M. C. DESAI C.J. - This is a statement of case submitted under section 66(1) at the assessees instance by the Income-tax Appellate Tribunal requiring this court to answer the following question :
'Whether on the facts and in the circumstances and on a true interpretation of the provisions of caluse (ii) of sub-section 10 of the Income-tax Act, the assessee was entitled to deduction for the expenses of a capital nature included in the cost of repairs to the premises of which he was tenant ?'
The statement shows that the assessee has taken a godown on rent for carrying on its business on condition that it will maintain and repair it. During the previous year relevant to the assessment year it cemented the floor of the godown, replaced its roof by corrugated sheets and replaced the electric wiring. It claimed the right to deduct the amounts spent on these three items when computing its income from the business. Its claim has been disallowed by the Tribunal on the ground that the expenditure was of assets of an enduring nature. Then at its instance it submitted the statement of the case.
The deduction claimed by the assessee was under section 10(2)(ii) of the Income-tax Act. The assessee is admittedly a tenant of the godown and has admittedly undertaken to bear the costs of its repairs. It is also not in dispute that it has spent the amounts claimed by it on the three items. It would be entitled to deduct the amount under section 10(2)(ii) if carrying out the works amounted to repairing the godown. The question referred by the Tribunal to this court should have been whether carrying out the three items of works amounted to repairing the godown and not the question formulated by the Tribunal. The latter does not arise out of statement of the case and this is conceded by Sri S. N. Varma and also by Sri. Gulati.
It was suggested by Sri. S. N. Varma that this court should redraft the question but we are unable to redraft the question but we are unable to redraft it because we do not know that the question formulated by the Tribunal was not the question that the assessee itself had wanted to be referred to this court. This court in exercise of its power of redrafting a question cannot substitute a question which was not sought to be referred in the application made under section 66(1); it cannot answer a question which was not mentioned in the application under section 66(1) itself. The application made by the assessee under section 66(1) is not placed before us and we do not know what questions it wanted to be referred to this court and whether the questions actually referred by the Tribunal was not one of them. If it was, we have no jurisdiction to amend it by substituting in its place a different question.
In the result we find that the question formulated by the Tribunal does not arise out of the statement of the case and return the reference unanswered. In the circumstances of the case we direct that the assessee shall pay to the Commissioner of Income-tax his costs of this reference, which we assess at Rs. 100. Counsels fee is assessed at Rs. 200.