Ajit K.Sengupta, J. - (1.) In this reference under Section 256(2) of the Income-tax Act, 1961, for the assessment years 1975-76 and 1979-80, the following common question of law has been referred to this court : "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in holding that the sum of Rs. 2,55,959 representing surplus in 'unclaimed undercharges account' was not a receipt incidental to the carrying on of business and deleting it ?"
(2.) The facts as would appear from the statement of case are stated hereinafter. The assessee is a limited company. The assessee-company is a dealer in coal and works as a middleman between the collieries and the consumers of coal, Coal was loaded into railway wagons by the collieries, i.e., the consignor, who sent copies of the forwarding notes to the assessee-company'. The freight was payable by the consignee. Normally, the consignee had to pay the freight payable with reference to the full loading capacity of the railway wagon irrespective of the actual quantity of coal loaded. The assessee-company preferred a bill for the difference between the amount of the freight payable with reference to the full capacity of the wagon and the freight payable with reference to the coal actually loaded in the wagons by the consignor. The consignor or the colliery paid the said difference which was credited by the assessee-company to a separate "under loading charges" or "under charges" account. Sometimes, the consignee also claimed a similar difference from the assessee-company between the freight actually paid by it with reference to the full loading capacity of the wagon and that chargeable to the actual quantity of coal loaded in the wagon and such claims were settled by the assessee. Quite often the assessee did not have to pay the amount of the difference to the consignee though it realised that from the consignor-colliery as the consignee did not always prefer claims. The surplus balance in the "under charges account" was credited by the assessee to its profit and loss account but claimed it as non-taxable. The Income-tax Officer added Rs. 2,55,959 being the "balance of under charges account" credited by the assessee to its profit and loss account during the years under reference.
(3.) Against the addition of Rs. 2,55,959, the assessee filed an appeal before the Commissioner of Income-tax (Appeals ). The Commissioner of Income-tax (Appeals ), following the decision of the Hon'ble High Court at Calcutta in the case of the assessee in Karamchand Thapar and Bros. (Coal Sales) Ltd. v. CIT, sustained the action of the Income-tax Officer.;