G.G.SOHANI, J. - (1.)BY this reference under S. 256 (1) of the IT Act, 1961, the Tribunal, Indore Bench, has referred the following questions of law to this Court for its opinion. At the instance of the CIT:
"(i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 70,000 received by the assessee consisted partly of a capital receipt and partly of a revenue receipt '? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the Revenue portion of the aforesaid receipt represented the assessee's share of profits for the asst. yrs. 1975 76, 1976 77, 1977 78 and 1978 79 and should be spread over and apportioned as such ?" At the instance of the assessee : " (iii) Whether the Tribunal was justified in holding that part of the amount of Rs. 70,000 received by the assessee was attributable to the assessee's share of profits in terms of S. 37 of the Indian Partnership Act and, accordingly, liable to tax in her hands ?"

(2.)THE material facts giving rise to this reference as set out in the statement of the case, briefly, are as follows : The assessee was a partner in a partnership firm carrying on business in the name and style of Star Agency. On October 29, 1974, the assessee was expelled from the partnership. The assessee challenged that action by commencing legal proceedings in that behalf. Ultimately, the matter was settled between the parties and the assessee was paid a sum of Rs. 70,000 on account of her share in the partnership firm, on the closing date of the relevant accounting year. In the course of the assessment of the assessee for the asst. year 1978 79, the ITO assessed the entire amount of Rs. 70,000 as the income of the assessee for that year on the ground that the said amount represented the assessee's share of profits for the asst. yrs. 1975 76, 1976 77, 1977 78 and 1978 79. The ITO held that as the quantification of the right of the assessee to profits was done during the accounting year relevant to the asst. year 1978 79, the whole amount of Rs. 70,000 was taxable in the asst. year 1978 79. The ITO rejected the contention raised on behalf of the assessee that the said amount received by her was in the nature of a capital receipt. The appeal preferred by the assessee before the AAC was dismissed. On further appeal before the Tribunal, it was held by the Tribunal that part of the amount received by the assessee was in respect of relinquishment of the assessee's right to share the future profits in the firm and, to that extent, it was of a capital nature. The Tribunal further held that part of the amount received by the assessee was attributable to the share of profits that the assessee was entitled to under S. 37 of the Partnership Act and that it would have to be spread over the four years in question. In this view of the matter, the Tribunal remanded the case to the ITO for determining the capital and revenue portions of the amount received by the assessee and for apportionment of the Revenue portion in the four years in question. Aggrieved by the order passed by the Tribunal, the Revenue as well as the assessee sought reference and that is how the aforesaid questions of law have been referred to this Court for its opinion.
Having heard learned counsel for the parties, we have come to the conclusion that to answer the questions referred to this Court, a supplementary statement of the case would be necessary. We find from the order of the ITO which is on record that the payment in question was received by the assessee from Delhi Bidi Sales Agency, Bhopal. The Tribunal, in its order, has observed as follows :

"A perusal of the notice by the assessee's representative and the other correspondence on the subject would show that the assessee claimed that she had been a partner of the firm in pursuance of the deed executed on October 22, 1973, and that without any reason, she had been excluded from the business profits which, according to her, were rising high day by day. By a publication in, the Hitavada on October 20, 1974, the firm was stated to have been dissolved, but the assessee did not accept this dissolution. On the other hand, her counsel specifically gave a notice to the firm that the same firm was continuing the business only with a change of name from Star Agency to Delhi Bidi Sales Agency. This firm was being run by the use of the assets of the old firm and this action was not acceptable to the assessee. The assessee's claim in this notice that, instead of completely winding up the affairs of the old firm and settlement of the accounts, the new firm had started business by using the assets and the goodwill, etc., and had failed to render accounts to the assessee in spite of various oral demand"

(3.)THE Tribunal, however, has not given any finding on the question as to whether the firm Star Agency, of which the assessee was a partner, was or was not dissolved and that if it was dissolved, the date on which it was dissolved. Though the Tribunal has referred to the agreement between the assessee and other partners whereby the disputes between them arising out of expulsion of the assessee from the partnership were settled and the assessee was paid a lump sum, neither the agreement is on record, nor has the Tribunal referred to the terms and conditions of that agreement. In our opinion, the statement of the case submitted by the Tribunal is not sufficient for determing the question referred to this Court and learned counsel for the parties agree that the Tribunal should be directed to send a supplementary statement of the case.