1969 PLP 686 (PTD)

A. S. CHOWDHURY, J. The Income tax Appellate Tribunal, Dacca Bench, Dacca, has referred the following question for our opinion: "Whether on the facts and in the circumstances of the case, Income tax Appellate Tribunal was right in holding that the operation of the vessel M. V. Ludlow and the jute broking business did not constitute the "same business" as envisaged in subsection (2) of section 24 of the Income tax Act, 1922 ?" It will appear from the statement of the case submitted by the Tribunal that the assessee Ludlow Pakistan Co. Ltd., had a business of running jute baling plant and broking jute. The assessee purchased a vessel called N. V. Ludlow which reached Pakistan on 10-10-49. It gave up its jute baling business in June 1949. The vessel made its first trip in August 1950. It was used by the assessee for carrying jute it broked and at times the vessel had to go to Khulna and other places with its cargo of jute, and it was also expedient for it to carry coal from those places in its return journey to Narayanganj. The assessee however, suddenly suffered loss in respect of its use of the vessel and it was ultimately sold away sometime in 1953. The Incometax Officer duly computed the loss of operation of the vessel for the three assessment years 1952-53, 1953-54 and 1954-55. The computation of loss for 1954-55 also included loss under section 10(2)(vii) of the .Income tax Act (hereinafter called the Act). It appears from the statement of the case as made by the Tribunal that in each of the three years profits from the brokerage business were not sufficient for setting off all the losses sustained by the Company from the operation of the vessel When the assessment for the years 1955-56 and 1956-57 was taken up, the question of setting off all the losses incurred in earlier years against the income earned on account of brokerage business was raised. The company claimed that under the law it was entitled to carry forward and set off the earlier years' losses from the operations of the cargo vessel calculated by the Income tax Officer at Its. 2,64,264 against the aforesaid profits of the brokerage business computed for the years 1955-56 and 1956-57. The Income tax Officer took the view that the brokerage business and the freight earned business of M. V. Ludlow should by treated as two different businesses, as it is stated, he failed to obtain satisfactory answer from the assessee in this behalf. According to him, the boat carried jute and other cargo of different parties including the assessee who utilized the vessel for the jute broked by it. It is pointed out that even after the sale of the vessel Ludlow, the assessee carried on with this brokerage business. The Appellate Assistant Commissioner, on an appeal found that there was no jute brokerage business in the first three years of the assessee Company's existence or up to 31-12-50. It is further stated, "He, however, found that the activities of both the lines of ventures have been recorded in the same set of accounts though there were separate revenue accounts in the ledger. It was on the basis of the separate revenue accounts that separate profits and loss accounts were prepared." He also noticed that the vessel was purchased for jute baling business and not jute brokerage business and that its sale did not affect the brokerage business at all. He, therefore, upheld the decision of the Income tax Officer that the freight earning business by maintaining M. V. Ludlow and the jute brokerage business did not constitute what is called "same business", within the meaning of that expression occurring in section 24(2) of the Act. On a further appeal to the Tribunal, it also reached the same conclusion and dismissed the appeal of the assessee. The Tribunal was then asked to state the case and make a reference to this Court under section 66 (1) of the Act. Accordingly the statement of the case was made on 19-10-63 by the Tribunal referring the question mentioned at the outset. This matter came up before a Division Bench of this Court and it was found that in reaching the conclusion that the two ventures as indicated above did not constitute the same business, the Tribunal did not consider the affidavit affirmed on behalf of the assessee by Mr. R. H. Steward, an officer of the assessee company. It was, therefore, remanded for consideration of paragraphs 8 to 14 of the affidavit of Mr. Steward under section 66 (4) of the Act in stating the case. The Tribunal accordingly stated the case on 9-6-66 in compliance with the order under section 66(4) of the Act, after considering the affidavit in question, The Tribunal in mating the additional statement of the case says: " . . . so far as the relationship between the two concerns of the company viz. the broking business (we leave the baling business out of consideration as it had admittedly been given up long before the vessel in question actually made its first trip) and the freight earning business is concerned, we hold that the two were connected with one another so far as the five points discussed in our previous order are concerned and that these are not so interrelated to the extent that one could not be carried on if the other were stopped. As a matter of fact the broking business was there long before the purchase of the vessel in question and it is still being carried on even after the sale of the same and closure of the freight earning business. We are, therefore, unable to accept the claim made by Mr. Zafar that carrying of the coal was only for the purpose of furthering the main business. We have already shown that for a period extending more than 15 months before its sale, the vessel in question was used by the company for earning income simply as a cargo carrier." The Tribunal also took into consideration the concession made by Mr. Zafar who appeared before it, in the following terms:- "Then again Mr. Zafar has very candidly conceded that this is a matter of opinion only, because while the, company claims that the money obtained as freight on its return journey from Chittagong to Narayanganj went to reduce the overall expenditure of the company, the department might very well argue, that the company actually earned income by way of receiving freight." Mr. Hossain who appears before us on behalf of the assessee argues that maintenance of the vessel in question was merely a different activity of the "same business" and the Tribunal reached contrary conclusion on an improper appreciation of the materials placed before it. Learned Advocate also filed an additional paper book containing various charts showing as to how the vessel was used by the company and also the Annexures to the affidavit of Mr. R. H. Steward, which were not printed by the Tribunal. We must observe that the Tribunal printed the affidavit but omitted to print the annexures to the Affidavit. It ought to have been realised that without its annexures the affidavit becomes an incomplete document. Mr. Afzalul Haq who appears before us an behalf of the Revenue however, raises no objection whatsoever to our consideration of the additional paper book filed by the assessee in this case. Mr. Hussain also argues that the affidavit of Mr. Steward has not been properly considered by the Tribunal even on this occasion. He further argues that the two ventures, namely, the maintenance of the vessel as well as the jute brokerage constituted the same business within the meaning of section 24 of the Act. His contention is that the question referred to us should be answered in the negative. Mr. Afzalul Haque strenuously urges that we cannot go behind the finding of fact recorded by the Tribunal which noticed that the two businesses were separate and he also submits that on the facts found, the two businesses can never be brought within the ambit of the expression "same business" occurring in section 21(2) of the Act. Before we proceed to consider as to whether the two ventures constituted the "same business", it is necessary for us to examine if we can go behind a finding of fact recorded by the Tribunal. Mr. Hussain submits that this Court can certainly go behind a finding of fact which is not supported by the materials placed in the cafe, and he urges us to do so. In support of his contention he relies on the case of Messrs Govindram Bros. Ltd. v. Commissioner of Income tax, Central, Bombay (14 I T R 764). In that case a Division Bench of the Bombay High Court consisting of Sir Leonard Stone, C. J. and Chagla, J. had to consider the position in law regarding the findings of fact of Tribunal Chagla, J. dealing with this question as to whether it was a question of law or fact and whether a finding of fact can be upset by the High Court while considering the question referred to it under section 66 of the Act, observed: "Unfortunately the view that the Tribunal took was that the question whether the business is the same business within the meaning of section 24, subsection (2) of the Act was a question of law and not a question of fact and, therefore, the whole of the statement of facts is vitiated by this erroneous consideration. If the Tribunal had correctly approached the question and had considered this particular matter as a question of fact, then it would have given the necessary findings which we might have considered; but having looked upon it as a question of law, the Tribunal's statement of the case and judgment contain arguments and discussion of law rather than findings of fact or reference to evidence on which its conclusion are based. Therefore, the course open to us would have been to have sent the matter back to the Tribunal for determining the necessary questions of fact; but the matter has already been referred to the Tribunal once, and I do not think it is fair to the assessee that the matter should be referred back again. On the whole I am satisfied and I come to the same conclusion as the learned Chief Justice that as the record stands, there is no evidence on which the findings of fact of the Tribunal can be justified, namely, the business of cotton and the business of silver is not the same business within the meaning of section 24, subsection (2) of the Act." Mr. Hossain argues that the Bombay High Court, while considering a question referred to it under section 66 of the Act, scrutinised the evidence itself, recorded a finding of fact and gave its answer. He, therefore, argues that we may also do so. Learned Advocate omits to notice that the instant case is clearly distinguishable from the Bombay Case. In that case, a very wrong approach was made by the Tribunal, for, it thought that the consideration as to whether different activities undertaken by the assessee in that case constituted the same business was a question of law. It, therefore, did not at ail examine evidence treating the same as question of fact, and Chagla, J., clearly observed that there was no evidence on which the finding of fact recorded by the Tribunal could be justified. It will, therefore, be apparent that a finding of fact was recorded treating it as a question of law. That is not the case here. In this case Income tax Appellate Tribunal, Dacca, rightly treated it as a question of fact that there is some evidence in support of the finding of fact recorded by it. That evidence is that the vessel was purchased initially for the jute baling business of the assessee as will appear from Annexure B to the affidavit of Mr. Steward which is a letter dated 19-4-48 No. being 637-J. In that letter it is stated about the vessel: "So long as we are baling ourselves in Narayanganj we think the owning of L. C. I. would be helpful to us, if this vessel is capable of undertaking the journey direct to Chittagong. We also find difficulty at times in getting kutcha bales delivered to our press house at Narayanganj and this vessel could probably also be used to bring in those bales and we could make an adjustment with the seller to cover our expenses in the same manner that we do in Calcutta when we send our own launch and cargo boats to collect pucca bales at local press houses." This letter clearly indicates that the vessel was considered to be helpful for baling business. The Tribunal has also stated that the baling business was stopped before the vessel was put into service in Pakistan. The other feature noticed by the Tribunal is that the assessee carried the cargo of others who had no business connection with the assessee. It is true that the assessee also carried the cargo of some of those with whom it had brokerage business but that could not constitute the "same business" according to the Tribunal. The Tribunal also recorded a finding that freight was paid to the assessee for the jute it carried. We are, therefore, unable to agree with learned Advocate for the assessee that in this case he is entitled to ask us to reopen a question of fact in this instant case. The Bombay case is not at all applicable to the facts of this case. Next decision relied on by learned Advocate for the assessee is the case of K. S. S. Soundrapandia Nadar and Brothers v. Commissioner of Income tax, Madras (18 I T R 163). Satyanarayana Rao, J. observed: "The question whether the business is the same or not is no doubt essentially one of fact. If, however, there is no evidence to support the finding, or a proper inference from the proved facts was not drawn, they are questions of law." Mr. Hossain, therefore, argues that if it is a finding of fact, there has not been a proper inference in this case from the facts proved. This case also supports the view that it is a finding of fact. It, however, opens a little window for our inference on the ground that "a proper inference from the proved facts was not drawn." In that case it will be a question of lax. We shall, however, consider later as to whether or not there has beer, a proper inference from proved fats in the instant case. Mr. Hossain also relies on the decision in the case of Edwards (Inspector of Taxes) And Bairstow and another (3 W L R 410). in that case Viscount Simonds in his speech observed: "For, it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think fairly summarised by saying that the Court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained." Mr. Hossain should realise that it is observed that it is universally conceded that it is a pure finding of fact. Then of course it is mentioned that the Court may upset that finding if it finds that it has been recorded "without any evidence." We have already observed, for the reasons assigned above, that there is evidence in support of the finding of fact. It is, however, to be considered as to whether the Tribunal has taken "a viewer of the fact which could not reasonably be entertained." We have now to ascertain, on these principles, if tile two ventures constituted the same business. In support of the contention that the two activities already described at length constituted the same business within the meaning of section 24(2) of the Act, reliance has been placed on the case of S. N. A. AL. Chidambaram Chettiar v. Commissioner of Income tax, Madras (13 I T R 177). In that case it was held that the assessee's banking and money lending operations at Karaikudi and at Federated Malaya States constituted one and the same business and he was therefore entitled to set off the loss carried forward against the profits of the foreign business. In that ease it was observed: There is no dispute in regard to these facts which are entirely in accordance with the customary features of the usual Nattukottai Chetti business of banking and money lending. 'The business operations abroad are conducted by agents appointed for fixed Periods, usually three years, and the lending of money is left largely to their discretion. A separate set of accounts is maintained there but copies of the day book are periodically (usually once in a month) despatched to the headquarters to keep the proprietor informed of the state of the business. 'There is, besides, frequent correspondence between the agent and the proprietor, who asks for particulars and explanations and issues instructions regarding the conduct of the business. There is a flow of remittance both ways recording to the needs of the business and the final trading result is brought into the headquarters accounts at the end of the year. These facts present, in our view, the picture of a trading organisation inter connected as head office and branch, with financial inter dependence and unity of control." Mr. Afzalul Haq, learned Advocate for the Revenue, submits that banking operation has a connection with money lending which can be easily visualised and in fact money lending constitutes an integral part of modern banking system. He, therefore, rightly submits that this case has no application to the facts of the present case. Reliance has next been placed on the case of Rekhabchand Surogi and others v. Commissioner of Income tax, Bihar and Orissa (15 I T R 465). In that case it was held that the business of hardware, cement, rice, hessian and other commodities and in those commodities constituted the same business. Monohar Lall, J. delivering the judgment of the Court observed: "A merchant may buy and tell goods on taking delivery or may buy these goods with the intention of taking delivery and finding that he can make a profit before taking delivery, lie can sell his right to obtain delivery of these vary goods. The matter would have been different if the future contracts related to securities or if the future contracts would have been entered into by a registered firm who were not carrying on business as merchants." The learned Judge in that case reached the conclusion as he indicated above mainly on tree ground that the registered firm was carrying business as merchant on the items on which it was engaged in speculations as well. In the case of Commissioner of Income tax, West Bengal v. The International Industries Ltd., Calcutta (22 I T R 44), it was held that if the assessee carried on a single business involving a number of activities, arid dropped one of the active ins during a year and pursued other activities is the following year, it would be said that the assessee was carrying on the same business. In the case of Setabganj Sugar Mills Ltd. v. Commissioner of Income tax, Central Calcutta (41 I T R 272), Supreme Court of India, reiterated the principle said down by Rowlatt, J, in the case of Scales v. George Thompson & Co. Ltd., (13 Tax. Cas. 83, 89), referred to the above and observed. "The learned Judas also observed that what one bad to see was whether the different ventures were so interlaced and so dovetailed into each other as to make them into the same business. These principles have to be applied to the facts, before a legal inference can be drawn that a particular business is composed of separate business, and is not the same one". It was further observed : "No doubt, findings of facts are involved, because a variety of matters bearing on the unity of the business have to be investigated, such as unity of control and Management, conduct of the business through the same agency, the inter relation of the business, the employment of same capital, the maintenance of common books of account, employment of same staff to run the business, the nature of the different transactions, the possibility of one being closed without affecting the texture of the other and so forth. When, however, the true facts have been determined, the ultimate conclusion is a legal inference from proved facts, and it is one of mixed law and fact, on which depends the application of sec ion 24(2) of the Act". In that case the question was whether the businesses in gunnies and manufacture of sale of sugar undertaken by the assesses company constituted the same business term occurring in section 24(2) of the Act. The High Court of Calcutta refused to direct the Tribunal to make a reference to the Court under section 66(2) of the Act, for, it was of opinion that the matter was concluded by the finding of fact arrived by the Tribunal to the effect that the aforesaid ventures constituted separate businesses. The Supreme Court of India, however, directed the High Court to call for a statement of the case and to dispose it of in accordance with the principle laid down above. In the case of Lakshmi Industries (Private) Ltd. v. Commissioner of Income tax, Madras (41 I T R 645), it was held that the assessee was entitled to carry forward and set off losses of earlier years against the income of the relevant year, although the assessee company which owned a rice and an oil mill manufactured ground nut oil and cake and sold them, leased the entire mill during the relevant year at a rental of Rs. 3,000 per month. The conclusion reached was on the ground that from the very fact that the entire manufacturing plant had been leased out for a period, the assessee could not be said to have given up its business altogether and had no intention of resuming the business when favourable conditions offered themselves. The learned Judge observed : "The business of the assessee consisted in purchasing groundnut, expelling ob therefrom and selling oil and cake as the resultant products of the manufacture. The business accordingly included also the disposal of the products of the factory. There is clear evidence on record that during the relevant accounting year the assessee had a stock of a oil and ground nut, which tie sold. The sales were, no doubt, not of a large volume, but the fact remains that he did effect such sales. It would accordingly show that the assessee was still carrying on its business." Mr. Afzalul Haque points out that this case is distinguishable, for, in the instant case the vessel itself was sold out and the assessee claimed to carry forward and set off losses of earlier years after the sale of the vessel. Moreover, according to him, tae jute brokerage business had no connection whatsoever with the carriage of goods by a vessel. In the case of Prithvi Insurance Co. Ltd. v. Commissioner of Income tax, Madras (52 I T R 238), it was held that the life insurance business and the general insurance business constituted the same business within the meaning of section 24(2) of the Act. Mr. Afzalul Haque rightly contends that insurance was an activity which inter laced the activities directed towards life and general policies. In both these cases the principle enunciated in the case of Scales v. George Thompson & Co. Ltd., (928 L T 331), was referred to. In that case Rowlatt, J. observed : "I think this is a plain case. I am bound to say I do not think there is any question of law raised here, and, whether the question of law or question of fact, I certainly should not say the Commissioners were wrong. The Company carried on business of under writing. It also had a fleet of steamers. I cannot conceive two businesses that could be more easily separated than those two". The learned Judge held that the business of under writing and that of steamers were two separate businesses. The learned Judge laid down a principle in this behalf which has since been locus classicus when he observed : "I think the real question is, was there any inter connection, any inter lacing, any interdependence, any unity at all embracing those two businesses." Mr. Hossain and Mr. Afzalul Haque each in his turn has relied on this observation with equal emphasis and claimed that if the facts are scrutinised in accordance with this principle, it will support his case. From a reading of these decisions, it is clear that as to whether different activities carried on by the assessee constitute the "same business" within the meaning of that expression occurring in section 24(2) is essentially a question of fact, and the Court may however interfere if a palpably wrong view of the evidence is taken. In order to bring it within the purview of what has been called by Viscount Simonds : "a' view on facts which could not reasonably be entertained", our attention is invited to the findings of the Tribunal to the effect that a number of circumstances indicate that two activities constituted the same business. The findings are mainly as follows : "(1) Only one set of account was maintained for both the businesses viz. the broking business and the M. V. Ludlow operations. (2) Both the businesses were carried on from the same premises. (3) There was a common managerial staff. (4) Capital employed in the two businesses was the same. (5) Cash receipts went to the same fund and the financial arrangements and the banking accounts were common." Learned Advocate for the assessee, therefore, claims that these two activities constituted the "same business" as visualised under subsection (2) of section 24 of the Act. He invites our attention to the following comments of this Court while remanding the case by an order made on 3-5-65. "It will, therefore, appear that the assessee company fulfils many of the requirements for constituting the `same business'." It is, therefore, urged on behalf of the assessee that this Court practically held that the requirements for constitution of the "same business" have been fulfilled. We would only remind the learned Advocate that the expression "many of the requirements" does not mean all the requirements. We have yet to consider if all the requirements for constituting the "same business" have been fulfilled. It is urged by Mr. Hossain that the Tribunal would have found that all "the requirements" have been fulfilled if it would have considered the affidavit of Mr. Steward properly. It is further submitted that despite our directions that paragraphs 8 to 14, of the said affidavit should he considered, the Tribunal failed to consider paragraphs 9 and 13, dissatisfaction was expressed with consideration of other paragraphs as well. Pointed grievance was made about it in paragraph 9 of the said affidavit. Learned Advocate says that with regard to paragraph 5, the Tribunal stated. "As no corroborative evidence has been produced to show that when M. V. Ludlow arrived at Chittagong Port in December 1948, it also carried a cargo of coal for the baling plant, we are unable to express any opinion either way". It is, therefore, urged by Mr. Hossain that it is not necessary that there should be corroboration for each statement. The Tribunal ought to have stated as to whether or not the statement is accepted by it. This contention of learned Advocate does not take him very far. The onus of proving that the diverse activities constitute the "same business" within the meaning of section 24(2) lies on the assessee, and if in the absence of such corroboration the Tribunal finds itself unable to express any opinion either way, it really means that the Tribunal failed to accept the contention of the assessee. The corroboration mentioned by Mr. Hossain is at page 6 of the additional paper book. It is Annexure C to the affidavit of Mr. Steward. It is a letter addressed by the assesses to one Mr. Malcolm B. Stone, in which it is stated : "On arrival at Narayanganj on the 4th January, the coal and conveyor were unloaded by head carriers within a couple of days and a complete check of all spare parts was made. The food and Mr. Peter Stone's own stores were also unloaded, the former being sold to the European families in Narayanganj. (The whisky is being brought down to Chengail bottle by bottle whenever representatives from this office have cause to visit Dacca)." We are unable to appreciate how this paragraph indicates a connection between the jute brokerage and maintaining the ship for the same purpose. Hossain also relies on a letter written to the said Mr. Malcolm B. Stone, addressed by Ludlow Jute Co. Ltd.; and invites our attention to the following statement made therein "We shall of course also have to pay duty on the cargo of coal". This statement goes against the contention of Mr. Hossain for it is stated therein that it carries cargo of coal. Next corroboration relied on by Mr. Hossain is at page 34 of the additional paper book. This is also a letter to Mr. Malcolm B. Stone, addressed by the assessee on 28-12-48. This document also suffers from the comment we have male to the letter dated 23-12-48. The passage therein is in the following terms. : "In the meantime the vessel is proceeding to Narayanganj to discharge her cargo of coal and the spare parts." Suffice it to say that we do not see any connection between the jute brokerage business and the carrying of cargo of coal and spare parts as mentioned in this passage. Our attention was next called to a letter addressed to Mr. Gavin P. Bryars, by Mr. Peter L. Stone. In that letter it is stated: "The reason for this is first, coal is very easily obtainable in Charleston, and second, by sending out coal, you would be able to use this direct for our baling operations at Narayanganj. We also hope by using coal to avoid the necessity of calling it a cargo." Mr. Afzalul Haque promptly points out that this does not corroborate the assessee and it supports the contention of the Revenue that this boat was initially brought to help the baling operation at Narayanganj and brokerage. The baling operations were given up completely even before the arrival of the vessel. Next corroboration sought to be derived is a passage occurring in a letter dated 24 2 49, addressed to .Mr. Malcolm B. Stone by the assessee. This letter is at page 49 of the additional paper book and is in the following terms: "On arrival at Narayanganj on the 4th January, the coal and conveyor were unloaded by head carriers within a couple of days and a complete check of all spare parts was made." This passage does not lend any help to the assessee one way or other. In paragraph 13 of the said affidavit of Mr. Steward, it is stated "That after the cessation of the baling operations the vessel was used for carrying jute which the Company had broked and during the spare time the vessel also carried commodities on behalf of various concerns". Mr. Hossain submits that this statement has not been properly considered. We are unable to accept this contention. The Tribunal considered the salient features of the case and this paragraph has been clearly considered at page 3 of the paper book printed by the Tribunal after remand. The Tribunal says:- "Mr. Zafar has submitted charts in support of his statement that the vessel, made all told 17 trips out of which the first 11 trips were made for carrying jute broked by the company itself on payment of freight to it by the shippers and that it carried coal for others on the first 3 and the 11th trips. The Departmental Representative has pointed out that these charts show that vessel actually carried jute of other concerns during its last six trips during the period from 4th February 1952 to 16th May 1953 and carried food stuffs of the Civil Supplies Department during the return trips. In these circumstances, we are unable to accept the statement made in paragraph 13 that "during the spare time the vessel also carried commodities on behalf of various concerns". We have found as a matter of fact that the vessel stopped carrying jute broked by it after 27th October 1951 and that during the period commencing from 4th February 1952 right up to 16th May 1963, it was actually engaged in freight earning by carrying cargo for others." We are of opinion that the statement made by Mr. Steward in paragraph 13 has been fully considered. The chart referred to therein was also placed before us by Mr. Hossain and on a perusal thereof, we find no reason whatsoever to say that an improper view of the said chart was taken by the Tribunal. Mr. Huq, however, relies on paragraph 13 as already stated, in order to claim that it establishes that it was a separate business altogether and not an integral part of the jute broking business. This contention of Mr. Huq is founded on an observation made by a Division Bench of this Court in the case of Commissioner of Income tax, Dacca Zone, Dacca v. Amin Jute Baling Co. Ltd., Dacca (P L D 1969 Dacca 687). In that case it was observed: "If, however, the assessee undertakes, as suggested by learned Advocate for the Commissioner, insurance of goods of other persons the character of the agency in that case would definitely change and it would in that case be separate and distinct business." In that case the assessee insured its own jute as an agent of the Queensland Insurance Co. and this Court accepted the position that the step was in furtherance of its own business, for, it was only a different activity for reducing the expenditure incurred for its jute business and it was made clear in that passage that if the assessee would have insured the jute of others, it would be a separate business altogether. In the present case Mr. Afzalul Haque rightly points out, on the assertion made on behalf of the assessee itself, that it was carrying coal and foodstuff and jute of others, and, it was, therefore, a separate business. We are of opinion, that the case referred to above supports the contention of Mr. Huq and not of Mr. Hossain who also places reliance on that decision. Mr. Hossain urges that the vessel was not a public carrier and as such it was not a separate business, but whether a public carrier or not, it has, in fact, been used for carrying goods of others. That being so, it is clearly a separate business as was held in the case of Amin Jute Baling. On a consideration of the materials before us, we are of opinion, that the maintaining a vessel was a different venture altogether. No dovetailing or interlacing between maintaining a vessel and the jute brokerage business can be discerned. The Tribunal has, therefore, rightly held that these were two separate and distinct businesses. For the reasons stated above, the question referred to us is answered in the affirmative. In the facts and circumstances of the case we make no order as to costs. NURUL ISLAM, J. I agree. Question answered in the affirmative.