed. We are of opinion that the Income-tax authorities have taken a correct view of the partition deed.
A working definition of "interest" is given in Bells Dictionary and it is as follows : "Interest of money may be defined to be the creditors share of the profit which the borrower or debtor is presumed to make from the use of money. Otherwise stated it is a recompense to the creditor for being deprived of the use of his money".
It is unfortunate that the Income-tax authorities and the Appellate Tribunal have not stated how the instalments and interest paid and received with the first two instalments were treated by Seth Mathuradas, the assessee and the Income-tax authorities; and how the financial results of the partition and adjustments of cash were passed by them in their respective books of account. However, the terms of the partition deed and circumstances clearly establish that the assessee was to receive and did receive interest, under an agreement, as recompense to him for being deprived of the use of his money which, if he had obtained on the date of partition, would have yielded him on investment interest or profits. The arbitrator has awarded interest on this basis. Thus the sum of Rs. 1,02,063 received by the assessee was called interest and was in reality interest.
Under the agreement in question interest was payable periodically and if the agreement had been carried out interest would have been received every year and offered for assessment. The character of this periodical receipt or expected receipt does not change by the fact that the debtor did not carry out the agreement and make payments periodically. This interest payable to the assessee is thus a periodical monetary return coming in with some sort of regularity or expected regularity from a definite source.
Amongst the assets received by the assessee at the partition there were several debtors of the money-lending business of the joint family. By the agreement Seth Mathuradas became one more debtor allotted to the assessee at the partition. The assessee continued the money-lending business even to the year of assessment. In this view the interest in dispute would be profits or gains of the money-lending, to use the picturesque phrase used by their Lordships of the Privy Council in Commissioner of Income-tax, Bengal v. Shaw Wallace & Co. And we hold accordingly.
It is true that the Income-tax authorities have not treated this receipt as income from money-lending or any other business in excess profits tax proceedings. They appear to have treated it as "income from other source". Whether it is profits or gains of business or income from other source is really immaterial for the income-tax purposes as in either case it is liable to income-tax. We, therefore, propose to examine whether it can be income "from other source" even if it be not income from business.
Under Section 3 read with Section 4 of the Income-tax Act all income, profits and gains, from whatever source derived, are liable to tax unless such income, profit or gain is exempted under the Act. The income-tax is a tax on income and not on capital. Under Section 6 as it stood in the year of the assessment in question such income, profits and gains were chargeable to income-tax under the five heads mentioned therein. The receipt in question does not fall either under salaries, income from securities or income from property. The receipt, if it is not a capital receipt, must fall under one or the other of the two remaining heads, namely, profits or gains of business or income from other sources. Capital receipts are exempt from tax under Section 4 (3), clause (vii), as they would ex hypothesi be casual and non-recurring. Capital receipts are liable to tax only to the extent included by the special definition in Section 2 (6-c) of the Act which is as under :-
"Income includes anything included in dividend as defined in clause (6-a) and anything which under Explanation 2 to sub-section (1) of Section 7 is a profit received in lieu of salary for the purposes of that sub-section and any sum deemed to be profits under the second proviso to clause (vii) of sub-section (2) of Section 10 and the profits of any business of insurance carried on by a mutual insurance association computed in accordance with Rule 9 in the Schedule".
By a subsequent amendment, Section 12-B, the capital gains, under certain circumstances, are made liable to tax.
Neither "income" nor "capital" is defined under the Act. It is almost impossible to give a satisfactory definition of either as Pollock, M. R., observed in Atherton v. British Insulated and Helsby Cables, Ltd. : "What is capital and what is attributable to revenue account I suppose is a puzzling question to may accountants and I do not suppose that it is possible to lay down any satisfactory definition". As pointed out in Laird v. Commissioners of Inland Revenue :- "Whether a particular series of payments is income or not is prima facie a question of fact and not of law, for after all the whole distinction between capital and income is one of convenience and depends on the origin, nature and circumstances of the payment". As Sundaram in his well-known commentary on the Law of Income-tax in India says, "As to nature of income we have to seek guidance from judicial pronouncements which again are based largely on commercial usage. Commercial usage, unfortunately, is not altogether a reliable guide; and in practice there is no more baffling problem that faces a Commercial Accountant than the allocation of items as between Capital and Revenue. The concepts of Capital and Income have been the subject of close analysis by successive generations of economic thinkers from the time of Adam Smith, but the concepts have been elusive and have defied analysis".
Their Lordships of the Privy Council have defined "income" in Commissioner of Income-tax, Bengal v. Shaw Wallace & Co., which is a leading case on this point. Their Lordships observed as follows :-
"The object of the Indian Act is to tax income a term which it does not define. It is expanded, no doubt, into income, profits and gains, but the expansion is more a matter of words than of substance. Income, their Lordships think, in this Act, connotes a periodical monetary return coming in, with some sort of regularity, or expected regularity from definite sources. The sources is not necessarily one which is expected to be continuously productive, but it must be one whose object is the production of a definite return, excluding anything in the nature of a mere windfall. Thus income has been likened pictorially to the fruit of a tree, or the crop of a filed. It is essentially the produce of something, which is often loosely spoken of as capital. But capital, though possibly the source in the case of income from securities, is in most cases hardly more than an element in the process of production".
The same definition has been affirmed by their Lordships in Maharajakumar Gopal Saran v. commissioner of Income-tax and in Kamakshya Narain Singh v. Commissioner of Income-tax. It has been followed by the Allahabad High Court in Major A. U. John, In re. In the Shaw Wallace case, their Lordships were considering the question whether "some sort of solatium" paid to selling agents for the compulsory cessation of their oil agencies was business income as contended by the "taxing authorities" and the answer was in the negative as the sums were not receipts arising from carrying on the oil agencies was business income as contended by the "taxing authorities" and the answer was in the negative as the sums were not receipts arising from carrying on the oil agency business. Their Lordships did not hold it to be "income" and added that the above reasoning would apply equally if it was sought to be taxed as income from other sources.
In Maharajakumar Gopal Saran v. Commissioner of Income-tax, the assessee had transferred his interest in certain properties in consideration of a lump sum and of discharge of certain debts and of payment to him of a life annuity of Rs. 2,40,000 a year. The question was whether this annuity was a capital receipt, being a deferred consideration of the transfer payable by instalments, or income. Their Lordships held it to be income and income taxable under Section 12 of the Act, "as the source of the life annuity is the covenant. The life annuity is the product of one of the items (viz., the covenant) which the appellant has taken in exchange for the estate". They repelled the argument that "the words income, profits and gains in Section 12 (1) of the Act must be constructed as including only such income as constitutes or provides a profit or gain to the recipient".
They held that the word "income" is not limited by the words "profits and gains". Anything which can properly be described as income is taxable under the Act unless expressly exempted.
In Kamakshya Narain Singh v. Commissioner of Income-tax, the question was whether royalty on coal mines is a capital receipt or income. It was there contended for the assessee that it was a price of coal extracted by the lessees at their cost and that such price is by its nature and quality capital and not income. The leases in that case provided for payment of a minimum royalty every year which was payable even if no coal was extracted. Their Lordships held that "royalties are periodical payments to be made by the lessee under his covenants in consideration of the various benefits which he is granted by the lessor,...... The actual acquisition of the property in a particular ton of coal at the moment when the lessee has cut and taken away the coal is only the final stage ...... The royalties are clearly not capital but income within the meaning of the Act, whatever may be the exact definition of that word in the Act". It is true that their Lordships held that the royalties cannot be regarded as profits or gains from business and that the source of royalty may properly be deemed to be the lessees covenant to pay it and hence royalty falls under "other source". Their Lordships observed that "income is not necessarily the recurrent return from a definite source though it is generally of that character....... The multiplicity of forms which income may assume is beyond enumeration". It is therefore not possible to have any scientific definition of income. This is evidently the reason why it is not defined in the Act.
The learned counsel for the assessee has urged that the receipt in question is not income but capital as it is an accretion to his capital of Rs. 5 lakhs and has relied on Commissioner of Income-tax, Bengal v. Mercantile Bank of India, Ltd., and Commissioner of Income-tax, Burma v. J. I. Milne. Money in the form of currency does not appreciate in value in terms of the same currency, though its purchasing power alters. The case of movable property like shares is different. If a person who does not carry on business in shares makes an investment and that investment appreciates in value on account of the increase in the price of shares in the market, the increased value will not be income but capital if the shares are sold at the enhanced value. The dividends earned during the period will be income. The appreciation in value must be capable of being measured in terms of money. The sum of Rs. 5 lakhs remained unaltered. Unless the amount is used for some business or otherwise invested, the owner will not get anything more than Rs. 5 lakhs at any subsequent time. The use of money brings in a return and that return is income. The sum in dispute was received by the assessee not because the sum of Rs. 5 lakhs kept or allowed to remain with Seth Mathuradas appreciated in value by the mere custody of Seth Mathuradas but it was the amount paid as return for the use by Seth Mathuradas of the money of the assessee. Therefore, the sum in dispute can in no sense be called an accretion to the sum of Rs. 5 lakhs and thus a capital receipt.
In Commissioner of Income-tax, Bengal v. Mercantile Bank of India, Ltd., the Commissioner of Income-tax, Bengal, contended that the debentures issued to the trustees of the assessee Sir David Yule was income liable to tax. These debentures were issued in the "previous" year ending 31st March, 1931, and the amount secured by them were made repayable at the latest on the 31st December, 1940. These debentures were in fact all redeemed prior to the end of February, 1933. They were issued under the following circumstances :-
"The companies in which the assessee had a controlling interest had very large accumulations of undistributed profits. The trustees of the estate of the assessee had to make very heavy outgoings both in United Kingdom and in India in relation to the estate of the assessee and it was to provide funds for such duties that a scheme was devised whereby the accumulated profits would come into their hands, and be available for the purpose of meeting such charges".
Their Lordships were of the opinion that the issue of these debentures was not distinguishable from the case of issue of bonus shares and the receipt of debentures by the assessee was not income but a capital receipt. They were of the opinion that the personal motive or purpose of the individual shareholders even if they had a controlling interest in the company was irrelevant and that if it was made out that the company had in fact capitalised the accumulated profits, the debentures issued would be capital receipt. The learned counsel pointedly drew our attention to the above passage and contended that the receipt in dispute was a capital receipt. We do not find any support in this ruling for his submission. It is applicable to the sum of Rs. 5 lakhs the assessee received in partition but not to the subsequent interest the received in the assessment year.
In Commissioner of Income-tax, Burma v. J. I. Milne, it was held that the advance by the assessee was in no sense a business transaction and he took the chance of repayment of this sum lent in the event of the property being sold and a profit accruing from the proceeds of the sale. This was neither income from business nor from other source. Even if this view is correct, it is of no help to the assessee as the facts are entirely different.
The learned counsel for the assessee next contended that the sum received by him was damages awarded by the arbitrator for wrongful withholding of his money by Seth Mathuradas. He submitted that the assessee did not receive the amount under the partition deed but under the award dated the 20th December, 1941. The receipt is thus liquidated damages and not interest. He contended in the alternative that even assuming that the sum was awarded on the basis of the agreement dated the 26th May, 1930, it was liquidated damages under Section 74 of the Contract Act.
There are no facts to support this contention. There is nothing in the partition deed or in the facts as found and stated in the statement of the case that any compensation or damages were agreed to be paid by Seth Mathuradas for settling the partition dispute amicably. It is clear as daylight that Seth Mathuradas had to pay this amount as a result of accounting at the partition. He could not conveniently pay it without affecting his business, and to use the words of the arbitrator, "no businessman would allow his funds to remain idle but would take advantage of the same". This is therefore a case in which M wanted to use moneys belonging to G to which the latter was immediately entitled, and G would not allow such use unless he gets suitable return for the use. Therefore the parties came to an agreement that M shall have the use of the moneys if he agrees to pay hire (return) for the use and such hire we call interest.
Under the partition deed partition was complete when the property was divided and payments to be made by each party ascertained and made payable. Thus the partition was made in equal shares and each party was entitled to enforce the terms of the partition deed. The moneys payable under the partition deed would thus be debts due by one to the other. A debt is an ascertained sum of money due under an express or implied agreement and interest is the return for the use of money. Interest is payable under a contract express or implied or by a usage or under some statutory provision or under the Interest Act, XXXII of 1839. The Interest Act provides that upon all debts or sums certain payable at a certain time or otherwise, interest can be claimed under certain circumstances provided in the Act. To earn interest it is not necessary that a loan at interest must be advanced.
It is not known what dispute regarding interest was really raised by Seth Mathuradas in Civil Suit No. 1-B of 1939 and what considerations led to the compromise and reference to arbitration. However, on proper construction of the compromise petition it appears that only the question of rate of interest was referred to arbitration though the award creates and impression that the question of liability for interest was also referred to the arbitrator. The award of the arbitrator, the material portion of which is reproduced in paragraph 4 above, lends no support to the contention that he was awarding interest by way of damages for wrongful withholding of money by Seth Mathuradas. In Schulze v. S. W. Bensted, it was held that "the trustees were deprived of the use of the amount rightfully belonging to the trust estate, and if they had it, presumably they would have invested it, and if they had invested it, presumably it would have yielded them 3 1/2 per cent. and therefore as recompense for being deprived of the use of this trust money they had awarded to them the sum which it would have earned in their hands if placed in a proper trust investment. That appears to me to make it clear that this was interest in the proper sense of the word and not liquidated damages".
It was further held that the penal interest at 5 per cent, per annum awarded by the lower Court could only be awarded on proof that the trustee had committed fraud or had misappropriated trust money to his own use and that in the absence of proof of fraud or misappropriation the trustee should be ordered to pay such legal interest as he would have earned which was 3 1/2 per cent. per annum in those days. It is therefore clear that the sum that was awarded was interest and not damages.
The learned counsel for the assessee relies on Commissioner of Income-tax, Bihar and Orissa v. Rani Prayag Kumari Debi and Behari Lal Bhargava v. Commissioner of Income-tax and Bengal Nagpur Railway Co., Ltd. v. Ratanji Ramji. In Commissioner of Income-tax, Bihar and Orissa v. Ranik Prayag Kumari Debi, the assessee sued Raja Sheoprasad Singh for possession of an impartible estate known as "Jharia Raj" together with certain movables and for damages for their wrongful detention. These movables were claimed in the alternative as the self-acquisitions of the late Raja to which she was solely entitled and which the defendant had wrongfully taken and retained. It was ultimately held that the defendant was the rightful successor to the Raja, that the assessee was entitled to maintenance, that the movables in dispute were inherited by the assessee on the death of the late Raja, that the assessee was entitled to maintenance, that the movables in dispute were inherited by the assessee on the death of the late Raja, and that they were wrongfully detained by the defendant. As a result a decree was passed for the return of the movables and in the alternative for their value and for damages for wrongful detention of the movables. The decree was compromised and it was agreed that the repayments made should be appropriated towards the value of the movables and damages in the proportion of 6 to 10. The question arose whether the sum of Rs. 62,500 received in the relevant account year as damages was liable to tax. Their Lordships answered this question as under :-
"The amount of Rs. 62,500 was received as damages for the wrongful withholding of possession of the movable properties by the defendant (as held by their Lordships of the Privy Council while delivering judgment in the Jharia Raj Case). The Raja was bound under no contract to pay any interest to the Rani for these properties. Indeed the Raja was claiming the properties as his own and his title to retain possession of these properties was ultimately disposed of by a decree of the court confirmed by their Lordships of the Judicial Committee". (p. 206).
We are of the opinion that this case affords no assistance to the assessee. As observed by their Lordships, the basis of liability was the tortious acts of Raja Sheoprasad Singh, and what was decreed was damages for such acts. The basis of the liability in the present case is the agreement to pay interest. There is nothing on the record to show that the liability under the agreement was disputed by Seth Mathuradas. No doubt, the compromise petition authorises the arbitrator to settle the question of interest in any way he liked. In fact, he had framed two questions : (i) whether interest should be allowed, and (ii) what should be its rate. On a true construction of the compromise petition there was no room for the first question. The award makes it clear that the agreement was not given a go-by but the liability under the agreement was reduced taking into consideration other circumstances as reproduced in paragraph 5 above. Thus, this is not a case of wrongful detention of movable property but payment for the use of money by Seth Mathuradas under an agreement.
In Behari Lal Bhargava v. Commissioner of Income-tax, it was held "that the interest awarded under Section 28 of the Land Acquisition Act is compensation for the loss of the owners right to retain possession of the property acquired till full compensation is offered. In other words, it is damages assessed in terms of interest for loss of possession of the property up to the date of receipt of consideration".
The correctness of this decision was doubted in Commissioner of Income-tax, Madras v. Narayanan Chettiar. The case does not in any way help the assessee.
In Bengal Nagpur Railway Co., Ltd. v. Ratanji Ramji, it has been held that in the absence of any usage or contract, express or implied, or of any provision of law to justify awarding of interest on the decretal amount for the period before the institution of the suit, interest for that period cannot be allowed by way of damages. It would thus appear that the receipt in dispute of interest payable under contract could not in any sense be by way of damages.
Following Schulze v. S. W. Bensted a distinction is drawn between interest and damages in Commissioner of Income-tax, Madras v. Narayanan Chettiar. In Commissioner of Income-tax, Madras v. Narayanan Chettiar, the facts were that on the death of a partner, leaving two minor sons, the other partner continued the business with the assets of the firm. The share of the deceased partner in the assets was ascertained but was not paid. On the sons attaining majority a panchayat was held to decide what interest should be paid on the amount found due to the deceased and the amount awarded was received by the assessee. It was sought to be assessed. It was held that the receipt was interest and not by way of damages for wrongful detention of money because in the eyes of equity that interest which the other partners must have earned or must be deemed to have earned by the use of the money of the assessee, rightfully belonged to the assessee. Under Section 37 of the Partnership Act the outgoing partner is entitled to a share of the subsequent profits earned with his capital or to interest at 6 per cent. per annum on his money. In either case it is income liable to tax. This case is analogous to the present case.
The learned counsel for the assessee contends that the receipt was of a casual and non-recurring nature and not liable to tax and relies on John v. Commissioner of Income-tax. It that case the Agra United Mills, Ltd., was sold in auction for Rs. 20,80,000 in execution of a decree of the debenture-holders for recovery of Rs. 62,00,000. No cash proceeds were received. The sale amount was set off against the decree. The assessee held rupees forty lakhs of debentures and the other ten lakhs were held by his brother Mr. G. A. John. The assessee was appointed auctioneer. A poundage fee of 6 1/4 per cent. on the sale proceeds was payable to Governments under the rules; but the Court had the power to allow commission to the auctioneer up to 5 per cent. The Court allowed the assessee to deduct 5 per cent. as commission and pay 1 1/4 per cent. as poundage fee. The question arose whether this commission of 5 per cent. amounting to Rs. 1,04,000 was liable to tax. Their Lordships held that "the assessee in fact received nothing at all. The mills were sold at a price a long way below the sum owed to the debenture-holders. The Court considered it equitable to relieve the debenture-holders of the payment of auctioneers commission, the auctioneer being one of the debenture-holders. In the circumstances it would be unreasonable to regard the relief to the debenture-holders as income...... In any event it did not arise out of any business or exercise of vocation or occupation and it was of a casual or non-recurring nature". (p. 696).
This is clearly distinguishable from the present case on our finding in paragraph 11 above.
In conclusion, we answer the question referred to us in the affirmative. The assessee shall bear all costs of this reference. Counsels fee Rs. 100 for the Commissioner and Rs. 500 for the assessee. A copy of this judgment be sent to the Appellate Tribunal under Section 66(5) of the Income-tax Act.
Reference answered accordingly.