1963 PLP 40 (PTD)

This concludes my survey of all the relevant English and Indian authorities on the point. In the facts of the present case before us the signal consideration remains that the assessee company itself disclosed this disputed expenditure under the head "renovation" and clearly separated this expenditure from other expenses which he himself classed as "current repairs" and which the Income‑tax Officer allowed. The assessee's own opinion may not be conclusive if it is a question of law or legal inference but it becomes a matter of great importance when it is a question of fact how far the expenses listed as renovation could be claimed really as current repairs. If they are really renovation which could be separated from repairs, as the assessee himself did separate, then clearly this renovation expen diture is not the same thing as expenditure on repairs at all, far less "current repairs". Indeed, it is a finding of fact by the Income‑tax Officer that the primary purpose of the renovation in this case was to make the halls more attractive and comfort able to the public and therefore designed to increase the value and running capacity of the halls. The further finding of fact is that many of the bills represent expenses of capital improve ment nature as, for example, plumbing and sanitary works consisting of purchase of new shanks, basins, pipes and new electric installations. In fact, enquiries and investigations were conducted at the office of the contractors of the assessee and it was thereupon found that the bulk of the expenditure was of capital nature and upon an examination and investigation of the relevant bills, vouchers and enquiries from the contractors it was established that 90% of the total expenses under the head "renovation" were of capital nature. Therefore, only 10% of the renovation expenses was allowed as current repairs and as such 90% was disallowed. The words "current repairs" in section 10(2)(v) of the Income‑tax Act mean first that the expenditure must be on repairs and, secondly, that such repairs must be current repairs. Neither for the word "repair" nor for the expression "current" can there be a rigid or any hard and fast formula. To embark on a discussion as to when replacement or renewal is a repair or when replacement of a part can be 'said to be a kind of repair for the whole, or to attempt to define the quantity of expenditure that can come within the expression "current repairs" so that above which it will be "heavy" and below which it will be "petty", will be pursuing the controversial task of defining "current repairs" when the legislature has chosen to leave it undefined. The plain ordinary meaning of the expression "current repairs", without attempting to be doctrinaire and pedantic on the subject, should be the governing test in the facts, of each case. Only this much is certain that the expression must be construed as not only to mean "repairs" but "current repairs. .from this it must follow that repair in its ordinary connotation should be the test and only such repairs can be current repairs which have periodicity implicit in the word "current". It is not possible nor desirable to define what that period should be, whether it should be a month or half‑yearly or annual or still longer intervals. All that will depend on the nature of the repairs in the facts of each case. Certainly "current repairs" include repairs for ordinary wear and tear. Current repairs are necessary repairs and which are needed for the maintenance of the building, machinery, plant or furniture mentioned in section 10 (2) (v) of the Income‑tax Act. Without attempting to oversimplify matters, it is safe, in my view, to say that "current repairs" include maintenance repairs, that is, repairs necessary to maintain the building, plant, machinery or furniture in their present working condition. The Bombay view of the need for repairs is well emphasised. "Current repairs" in its ordinary acceptation mean not luxury repairs or repairs which wait upon the whims or choice of the assessee. The element of need therefore is implicit in the expres sion "current repairs". Here again, desire to draw a formula should be avoided, such as, how much the need should be, how pressing should that be and whether one can go to the length of saying that building or machinery or plant or furniture must he in such a state where it is impossible to use them before repairs can be allowed. On this point again a reasonable view should be taken of what an ordinarily common man in business would do. It is not necessary, in my view, that the business should be at a stand‑still if the repairs are not done, before an expenditure under "current repairs" can be permitted under section 10(2)(v) Equally, on the other hand, where there is no need whatever for the repair but expenditure is incurred by the assessee because he fancies them, then that expenditure will not be on "current repairs." The expression "current repairs" in section 10(2)(x) must therefore be judged on the facts of each case with regard to the specific items, the nature, quantity and volume of such items, the nature of business in which they are entailed, and the relevant, past, present and future contexts. If any mile post can be indicated in such a content it can only be that such current repairs must be those that are needed periodically and expenditure actually incurred on them either during the accounting or the assessment year . From that point of view accumulation of repairs will not ordinarily satisfy the test, because ex‑hypothesi such repairs can be postponed and, therefore, the need is not there. In this case a point was made that the expenses here, could not be incurred because no materials were obtainable due to the dearth and shortage caused by .the last world war. No evidence is on record to show that it in any way affected the business even to the slightest degree. Therefore, these renovation expenses could not now be claimed on ‑the facts of this case' as current repairs. What Will happen in a case where current repairs are needed but cannot be attended to for reasons beyond the control of the assessee by such events of international war, and then, when war is over after many 'years, large and heavy expenditure on the accumulated current repairs is incurred in the accounting year, is a question which cannot be answered as a general proposition of law. It will depend on many facts such as whether the lack of such repairs and the need for them were such as to affect business, whether the repairs were of a periodic nature, and other relevant Circumstances which I have discussed above and it will be unwise to categorise them as principles of law or rigid practical tests. In this view .of the interpretation of the words "current repairs" in section 10(2)(v) of the Income‑tax Act I am of opinion that the answer to the question asked should be in the negative and that the expenditure on renovation in the present case amounting to Rs. 2,17,182 cannot be deducted as current repairs on the facts under section 10(2)(v) of the Income‑tax Act. Having regard to the conflict of decisions there will be no order for costs in this reference. BOSE, J.‑The question debated before us in this reference under section 66(1) of the, Indian Income‑tax Act is whether a sum of Rs. 2,17,182 claimed as an expenditure on renovation is allowable as a deduction under section 10(2)(v) of the Indian Income‑tax Act. The assessee company is the owner of two cinema houses in Calcutta known as Lighthouse and New Empire and carries on business of exhibitors of cinematographic films in the said cinema houses. In the year of account ending on September 30, 1949, the assessse incurred expenses which it had termed as renovation expenses in respect of the said two cinema houses. The renovation expenses in respect of the Lighthouse amounted to Rs. 1,49,318 and in respect of the New Empire the expenses amounted to Rs. 91,

994. The details of the expenditure disclose that the renovation expenses were incurred in connection with the buildings, furniture and fittings in the said cinema houses. The case of the assessee is that during the war years the assessee company was unable to execute the necessary repairs to the machinery, buildings and furniture of the said cinema houses and so after several years the assessee company renovated the furniture and the buildings and incurred expenses amounting to Rs. 2,41,312 and claimed the sum as an allowable deduction. The Income‑tax Officer allowed only 10% of the claim as current repairs which amounted to Rs. 24,130 and disallowed expenses aggregating to Rs. 2,17,

182. It appears that the Income‑tax Officer also allowed the assessee's claim under a separate head of repairs amounting to Rs. 81,799 which was claimed in respect of the said two cinema houses for the said accounting period, apart from the said renovation expenses amounting to Rs. 2,41,

312. The 'Appellate Assistant Commissioner upheld the finding of the Income‑tax Officer that the expenses on renovation could not be held to be in the nature of repairs within the meaning of section 10(2)(v) of the Indian Income‑tax Act. Upon further appeal to the Appellate Tribunal the latter also found that the expenses under the head of renovation could not be regarded as current repairs which according to the Tribunal necessarily means repairs for the current business of the assessee and not repairs undertaken to renovate the deterioration of assets as a result of use for a number of years. The Tribunal held that the sum of Rs. 2,17,182 had been rightly disallowed, but inasmuch as in the opinion of the Tribunal a question of law arose out of. this order, it drew, up a statement of case and referred it to the High. Court under section 66 (1) of the Indian Income‑tax Act. Section 10(1) of the Indian Income‑tax Act is as follows : "The tax shall be payable by an assessee under the head `Profits and gains of business, profession or vocation' in respect of the profits or gains of any business, profession or vocation carried on by him." Section 10(2) is as follows : "Such profits or gains shall be computed after making the following allowances, namely:‑ (v) in respect of current repairs to such buildings, machinery, plant, or furniture, the amount paid, on account thereof." So the sole question for determination is what is the true connotation of the expressions "current" and "repairs" Mr. Sampath Iyengar appearing on behalf of the assessee has drawn our attention to several decisions of the Indian Courts and English Courts. The English Courts have held that the word "repair" is of indefinite connotation. It ordinarily means "to make good defects including renewal where that is necessary , but it does not include a total reconstruction. According to the New Oxford Dictionary the word "repair" means "to restore to good condition by renewal or replacement of decayed or damaged part" or "to renew or renovate something or part". The oft‑quoted passage which attempts to give a workable meaning to the expression "repair" is of Lord Justice Buckley in the case of Lurcott v. Wakely and Wheeler ((1911) 1 K B 905 (C A)). At page 923 the following observation occurs "`Repair' and `renew' are not words expressive' of a clear contrast. Repair always involves renewal ; renewal of a part ; of a subordinate part. A skylight leaks ; repair is effected by hacking out the putties, putting in new ones, arid renewing the paint. A roof falls out of repair'‑ the necessary work is to replace the decayed timbers by sound wood ; td substitute sound tiles or slates for those which are cracked, broken, or are Missing ; to make good the flashings, arid the light. Part of a garden wall tumbles down'; repair is effected by building; it up again with new mortar, and, y so, far as necessary, new bricks or stone. Repair is restoration by renewal of 'Replacement of subsidiary parts of a Whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety, not necessarily the whole but substantially the whole subject‑matter under discussion. I agree that if repair of the whole subject‑matter has become impossible a covenant to repair does not carry an obligation to renew or replaces. This exposition of the connotation of the word "repair", though not made by Lord Justice Buckley in connection with a case dealing with the Income‑tax Act, was approved by the Judicial Committee in the case of Rhodesia Railway Ltd. v. Income‑tax Collector, Bechuanaland ((1933) A C 368.) which was a case relating to income‑tax laws. In this case the railway company claimed deduction from its profits large sums spent by it for renewal of 74 miles of railway track out of 394 miles of the total length of the track. In upholding the claim of the assessee Lord Macmillan made the following observation (1933) 1 I T R 227, 232 (P C) : "The periodical renewal by sections of the rails and sleepers of a railway line as they wear out by use is in no sense a reconstruction of the whole railway and is an ordinary incident of railway administration. The fact that the wear although continuous is not and cannot be made good annually does not render the work of renewal when it comes to be effected necessarily a capital charge. The expenditure here in question was incurred in consequence of the tails having been worn out 'in earning the income of previous years on which tax had been paid without deduction in respect of such wear and represented the cost of restoring them to a state in which they could continue to earn income. It did not result in the creation of any new asset ; it was incurred to maintain the appellant's existing line in a state to earn revenue." The attention of this Court was also drawn by learned counsel for the respective parties to the cases of Samuel Jones & Co. (Devonvale) Ltd. v: Commissioners of Inland Revenue ((1951) 32 T C 513 (Sess.)) ; Phillips v. Whieldon Sanitary Potteries Ltd. ((1952) 33 T C 213 (K B)) ; .Mann Crossman and Paulin Ltd. v. Compton ((1947) 28 T C 410 (K B)); judgment of Atkinson, J. ; Jackson v. Lasker Home Furnishings Ltd. ((1957) 1 W L R 69) judgment of Danckwerts, J. and several other English cases. But it is not necessary to deal with them at any length. It may' be noted; however, that the English cases to which reference has been made in course of the hearing and not had to deal with the interpretation of the expression "current repairs" in any of these cases. The Supreme Court has pointed out; that, in dealing with cases expounding English‑income‑tax laws, it must be borne in mind that the scheme of legislation there is not the same as in India. It is true that a certain amount of assistance can with caution 'be taken from them but the problem under the Indian income‑tax laws must be resolved, in the ultimate analysis, with reference to Indian laws. Hence, the English decisions should be read with considerable caution. (Indian Molasses Co. (Private) Ltd' v. Commissioner of Income‑tax ((1959) 37 I T R 66 (S C)) per‑Hidayatullah, J. page 73 .and page 76 of the judgment). Now the Indian decisions on the point which have been brought to our notice speak with a divided voice. ;The Allahabad High Court, in the case of Ramkishan Sunderlal v. Commissioner of income‑tax ((1951) 19 I T R 324 (All.)) has held that the expression "current repairs" restricts its meaning to petty repairs usually carried out periodi cally and will not include repair or renewal costing a large sum of money which has to be spent on extensive repairs after long intervals. But this view has not been accepted by the Bombay, Patna and Punjab High Courts. In the case before the Punjab High Court, Commissioner of Income‑tax v. Ranjit Singh (1955 28 I T R 14 (Punj.).) a slim of Rs. 24,904 incurred by the assessee in resurfacing with concrete the approach roads to the Imperial Hotel during the relevant account period was claimed as a deduction under section 10(2)(v) of the Indian Income‑tax Act. Falshaw, J. (with whom Bhandari, C. J. concurred) observed as follows :‑ "The principle deducible from these decisions is that a sum, can be allowed as the cost of repairs and. can be held not to be a capital expenditure in spite of the fact that the expenditure in a particular year happens to be particularly heavy on account, of the fact that it is undertaken to remedy the effect of several years of wear and, tear or neglect, and also in spite of the fact that such expenditure may not be necessary for some time to come after the repairs have been effected. "It seems to me that these principles ought to be applied to the facts of the present case in which obviously the resur facing of the whole of the roadways of the hotel had become necessary on account of several years' wear and tear and neglect and I am inclined to agree with the view of the Appellate Tribunal that the fact that further repairs may `not be necessary for some time to come makes no difference." In the case of Commissioner of Income‑tax v. Durbhanga Sugar Co. Ltd. ((1956) 29 I T R 21 (Pat.)) a sum of Rs. 17,256 was spent on machinery repairs, namely, for replacing a fire box for locomotive, for replacing a cast iron headstock for rollers, and for purchase of a cast iron sublimer for generating sulphur gas and it was claimed that these replacements were necessary because :of fair wear and tear. Ramaswami, J. (Imam, J. concurring) held that a renewal may be a repair or reconstruction. The test is whether the act of replacement is one which is in substance replacement of defective parts or replacement of the entire machinery or sub stantial part of the entire machinery. It was further held that the expression "current repairs to machinery" which occurs in section 10 (2) (v) must be interpreted to mean repairs to machinery in the current accounting year and the word "current" is used in contradistinction to past or arrear repairs. The learned Judge dissented from the Allahabad view and pointed out that there is nothing in section 10 (2) (v) to suggest that the expenditure on repairs cannot be allowed as a proper deduction if the repairs are not petty, inasmuch as the section does not say anything about the magnitude of the expenditure. The deduction claimed by the assessee was, therefore, allowed under section 10(2)(v). In the Bombay case of New Shorrock Spinning & Manu facturing Co. Ltd. v. Commissioner of Income‑tax ((1956) 30 I T R 338 (Bom.)) the assessee company spent a sum of Rs. 30,557 for replacing certain parts in 646 looms out of 864 looms in certain textile mills. The particular part that was replaced was a device which helped in keeping a certain tension for the working of the looms. The new parts that had been used for replacement were lighter in weight than the old parts and conformed to the international labour standard and were superior to the old parts and these new parts had to be used because the, old parts‑were not available in the market and if an attempt had been made to prepare parts similar in kind or to acquire them, the cost would have been disproportionately high. It also appears that the old looms had been worked with these old parts for a period of 60 years as no need had arisen during all these years for replacing the old parts. The assessee claimed the amount spent as an allowable deduction under section 10(2)(v). Chagla, C. J. held that the expression "current repairs" means expenditure which is not for the purpose of the renewal or restoration but for the purpose of preserving or maintaining an. already existing asset, which does not bring a new asset into existence or does not give to the assessee any new or different advantage and they must be repairs which are attended to as and when the 'need for them arises. It was further held in this case that the question as to when a building, machinery, plant or furniture requires repairs and when the need arises must by decided by not any academic or theoretical test but by the test of commercial, expediency. The learned Chief Justice did not accept the view expressed by the Allahabad High Court as correct. The following observation of the learned Chief Justice may be set out hereunder (1956) 30 I T R 338, 344 (Bom.) : "But if the assessee, although the need has arisen, does not attend to that need and allows the repairs to get accumulated, then it could not be said that when he is expending money on these repairs he is expending them on current repairs. In the case of Bansilal Abirchand Spinning & Weaving Mill v. Commissioner of Income‑tax ((1957), 31 I T R 427 (Nag.)) which is a decision of the Nagpur High Court, the assessee, who owned a spinning mill, incurred in the year of account an expenditure of Rs. 9,330 on the replacement of .a cylinder in a sizing machine of the mill and spent a sum of Rs. 15,000 on renovation of the wooden flouring of the spinning department of the mill. It was held by V. R. Sen, J. and G. P. Bhutt, J. that the said amounts were revenue expenditure and could be allowed as expenditure incurred for current repairs , under section 10(2)(v): It was pointed out that the term "repair'' in the expression "current repair" occurring .in section 10(2)(v) is to be understood in contradis tinction to reconstruction and when the existing asset is only maintained and preserved and no new asset is created by replacement or improvement, the case is one of repairs and not reconstruction. The cases decided by the Punjab, Patna and Bombay High Courts were followed in this case. Our attention was also drawn to a recent case of the Punjab High Court. Commissioner of Income‑tax v. Sheikhupura Transport Co. Ltd. ((1961) 41 I T R 336 (Punj.)) which held that a comparatively small expenditure incurred it renewing the bodies of pertain, lorries fell within the definition of "current repairs" and was allowable as a deduction under section 10(2)(v). It will thus appear that the views of the different High Courts with regard to the connotation of the expression "current repairs" are not at alt uniform and they are not easy to reconcile. It appears to me, however, that the idea which is latent in the expression "current repairs" is the characteristic of re-currency and the expression has, reference to repairs effected with the object of maintaining and preserving the existing asset and restoring them to their original condition when they have deteriorated as a result of wear and tear. But when the expenditure is incurred to bring into existence a new asset or an advantage of an enduring nature, it cannot be regarded as an expenditure incurred in current repairs. The word "asset" is an. elusive expression and it is difficult to draw 'a line where an existing asset becomes a new asset as a result of expenditure incurred for its restoration. The test, I think, depends on the degree of improvement brought about and the change effected in the identity of the existing asset as a result of the expenditure incurred. Again to make the repair a "current" repair the need for such repair must have arisen. In the case of Gray (Public Trustee) v. Woodhouse ((1927) 1 Ch. 242 at 250) in construing subsection (2) (b) of section 102 of the Settled Land Act, 1925, which contained inter alia the following expression "to erect, pull down, rebuild, and repair houses, and other building's and erections", Clauson, J. observed; "It is suggested that some part of the repairs were of a character that excluded them from `repairs' within the meaning of subsection (2)(b). It is suggested that a line ought to be drawn between current repairs and repairs of a more substantial nature or repairs occasioned by the fact that for some years the property had not been properly or sufficiently repaired from year to year. But I do not think that I am justified in cutting down the expression `repairs' in subsection (2)(b) of section

102. I have looked at the specification. There are only one or two stall items that it might be suggested are on a rather different footing to the other items. In my view they all come within the term `repairs' in the broad sense in which the term is used in subsection (2) (b), and I do not think that having regard to the fact that the legislature has put (as in my opinion it has) `expense of repairs' and `expense of rebuilding' on the same footing, it was intended by the legislature to give a restricted meaning to the word `repairs'. I think that the intention of the Act is to save the trustee from being too meticulous in construing the character of the repairs, whether they are normal current repairs or whether they go beyond that." In the case before us the necessity for executing the repairs arose admittedly during the war period, but the repairs could not be effected for dearth of materials. The further question that arises is whether as a result of the repairs or renovation the existing assets in respect of the said two cinema houses have been replaced by new assets in their entirety and the identity of the old assets is gone. This is a question of fact. The finding of the Income‑tax Officer is inter alia as follows : The primary purpose of the renovations was to make the halls more attractive and comfortable to the public and is therefore designed to increase the value and earning capacity of the halls. Accordingly I called for further details and accounts together with bills, vouchers and conducted outdoor enquiries, the results of which are summarised below : New Empire Rs. Renovation ... ... 91,995 Repairs ... ... 32,177 In order to ascertain the true nature of the expenses, I examined bills and vouchers but in most cases the bills were drafted in such a way that the actual character of the expenses could not be rightly ascertained. Many of the bills suggest expenses of a capital nature, as, for example, plumbing and' sanitary works consisting of purchase of shanks, basins, new pipes and new electrical installation etc. Carpenters were paid on daily wage basis but the actual work done has not been properly described in most of the bills. Some of the bills again referred to replacement of existing furniture. Bills relating to building materials referred to purchase of shanks, line etc. There were other bills relating to purchase of collapsible gates, aluminium disc etc. Enquiry was accordingly made at the office of the contractor and it was found that the bulk of the expenditure was of a capital nature. Thus taking the overall view of the nature of work done it can be said that 90% of the total expenses were of a capital nature." Then dealing with the Lighthouse Cinema, the Income‑fax Officer considers the following heads : Rs. Renovation ... ... 1,49,318 Current repairs... ... 49,622 and observes "from the details furnished as well as from vouchers produced it appears that the bulk .of the expenses is of a capital nature and the remarks made in connection with New Empire equally apply in this case. Accordingly 90% of the expenses are capitalised." It is thus clear that the Income‑tax Officer went into the evidence and from the materials available to him recorded the conclusions which I have set out above. The Appellate Assistant Commissioner also scrutinised the evidence and came to the following conclusion and made inter alia the following observations : "The bills and the vouchers in the renovation expenses are produced before me also. I find that the Income‑tax Officer is right in saying that the expenses on renovation could not be held to be in the nature of repair within the meaning of section 10 (2) (v) of the Income‑tax Act. For current repairs to building and plant and machinery the assessee had also debited a considerable amount in the year in question in addi tion to the debit in renovation." The Income‑tax Appellate Tribunal upheld the decision of the department and observed : "In the present case the assessee company was unable to execute substantial repairs, as was stated, for dearth of materials during the war. As a result, after several years the assessee renovated the furniture and building and rightly wrote off the amount under the head `renovation'. In our opinion the circumstances are such that the expenses under the head of renovation could not be called current repairs which necessarily mean repairs for the current business of the assessee and not repairs undertaken to renovote the deterioration of assets as a result of use for a number of years. Therefore, we concur with the department that the amount could not be allowed." So there are these concurrent findings of, fact based upon evidence in this case. The assessee company has in its own books of account drawn a distinction between renovation expenses and repair expenses. It is true that the mere use of a particular nomenclature, such as "renovation" in the present case, is not conclusive on the point and the treatment of the transaction in the assessee's business accounts is no more than a pointer. But it is clear that the department has taken pains to go into details of the various items and, after carefully examining the materials before them, has come to the conclusion that the entire expenditure incurred under the head of renovation could not be regarded as expenditure incurred on current repairs within the meaning of section 10 (2) (v) of the Indian income‑tax Act. It cannot be said that the findings of the department with which the Appellate Tribunal had agreed are not supported by any evidence. In the circumstances, it will not be proper for this Court in a reference under section 66(1) of the Indian Income- tax Act to upset these concurrent findings of fact and to come to a different conclusion as to the nature of the work done and the expenses incurred. There is thus no escape from the conclusion that the sum of Rs. 2,17,182 has been rightly dis allowed by the income‑tax department and the Appellate Tribunal. It was argued that even if it is found that the deduction claimed is not allowable under section 10 (2) (v) the claim should be admitted under section 10 (2) (xv). But this question does not appear to have been raised before the Appellate Tribunal. The only question raised before the Tribunal was whether the renovation was current repair and any part of it could be allowed as such, and the Tribunal concurred with the department that the claim could not be allowed. So the claim of the assessee under section 10 (2) (xv) cannot be entertained by us at this stage. It was pointed out that the question as framed by the Tribunal, in its statement of case, is of a general nature and therefore it is open to the assessee to raise the question whether the claim is allowable under section 10(2)(v). The question framed is as follows : "Whether, on the facts and circumstances of this case, the sum of Rs. 2,17,182 claimed as an expenditure on renovation was allowable as a deduction in computing the business income of the assessee company ?" But the scope and implications of the question have to be ascertained by reference to the context and upon perusal of the entire statement of case and the order of the Tribunal which is made a part of the statement of the case. It is clear that the question is limited to the consideration of the aspect whether the renovation was "current repair" or not. It was also argued that this Court is not entitled to look into the orders of the Appellate Assistant Commissioner and the Income‑tax Officer and the materials or findings contained therein, inasmuch as these orders are not parts of the statement of the case. But the Rules of the High Court require that these orders and records of certain proceedings before the income‑tax department have to be printed in the paper book in a reference under section 66 of the Indian Income‑tax Act. Moreover in the case of In re Gregory ((1937) 5 I T R 12 (Cal.)) Panckridge, J. has pointed out that the point of law to be decided by a High Court in an income‑tax reference is not a hypothetical point but specific points raised by the facts of a particular case and the documents and proceedings annexed to the statements of the case are annexed for the consideration of the High Court which is entitled to look into them even if there be no specific reference to them in the body of the Commissioner's statement. (See also New Jehangir Vakil Mills Ltd. v. Commissioner of Income‑tax ((1959) 37 I T R 11 (S C)), where it has been pointed out that it is facts in the order of the Tribunal or in the record before it which should form the foundation for the raising of any question of law). It was also argued that we should call upon the Tribunal to submit a supplementary statement of case stating facts which would enable the Court to determine the question whether the claim is admissible under section 10(2)(xv). It is, however, well‑settled that it is not open to the High Court in the exercise of its jurisdiction under section 66(4) to raise a new question and to require the Tribunal to entertain a fresh line of enquiry, hear the parties in regard to the same and record fresh findings of fact which would enable the assessee or the Commissioner to advance a case which had not been made before the income‑tax authorities or the Tribunal. The Supreme Court has further pointed out in the case Kusumben D. Mahadevia v. Commissioner of Income -tax ((1960) 39 I T R 540 (S C)) that section 66 of the Indian Income‑tax Act does not confer on the High Court jurisdiction to decide a different question of law not arising out of the order of the Appellate Tribunal. "It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered ((1960) 39 I T R 540, 544 (S C))." In the circumstances it is not permissible to call upon the Tribunal to submit a supplementary statement which will have the effect of opening a fresh line of enquiry and of compelling the Tribunal to decide a question which was not raised before it previously. I agree that the question referred should be answered in the negative and against the assessee and there should be no order for costs. Question answered in the negative.