S.S.Sandhawalia, J.

1. In this set of connected and consolidated Income-tax References Nos. 240, 241, 249, 250 and 251 of 1976, the larger question that looms for adjudication may be formulated in the following terms :

"Whether the proprietor of a colliery abdicating all control of its business in favour of a managing contractor by a lease for a fixed term of ten years with an option to renew by the lessor on the terms of an annual minimum guaranteed amount of Rs. 18,000 and royalty at differential rates on the quantum of coal raised and its manufacture, can still be said to be carrying on the business of the said colliery within the meaning of Sec.28(i) of the Income-tax Act, 1961 ?"

2. Pointedly at issue is the correctness of the earlier view of the Division Bench in CIT V/s. S.K. Sahana & Sons Ltd. [1976] 102 ITR 437 (Pat) answering the identical question in the affirmative.

3. Virtually identical facts may be noticed from Tax Cases Nos. 249 to 251 of 1976. S. K. Sahana & Sons Ltd., the assessee, is a limited company which, inter alia, derives income from a mining establishment known as New Bansjora Colliery. By an agreement dated April 22, 1959, the assessee-company leased out the colliery to Khas Ganeshpur Coal Mines (P.) Ltd. by appointing the latter as a managing contractor for a period of ten years with an option of renewal for a further period of three years. The terms of the agreement, inter alia, were for the payment of the minimum guaranteed amount of Rs. 18,000 per year to the assessee and further to pay a guaranteed profit of Rs. 1.50 per ton of coal raised from the colliery and an additional payment of Rs. 2.25 per ton for every ton of soft coke manufactured and Rs. 3 per ton for hard coke manufactured by the managing contractor.

4. For the assessment years 1967-68 to 1969-70, it was contended on behalf of the assessee before the Income-tax Officer that the minimum guaranteed amount of income and the royalty received on every ton of coal raised by the managing contractor should be assessed as an income from business. This contention was, however, rejected by the Income-tax Officer (vide annexures A, A-1 and A-2), who referred to his orders for the previous assessment years and for the reason given therein held that the guaranteed commission and the royalty on coal was assessable under the head "Income from other sources". The Income-tax Officer referrred to the fact that though the Tribunal had taken a different view, the matter was still pending before the High Court in reference.

5. The matter was carried before the Appellate Assistant Commissioner in appeal, who, however, found that the colliery had been leased out as a running concern to the managing contractor which worked it under a power of attorney. He found that the running concern as such had been handed over for management in the name and on behalf of the assessee. For these reasons, he took the contrary view that the income under the contract of managing contractorship was income from business and not from other sources. The consolidated order of the Appellate Assistant Commissioner is annexure "B" to the statement of the case.

6. When the matter came up before the Tribunal, all the three years appeals were disposed of by a common order. The Tribunal found that the facts in these cases were the same, as had been found in the earlier assessment years 1963-64 and 1964-65 in which it had earlier held that the income derived by the assessee was income from business and not income from other sources. Therefore, the Tribunal followed its earlier orders and held that the income derived by the assessee was income from business (vide annexure "C"). Against the aforesaid orders, the Commissioner moved reference applications under Sec.256(1) of the Income-tax Act, 1961 ("the Act"), for referring the question of law arising in the case to the High Court. Therein, on behalf of the assessee, firm reliance was placed on the fact that in respect of the asses