SARJOO PROSAD, C.J.—This is a reference under Sec. 66 (1) of the Indian Income Tax Act (Act XI of 1922 as amended) submitted by the Income Tax Appellate Tribunal (Delhi Bench). The assessee, Mewar Industries Ltd. is a public limited concern (in liquidation), having its registered office at Udaipur. The assessment years under consideration are 1950-51 and 1951-52, the previous years being the financial years 1949-50 and 1950-51. It is admitted that the previous year ended on 31st March, 1950 and 31st March, 1951 respectively. The main point for consideration in this reference is whether certain sums of money admittedly received by the assessee during the financial years aforesaid should be included in the income of the assessee for purposes of assessment. 2. We feel constrained to observe and we do so with the utmost deference to the members of the Tribunal that much of the confusion in this case appears to have arisen because of the manner in which these cases were disposed of on appeal by the Tribunal in a brief and somewhat summary order. The Tribunal was simply content to observe: "We agree with the Appellate Asst. Comms. that the commission accrued, and became payable, to the assessee in the two relevant account periods indicated by the Appellate Assistant Commissioner and did not accrue or become payable on 31.3.1949 and 31.3.1950 respectively, as contended for by him. The reasons which the Appellate Assistant Commissioner has given in this behalf appear to us sound." The confusion was worse confounded when in the statement of case submitted by the Tribunal to this Court it further opined: "Since the amounts under review were being included on accrual basis the occasion for finding whether or not such amounts could be included on receipt basis did not arise." 3. A brief narration of the relevant facts is necessary in order to appreciate the points involved. Under a deed of lease dated 15th June, 1936, executed by the assessee company of the first part and Rai Bahadur Bansidhar Dhandania and Rai Bahadur Lok Nath Prasad Dhandania of the second part, the assessee company let out all its properties and assets as mentioned in the; agreement to the second party to enable them to carry on the business of manufacture and sale of sugar and molasses etc. in the then Mewar State. in the then Mewar State. In consideration thereof the second party agreed to pay to the assessee 10% of the net profits of the business. Under the terms of the agreement the lessees were also permitted to sub let or transfer their rights to any other person, subject to the payment of the profits aforesaid to the lessor. It appears that in 1940 the interest in the lease were acquired by the Mewar Sugar Ltd. which stepped into the shoes of the lessees thenceforward, and eventually in September, 1949 the Mewar Sugar Mills Ltd. purchased also the entire assets and liabilities of the assessee company. The assessee company then went into voluntary liquidation on 18th January, 1950 and a liquidator was appointed to take charge of its assets. It is common ground that in pursuance of the terms contained in the lease deed, the liquidator received on behalf of the assessee a sum of Rs. 1,08,205/- on 21.2.50 and Rs. 6,243/- on 4.4.50. It appears that the accounting periods of the lessee company also ended on 31st March every year and in view of the agreement in the lease-deed the assessee company became entitled to the above sums on account of 10% of the profits of the lessee company, earned during the accounting periods ending on 31st March, 1949 and 31st March, 1950 respectively. They were accordingly credited in the books of the lessee in favour of the assessee and interest commenced to run on those amounts with effect from the 1st of April following. It is also useful to state here that the assessee, before it went into liquidation, had been closing its accounts on the 30th of June each year, yet the above amounts are not mentioned in its books of accounts as having accrued or become payable to the assessee during the relevant accounting periods ending on June 1949 and 1950. 4. The assessee contended that since the sum of Rs. 1,08,205/- accrued or arose to the assessee during the previous year ending on 31st March, 1949 (relevant to assessment for 1949-50), it was not liable to be included in the total income of the assessment year, 1950-51. In regard to the sum of Rs. 4. The assessee contended that since the sum of Rs. 1,08,205/- accrued or arose to the assessee during the previous year ending on 31st March, 1949 (relevant to assessment for 1949-50), it was not liable to be included in the total income of the assessment year, 1950-51. In regard to the sum of Rs. 6,143/- the assessees stand was that although the amount had accrued and become payable to the assessee during the previous year 1950-51, yet even that sum could not be included in its taxable income on the ground that the assessee company had discontinued its business on the 31st March, 1949, that is before the appointed day, 1.4.50, when the Indian Income Tax Act was extended to Part B States which included the territory of Mewar. 5. The Income Tax Officer did not entertain the above contentions of the assessee. He held that the assessees system of accounting was not mercantile but on the "cash basis", since it credited the amounts from the lessee company, not on the date when it became due, but on the date when it was actually realised or near about the date when the amount so payable to be passed and allowed to be paid by the Directors of the lessee company. The above fact also appears to have been admitted before the said officer by the representative of the assessee in a recorded statement dated 17.4.54, maintained on the file. Therefore, in view of the above sums having been actually received by the liquidator of the assessee company during the relevant financial year, the Income Tax Officer held that they Were assessable income. On appeal, the Assistant Commissioner struck a different note. He did not touch the question whether the system of accounting followed by the assessee was mercantile or cash as held by the Income Tax Officer. He took the view that the amounts received from Mewar Sugar Mills Ltd. by the assessee became payable to the assessee only after the accounts of the Sugar Mills aforesaid had been closed and audited and not earlier; and since this could only happen after the 31st March; the end at each accounting year, the amounts in question accrued or became payable to the assessee during the relevant financial years and were as such liable to assessment. This view of the Assistant Commissioner was apparently based on the recitals in clause 3 of the lease deed, wherein it is provided that 10% of the net profit of the business was payable annually to the assessee, "on the closing of the accounts and audit thereof." The deed even recited that the assessee had the right of an independent audit, if it so desired. This view also prevailed with the Appellate Tribunal, who, as we said, in a very brief order merely endorsed the reasons given by the Assistant Commissioner in support of the order of assessment. The Tribunal was, however, persuaded by the assessee, to refer the following question of law for our consideration: "Whether on the facts and in the circumstances of this case the amounts of Rs. 1,08,205/and Rs. 6,143/- accrued or arose to the assessee in the previous years relevant for the assessment years 1950-51 and 1951-52 respectively?" The various orders of the departmental officers as also the lease deed form a part of the statement of the case. 6. The Tribunal had given no finding on the method of accounting followed by the assessee. On the contrary in the statement of case submitted to us, it had opined that since the amounts in review were included on the "accrual basis", the occasion for any finding whether they could be included on the receipt basis did not arise. When the matter came to be heard by us at an earlier stage, we pointed out that the method of accounting affected the computation of income and consequent taxation. In a case like the one before us, it had an important bearing, which would influence our answer to the question referred. The method of accounting employed by the assessee was a question of fact and we were unable to agree with the opinion of the Tribunal that the question did not arise. Indeed the Income Tax Officer had decided the case on the "receipt basis" namely that the system of accounting followed by the assessee was on the cash basis and since the amounts had been actually received during the relevant financial year, they were liable to be included in the taxable income of the assessee. Accordingly by our order dated 13.9.60 we called for a supplementary statement of the case from the appellate Tribunal. Accordingly by our order dated 13.9.60 we called for a supplementary statement of the case from the appellate Tribunal. A supplementary statement was submitted by the Tribunal on 24th November, 1960 and copies of the relevant entries in the books of accounts of the assessee and Mewar Sugar Mills Ltd. the lessee company form annexures to the statement. The sum and substance of the statement is that in the opinion of the Tribunal the assessees system of accounting was a "hybrid system, it being neither mercantile nor cash". We have, therefore, now to deal with the case on the above statements. We need hardly mention that after the submission of the supplementary statement, the case was heard afresh in the presence of the learned counsel for the parties and orders were reserved. 7. Mr. Bhargava, the learned counsel for the assessee, has submitted that the Assistant Commissioner of Income-tax or for the matter of that the Appellate Tribunal fell into an obvious error in holding that the amounts in question accrued or arose as income only after the accounts were passed or audited. On the findings the accounting periods of the lessee company ended on the 31st March every year and the above profits were determined as payable to the assessee for the accounting years ending on 31st March, 1949 and 31st March, 1950. The amounts were accordingly debited in the books of the lessee company and interest became payable to the assessee on the respective amounts with effect from the above dates. As such, the learned counsel argues, the income accrued or arose to the assessee at the close of the accounts of each financial year and not when the accounts were passed and audited. He also sought to make a distinction between actual accrual or arising of the income and the payment thereof, and pointed out that the mere postponement of payment on any account did not in the eye of law affect the accrual of the income itself. He has cited a number of decisions in support of his contentions and also to elucidate the meaning of the expression "accrual" or "arising" of income as used in the Income-tax law. These submissions undoubtedly carry a good deal of force. He has cited a number of decisions in support of his contentions and also to elucidate the meaning of the expression "accrual" or "arising" of income as used in the Income-tax law. These submissions undoubtedly carry a good deal of force. The profits and loss of a company are determined at the close of the accounts of each financial or accounting period and, therefore, the ten percent of the profits which under the terms of the lease deed was payable to the assessee, accrued on the date the accounts were closed and the assessee became entitled to the same as its income with effect from those dates. For any delay in payment of the same it also became entitled to interest. The auditing of the accounts or the passing of the order of payment to the assessee by the Board of Directors were merely incidental factors which did not affect the income already accrued at the close of the accounting period. As a result of audit the profits might be found to be higher or lower than what the accounts showed, but even so the profits determined on audit would relate back to the close of the accounts at the end of the financial year concerned and not to the date of the audit. Process of auditing may quite possibly be delayed due to avoidable or unavoidable reasons but that can not legitimately affect the accrual of the income itself. Similarly, the Board of Directors while passing the accounts would have no right to withhold payment of the ten percent of the profits to which the assessee was entitled under the terms of the agreement and if they procrastinated or delayed payment the assessee would be entitled to recovery of interest on the amounts due, as from the dates the accounts were closed, according to the system of accounting followed by the lessee company, which in this case was the end of March each year. This would be the obvious result if a suit for recovery of the amount due had been instituted by the assessee; and we see no reason to hold why a different criterion should be adopted for purposes no assessment. It is unnecessary for us to discuss all the various cases cited at the Bar, except the decision of the Supreme Court in Cotton Agents Ltd., Bombay Vs. It is unnecessary for us to discuss all the various cases cited at the Bar, except the decision of the Supreme Court in Cotton Agents Ltd., Bombay Vs. Commissioner of Income-tax (Central) Bombay(1) in which it was held that the Commission became payable to the managing agents at the end of the financial year as provided by the agreement. We are, therefore, inclined to accept the contention of the learned counsel for the assessee in this aspect of the matter in disagreement with the opinion expressed by the Tribunal. 8. If the real point in controversy between the Department and the assessee, namely, the assessment of the amounts in question during the relevant previous years had been correctly and adequately brought out in the question as framed, we would have answered the question in the negative. But the frame of the question in our opinion limits the points for investigation and reflects only one aspect of the controversy, namely, the one set up by the assessee. It fails to take into account certain important facts of the case which had an important bearing on the assess ability to tax of the disputed amounts. In examining any transaction one has to pay more regard to the reality and speciality of the situation rather than to the purely theoretical and doctrinaire aspect of it. Emphasis has to be laid on the business aspect of the matter as whole when that can be done without any violence to the language of the statute. It is beyond controversy in this case that amounts in question were received on behalf of the assessee as income during the relevant previous years. It was, therefore, for the assessee to show that in spite of the amounts having been received during those years, they were not liable to taxation. Had the assessee proved that its accounts were maintained on the mercantile basis, the amounts would have been liable to assessment when the income accrued; but this the assessee has failed to do. It is also clear that although the books of account of the assessee were closed in June each year, these amounts find no mention in those accounts. The Income-tax Officer, therefore, was justified in assessing these incomes when they were actually received on behalf of the assessee. This he was entitled to do under Sec. 4 read with Sec. 13 of the Indian Income-tax Act. The Income-tax Officer, therefore, was justified in assessing these incomes when they were actually received on behalf of the assessee. This he was entitled to do under Sec. 4 read with Sec. 13 of the Indian Income-tax Act. The method adopted by the Income-tax Officer was far more in consonance with the law than the illegal or doctrinaire assumptions made by the Assistant Commissioner or by the Appellate Tribunal who without questioning adopted his reasoning. We, therefore, propose to reframe the question in this form:— "Whether on the facts and in the circumstances of this case, the amounts of Rs. 1,08,205/and Rs. 6,143/-received on behalf of the assessee were liable to assessment as income during the previous years relevant for the assessment years 1950-51 and 1951-52." And answer the question in the affirmative. 9. Another submission of the learned counsel for the assessee which requires notice is that the transaction between Mewar Sugar Mills Ltd. and the assessee company was in the nature of joint business venture and the position of the assessee lessor was merely that of a partner. Therefore, the profits payable to the assessee under the terms of the agreement became due to it as soon as it was entered in the books of Mewar Sugar Mills Ltd. and audited in favour of the assessee. Thus the income so accrued to the assessee could not be assessed as income during the relevant previous year under consideration. It is submitted further that the fact that the assessee was entitled merely to 10% of the net profits could not form the premium for a lease, which is usually fixed premium and not a fluctuating figure as in this case, which depended also upon the contingency of Mewar Sugar Mills Ltd. earning profits. Reliance has been placed by the learned counsel in support of his submission on this topic upon the dictum of the Privy Council in The Indian Radio and Cable Communications Company Ltd. Vs. The Commissioner of Income-tax, Bombay Presidency and Aden(2) at page 278, where the Judicial Committee observed that where the premium is fluctuating it is not rent. Attractive as the arguments are, there are two obvious difficulties in accepting them. The Commissioner of Income-tax, Bombay Presidency and Aden(2) at page 278, where the Judicial Committee observed that where the premium is fluctuating it is not rent. Attractive as the arguments are, there are two obvious difficulties in accepting them. In the first place the point that it was a case of joint business venture was never raised at any stage earlier and the departmental officers of the Appellate Tribunal were never called upon to apply their mind to this aspect of the matter. The point required the investigation of certain facts about the relationship of the assessee vis-a-vis Mewar Sugar Mills Ltd. This Court is not a Court of appeal and in the exercise of its advisory jurisdiction under Sec. 66 of the Income-tax Act it can not permit a new question of fact to be raised so as to open up a new line of enquiry and even necessitate fresh findings of fact by the Tribunal. We are unable to agree with the learned counsel for the assessee that he is entitled to raise the point, since it was an integral part of his case. As we have said there is no trace of any such question being even incidentally suggested either in the order of the departmental officers or in that of the Appellate Tribunal. The point of law in order to merit consideration ought to specifically and properly arise on the order of the Tribunal and the order should indicate that it was urged or must have been urged before the Tribunal and the same had applied its mind to the question. We are fortified in the above view by the decision of the Supreme Court in The New Jehangir Vakil Mills Ltd., Vs. The Commissioner of Income-tax, Bombay North, Kutch and Saurashtra(3) and in Bansi Lal on behalf of Shri Ekling Cotton Ginning and Pressing Factory, Gangapur, District Bhilwara Vs. The Commissioner of Income-tax(4). Secondly, the arguments on the point runs counter to the whole tenor of the deed of agreement dated 15th June, I935 which governed the relationship of the assessee with Mewar Sugar Mills Ltd. Even a casual perusal of the document would show that it was a deed of lease and that the assessee had no other interest in the business excepting this ten percent of the net profit. At every material place the recital is that of a lease and the relationship that of lessor and lessee. That appears to be the reason why at all earlier stages the contentions of the assessee proceeded on the footing that it was a deed of lease and the premium payable was by way of use and occupation of the premises and other properties of the assessee. It is, therefore, too late now to raise any such contention before this Court. 10. For the above reasons the reference has to be answered in the affirmative as stated earlier. Although the assessee has succeeded in showing that the reasons given by the Assistant Commissioner and the Tribunal are erroneous, in substance the assessee has failed. We, therefore, direct that parties will beer their own costs of this reference. We regret the unavoidable delay in deciding this matter.