Judgment

DAS, J. : The is an appeal by special leave from the judgment of the Patna High Court delivered on a Reference made by the Income-tax Appellate Tribunal under S. 68(1), Income Tax Act.

2. The Tribunal referred the following two questions for the opinion of the High Court :

(1) On the facts and in the circumstances of this case is the surplus of Rs. 13,05,144/- arising out of the sale of the plant and machinery of the sugar factory chargeable under S. 10(2) (vii)?

(2) Was the profit of Rs. 15,882/- on the sale of stores of the factory taxable under the Income-tax Act in the circumstances of this case?

The Reference came up for hearing before a Division Bench consisting of Shearer and Sarjoo Prasad, JJ., and after a prolonged hearing the learned Judges delivered separate judgments on 27-2-1951 giving divergent answers to the questions, Shearer, J. answering both the question in the negative and Sarjoo Prasad, J., giving an affirmative answer to both of them.

The matter thereupon was placed before a third Judge, Ramaswami, J., who after a fresh hearing delivered his judgment on 16-5-1951 agreeing with Sarjoo, Prasad, J, on the first question and with Shearer, J., on the second ques