Judgment

S. K. DAS, J. : This is an appeal by the assessee with leave of the High Court of Hyderabad granted under S. 66A (2) of the Indian Income-tax Act, 1922.

2. The short facts are these. The appellant is a private limited company carrying on the business, inter alia, of sale of Shahabad stones (flag stones) which had to be extracted from quarries, dressed and then sold. For the purpose of its business, the appellant took on contract the right to excavate stones from certain quarries in six villages in Tandur taluk for a period of twelve years under a Quolnama dated 9th Mehr, 1343 F from the then jagirdar of the taluk, named Nawab Mehdi Jung Bahadur. The contract provided that the jagirdar should be paid annually a sum of Rs. 28,000 as consideration for extracting the stones till the end of the contract period, as per a plan prepared, within the six villages specified therein. The appellant had no right or interest in the land; nor did he have any other interest in the quarries apart from excavating stones therefrom. The contract specifically provided that the appellant, called the contractor, had no right to manufacture cement from the stones; he had only the right to excavate stones from the quarries till the end of the contract period. I may here quote some of the relevant provisions of the Quolnama as to how the annual consideration of Rs. 28,000 was to be paid. It said :

"1. The period of contract for excavating stones from the quarries of the villages noted above is for 12 years from 1st Ardibehisht 1346 F. to the end of the Farwardi, 1358 Fasli and the contractor will be give possession from 1st Ardibehist 1346 Fasli.

2. The annual contract amount would be Rs. 28,000.

3. For the surety of the contract the sum of Rs. 96,000 O. S. has been received and deposited in the treasury of the Jagir towards the advance and earnest money and the security, a receipt for the same has been issued separately.

4. The remaining annual balance sum of Rs. 20,000 may be deposited in the Jagir Treasury by instalment every month of Rs. 1,667-10-8; if there be any default in paying the instalment regularly, interest at the rate of one rupee per cent per mensem will be charged to the Contractor till full payment".

3. There was another lease or contract taken from Government for a period of five years for which the appellant was required to pay Rs. 9,000 per year in monthly instalments of Rs. 750. That was also in respect of stone quarries. The terms of the said contract with Government have not been printed in the paper book, presumably because they were similar in nature to those of the Quolnama referred to above. The Income-tax Appellate Tribunal found, and there is no dispute as to this, that under the aforesaid two contracts the appellant had merely the right to extract Shahabad stones. The Tribunal said :

"Flag stones of required thickness are found in leaves in those mines or quarries. Before one gets these flag stones of the required thickness, one has also to extract flag stones of greater thickness. The assessee sells these flag stones both of the usual thickness and thickness greater than usual one, after working on them, if necessary."

There was no finding as to how deep the quarrying had to be done to extract the stones of required thickness.

According to the appellant s books of account, it paid each year of account Rs. 37,000 as lease or contract money to extract the stones under the two contracts and it claimed an allowance in respect thereof under S. 12 (2) (xv) of the Hyderabd Income-tax Act, corresponding to S. 10 (2) (xv) of the Indian Income-tax Act, 1922. The Tribunal stated that the Income-tax Officer was under some misapprehension or error while examining, the appellant s books of account, and held for the assessment year 1357F that the expenditure of Rs. 27,054 as lease or contract money was capital expenditure in respect of which the appellant was not entitled to claim any allowance under the relevant provision of the Hyderab