- (1.) The appellant assessee, who is an individual, carries on business of supplying lime and sand. With the object of procuring sand, he obtained a leave under a lease-deed dated Ist February, 1954, from the then Govermnent of State of Hyderabad. The terms of this lease, which are relevant for the purpose of deciding these appeals, will he indicated later. At this stage, it may, be mentioned that, under this lease, the assessee was required to pay a sum of Rs 82,500/- as lease money to the Government. The period of lease was found 1st February, 1954 to 31ist December, 1954. The assessee's account year ends with the last day of September each year. The assessee paid a sum of Rs. 56,100/- in respect of the account year ended 30th September 1954 for the assessment year 1955-56 and another sum of Rs. 26,400/ for the account year ended 30th September, 1955 relevant to the assessment year 1956-57. Both these payments were claimed by the assessee, in the proceedings for assessment to income-tax, as revenue expenditure. The Income-tax Officer held that, under the lease-deed, the assessee had secured a right to quarry sand from the river-bed, which was a right in the nature of a capital assets, so that these payments made to secure the right were capital expenditure, and disallowed their deduction as revenue expenditure. The assessee appealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner, in addition to the material provided by the terms of the lease-deed and other material before him, made a personal investigation also. Thereafter, in his appellate order, he recorded findings that the lease was a short-term contract for one year, that the contract was for removal of sand lying on the surface of the river-beds within a specified period, and no excavation or skilful extraction was involved in the process, and that no interest in the land was conveyed to the lessee, and, if the lessee discovered any minerals not specified in the deed, he was required to report that fact to the Director of Mines and obtain a prospecting licence separately. On these facts, he held that what the assessee had secured under the lease-deed was only stock-in-trade of his business and not a capital asset, so that his claim that the payments made by him under the lease-deed to the Government were deductible as revenue expenditure was allowed. Thereupon, an appeal was brought before the Income-tax Appellate Tribunal by the Department. The Tribunal upheld the order of the Appellate Assistant Commissioner. At the instance of the Department, the Tribunal then referred the following question for opinion to the High Court :- "Whether, on the facts and in the circumstances of the case, the payments of Rs. 56,100 for the assessment year 1955-56 and Rs. 26.400 for the assessment year 1956-57 made under the lease deed dated 1-2, were expenditure of revenue nature - The High Court answered the question in the negative, accepting the case of the Department, and thus upsetting the decision given by the Appellate Assistant Commissioner and the Tribunal. The assessee has now come up to this Court in appeal by certificate granted by the High Court.
(2.) Learned counsel appearing for the assessee first contended before us that an examination of the terms of the lease-deed would show that no right at all in the land was acquired by the assessee under the lease and that the only right which had been acquired was the right to remove sand lying on the land constituting the beds of the river and the nallahs specified in the deed and the ancillary right to enter the land for that purpose. It appears to us that, on the language of the lease-deed, this submission cannot be accepted. The lease specifically mentions in para 3 that, under it, the Government do hereby demise and grant unto the lessee exclusive lease and liberty to enter, occupy, and use for quarrying purpose and to raise, render marketable, carry away, sell and dispose of sand within or under or upon the lands specified in this lease and for the period named therein. Thus, there was a specific provision that the lessee was to have an exclusive right to enter and occupy the land. Further, was a provision that, in case any mineral not specified in the lease was discovered in this land, the lessee was to report such discovery to the Director of Mines and Geology and could obtain either a prospecting licence or a mining lease in respect of it, but, if he intimated his intention of not working the newly discovered mineral, or failed to give any intimation to work it within the period of three months, it would be open to the Government to sublet the working of such newly discovered mineral. This use of the word "sublet" in the deed indicates that, though the Government reserved to it the right to allow some other person to work the newly discovered mineral, that person could only be admitted as a sub-lessee and, obviously, he would be the sub-lessee under the assessee. These terms do indicate that an interest in land was also conveyed by the lease; but that is, in our opinion, not decisive of the question whether the money payable under the lease was a capital expenditure or a revenue expenditure. As an example, if a shop is taken on rent by a person to run his business and he pays monthly or annual rent, he certainly acquires an interest in the building and the land on which it stands as a lessee, but no one will contend that the payment of rent would be an expenditure of a capital nature and not revenue expenditure. The decisive factor is the object with which the lease is taken and the nature of the payment which is being made when obtaining the lease.
(3.) In the present case, there are a number of factors which lead to the conclusion that the expenditure incurred by the assessee in obtaining the lease was revenue expenditure for the purpose of obtaining stock-in-trade and not capital expenditure. The first point is that the lease was for a very short period of 11 months only. Consequently, it is clear that the assessee did not obtain any capital asset of an enduring nature by obtaining this lease. Then the second circumstance is that the sole right which was acquired by him under the lease-deed was to take away the sand lying on the leased land. No doubt, the document mentioned that he was entitled to raise render marketable, carry away, sell and dispose of the sand within or under or upon the land specified in this lease; but there was a clear finding of fact recorded by the Appellate Assistant Commissioner and affirmed by the Tribunal that all the sand that could be removed was lying on the surface and there was no question of raising, digging or excavating for the sand before obtaining it. No operations were, therefore, to be performed on the land itself. It appears that the High Court, in giving its decision against the assessee, fell into an error in not accepting the finding of fact that the sand was lying loose on the surface and the contract was only for removal of that sand and, instead, recording for itself a different finding. In its appellate order, the Tribunal mentioned the findings of fact recorded by the Appellate Assistant Commissioner and added: "It is to be noted that the findings of fact given by the Appellate Assistant Commissioner as quoted from this order above have not at all been challenged before us in these appeals." The findings of fact to which this sentence referred, included the finding recorded by the Appellate Assistant Commissioner that it was a contract for removal of sand lying on the surface of the river-beds within a specified period and no excavation or skilful extraction was involved. No doubt, this finding of fact was partially based on the personal investigation made by the Appellate Assistant Commissioner and this investigation was made, as held by the High Court, about six years after the lease contract had been entered into. The High Court was of the view that it was difficult to see how, after a lapse of six years, the terms of the lease deed could be varied, altered or clarified so as to confer any benefit on the lessee, and that the lease-deed contained absolutely no reference to the accumulation of sand as the result of floods its lying loose on the surface and the lessee being allowed to remove the sand merely from the surface without digging underneath. In examining this question of fact it is clear that the High Court exceeded its jurisdiction. The finding of fact recorded by the Appellate Assistant Commissioner had been affirmed by the Tribunal and no question was referred to the High Court that it was a finding which was based on no evidence. Whether the evidence on which the finding was accepted by the Tribunal was good or bad did not fall for consideration by the High Court. The finding being binding on the High Court, that Court should have proceeded on the basis that these facts did exist and should have examined the legal position on that premise. This circumstance that the sand was lying loose and merely required removal without any excavation or digging makes it clear that what the assessee was taking under the lease for the purpose of his business was the right to remove that sand and that he was not acquiring the land or any other rights in the land for any other purpose. Then there is the additional fact that the lease was for a very short period of 11 months. On these facts, the conclusion was irresistible that, in agreeing to pay this large sum of Rs. 82,500. the assesses was bargaining for the right to remove the sand lying loose on the land within that short period of 11 months to the extent to which he could do so. He did not acquire any fixed or capital asset of an enduring nature by obtaining this lease and all he had in view was to have the right to obtain his stock-in-trade in the form of sand.;