Sarkar, J. - (1.) We think this appeal must be allowed. It is directed against the judgment of the High Court of Punjab refusing the appellants application under section 66(2) of the Income Tax Act, 1922, for an order directing the Income-tax Appellate Tribunal to refer the following question to the High Court for its decision :"Whether on the facts and in the circumstances of the case the sum of Rs. 94,253 or any part of it accrued or arose or could be deemed to accrue or arise, or was received or could be deemed to be received by the assessee as income, profits and gains during the previous year."
(2.) The facts are few. The assessee entered into a contract for the forward sale of certain quantity of mustard on February 5, 1952, at Rs. 27-8-0 per maund. The price fell soon thereafter, and the purchaser purported to cancel the contract before the due date which was June 7, 1952, but the assessee refused to accept the cancellation. On February 28, 1952, the assessee sent a telegram to the purchaser that if the purchaser did not inform it within four hours that it accepted a settlement of the contract at Rs. 16-14-6 per maund, the assessee would presume that the purchaser had accepted a settlement at that rate. The purchaser never sent any reply to this telegram. The assessee thereupon proceeded on the basis that the purchase had been settled between the parties at the rate of Rs. 16-14-6 per maund and claimed a sum of Rs. 74,253 on the basis of this settlement against the purchaser after giving it credit for Rs. 20,000 due to it on another account. The claim not having been complied with, the assessee on April 8,1952,filed a suit againsd the purchaser for the recovery of that amount which was decreed by the trial court and at the date of the assessment order, an appeal from that decision was panding: in the high court of punjab . in its return for the relevant assessment year the assessee appended the following note: "According to the assessee there is a profit of Rs. 1,09,072... The assessee has filed a suit for Rs. 75,000..... Unless the suit is decided the exact amount of profit cannot be determined and the liability admitted by the company."
(3.) By the words "the company" was meant the purchaser.;