SHINGHAL, C.J.—The Income-tax Appellate Tribunal (Delhi Bench A) (hereinafter referred to as "the Tribunal") has drawn up the statement of the case and referred the following question of law to this Court under sec. 256(1) of the Income-tax Act, 1961, hereinafter referred to as "the Act", for decision :— "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs 3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income-tax Act, 1961 ?" The reference has arisen in these circumstances— 2. The Bikaner Gypsums Ltd., hereinafter referred to as "the assessee", carries on the business of mining minerals. Its predecessor-in-title, the Natural Science (India) Ltd., acquired a lease from the Maharaja of the erstwhile Bikaner State on September 29, 1948 over an area of 4.27 square miles, at Jamsar. The lease agreement is on the record as Annexure B. The lease was for a period of 20 years and was renewable thereafter. It was assigned to the assessee on December 11, 1948, and the assessee entered into an agreement with the Sindri Fertilizer for the supply of gypsum of a minimum of 83.5 per cent quality. 3. The assessees mining area at Jamsar included, inter alia, the Jamsar railway station, the railway track and the railway siding. The assessee was, according to the Tribunal, "restricted from carrying on its mining operations within a distance of 100 yards" from those places. The railway extended its yard into the leased area and the assessee filed a suit in the Court of the District Judge, Bikaner, for ejectment, but without success. 4. The assessee exhausted the possibility of obtaining gypsum of the required degree of purity from the areas where it was entitled to carry on its mining operations without any restrictions, although gypsum deposits of a lower degree were available in those areas. According to the statement of the Tribunal, a large quantity of gypsum of "a high degree of purity acceptable to Sindri Fertilizer lay under the surface of the land covered by the railway station, railway track and the railway yard". According to the statement of the Tribunal, a large quantity of gypsum of "a high degree of purity acceptable to Sindri Fertilizer lay under the surface of the land covered by the railway station, railway track and the railway yard". The assessee "appealed" to the railway authorities to shift the railway station, railway track and the railway yard from their existing position so that it could, as stated by the Tribunal, "reise gypsum of the required purity to fulfil its contract with the Sindri Fertilizer". It was ultimately agreed between the assessee, the Sindri Fertilizer, the Government of India and the Railway Board that the railway station, the track and the yard would be shifted and the total expenditure of Rs. 12 lakhs thereon would be borne equally by all four of them. The assessee paid Rs. 3 lakhs and the Railway Board released the land to it. The assessee started the mining operations on the released land in March, 1965 and "exhausted gypsum of the required purity therefrom by May, 1967". It raised 6,30,390 tons of gypsum from that area as against the estimated stock of 10 lakh tons. 5. When the question of making an assessment of the income for the assessment year 1964-65 was taken up, the assessee claimed that the expenditure of Rs. 3 lakhs was for removing certain obstructions on its gypsum deposits. The Income-tax Officer held in his order Annexure A that the payment was for acquiring an additional capital asset, and that view was confirmed on appeal by the Appellate Assistant Commissioners order Annexure dated August 20, 1966. The assessee appealed to the Tribunal which held that it was not a capital payment but a "revenue" expenditure, and was a permissible deduction. The alternative contention of the assessee that the payment was for obtaining stocks of gypsum to be supplied to the Sindri Fertilizer was also upheld. 6. The Commissioner of Income-tax made an application under section 256 (1) of the Act requiring the Tribunal to refer the aforesaid question of law to this Court, and this is how the Tribunal has drawn up the statement of the case and made the reference. 7. The learned counsel for the parties have referred at length to the terms and conditions of the lease agreement Annexure B to show whether the payment of Rs. 3 lakhs was by way of a revenue expenditure. 7. The learned counsel for the parties have referred at length to the terms and conditions of the lease agreement Annexure B to show whether the payment of Rs. 3 lakhs was by way of a revenue expenditure. It will however be sufficient for us to say that the duty of finding the facts was essentially on the Tribunal, and it has stated them as follows :— (i) The "4.27 Sq. miles of leased mining area at Jamsar included Jamsar railway station, railway track and railway siding". (ii) The assessee was "under the terms of the lease agreement restricted from carrying on its mining operations within a distance of 100 yards" from the area mentioned in (i) above. (iii) The assessee had "exhausted gypsum of the required degree of purity from the areas where it was entitled to operate without any restrictions". (iv) "There were gypsum deposits of lower degree of purity in such areas which were however not acceptable to Sindri Fertilizer". (v ) A "large quantity of gypsum of high degree of purity acceptable to Sindri Fertilizer lay under the surface of the land covered by the railway station, railway track and railway yard". (vi) The assessee "appealed to the railway authorities to shift the railway station, track and yard from its existing position so that it could raise gypsum of the required purity to fulfil its contract with the Sindri Fertilizer". (vii) "Ultimately it was decided between the Company, Sindri Fertilizer, Government of India and Railway Board that the railway station, track and yard should be shifted and the expenses to be equally borne by all four of them..." (viii) "Accordingly, the Railway Board shifted the railway station, track and yard and released the land to the Company" (Emphasis added), (ix) The assessee "started mining operations in the released land in March 1965 and exhausted gypsum of the required purity therefrom by May 1967" (Emphasis added), (x ) The assessee raised 6,30,390 tons of gypsum from the said area against the estimated stock of 10 lakhs tons, during this period". We have to answer the question under reference on these basic facts. 8. We have to answer the question under reference on these basic facts. 8. It is well settled by the decision of their Lordships of the Supreme Court in R.B. Seth Moolchand Suganchand vs. Commissioner of Income-tax, New Delhi(l) that mining operations stand on a some-what different footing from other business, and a question like the one under reference has to be examined with due regard to that fact. 9. The learned counsel for the parties have cited a number of decisions, some of which deal with the facts applicable to a case like the present. The tests are whether the expenditure was for the acquisition of a business or of rights essential to the carrying on of a business City of London Contract Corporation, Limited vs. Styles (Surveyor of Taxes) (2), whether the assessee was granted any interest in land Mohanlal Hargovind of Jabbulpore vs. Commissioner of Income-tax. C. P., & Berar, Nagpur (3), whether the expenditure was incurred for initiation of the business The Commissioner of Inland Revenue vs. The Cavan Central Co-operative Agricultural and Dairy Society, Ltd (4), whether the capital was fixed or circulating John Smith & Son vs. Moore (H. M. Inspector of Taxes (5), whether a right was acquired to a source from which the raw material was to be extracted Pingle Industries Ltd. vs. Commissioner of Income-tax, Hyderabad(6), whether any new asset has been created as a result of the expenditure Southern vs. Borax Consolidated Ltd. (7), whether the winning of the mineral depended on uncertain factors Commissioner of Income-tax, Madras vs. Siddareddy Venkatasubba Reddy & Bros. (8), whether payment was to be made even if no mineral was extracted Pingle Industries Ltd. vs. Commissioner of Income-tax, Hyderabad (6), whether the expenditure was going to be made once for all Vallam-brosa Rubber Co , Ltd., vs. Former (Surveyor of Taxes(9), whether there was no limit to the quantity of the mineral to be extracted Pingle Industries Ltd. vs. Commissioner Income-tax, Hyderabad(6), was the assessee ensuring supplies of raw materials or purchasing them Alianza Company vs. Bell (10), and Mohanlal Hargovind of Jabbulpore vs. Commissioner of Income-tax, C. P. and Berar, Nagpur(3), whether the mineral in situ was the assessees stock in-trade Stow Bardolph Gravel Co., Ltd. vs. Poole (H.M. Inspector of Taxes (11), whether the asset or advantage acquired by the assessee was for the enduring benefit of the trade Atherton (H. M. Inspector of Taxes) vs. British Insulated and Helsby Cables Limited (12), and whether the money had been laid out as a trader and was directly and intimately connected with his business and not by way of owning assets Travancore Titanium Product Ltd. vs. Commissioner of Income-tax, Kerala (13), etc. 10. It is, however, well settled by the decisions of their Lordships of the Supreme Court in Abdul Kayoom vs. Commissioner of Income Tax(14) and M. A. Jabbar vs. Commissioner of Income Tax, Andhra Pradesh(15) that these and other tests are not exhaustive or universal, and the answer to a question like the present depends on the facts of the case in which it has arisen. As has been laid down in Abdul Kayooms case (14), what is decisive is the nature of the business in which the assessee is employed, the nature of the expenditure, the nature of the right which has been acquired, and the relation of these factors inter-se. 11. In the present case, as has been stated by the Tribunal, the assessee "carried on the business of mining minerals" under the aforesaid mining lease, and had entered into "an agreement of five years with the Sindri Fertilizer for the supply of gypsum of mininum 83.5 percent quality" and for that purpose it had to "search for, win, get, raise, convert and carry away" gypsum deposits of the Jamsar area as provided for in the lease agreement (Annexure B). It is no bodys case that the mineral in question, namely, gypsum, had already been gotten, or was otherwise on the surface and had only to be shovelled and supplied to the Sindri Fertilizer. It was therefore necessary for the assessee to search for gypsum deposits of the required standard, win the gyp-sum by carrying on mining operations and get it out for supply under the agreement. 12. As has been stated, the Tribunal has found it as a fact that in the course of mining operations, the assessee had "exhausted gypsum of the required degree of purity from the areas where it was entitled to operate without any restrictions". It has been stated by the Tribunal that gypsum deposits of a lower degree of purity were available in these areas, but they were "not acceptable to Sindri Fertilizer". The assessee had therefore to search for areas where gypsum of the required quality was available. According to the Tribunal, the assessee found that such deposits "lay under the surface of the land covered by the railway station, railway track and railway yard". The Tribunal has, it will be recalled, further stated that the assessee was "under the terms of the lease agreement restricted from carrying on its mining operations within a distance of 100 yards" from that area. It therefore "appealed to the railway authorities to shift the railway station, track and yard so that it could raise gypsum of the required purity to fulfil its contract with the Sindri Fertilizer". There were some negotiations in the matter and ultimately it was, according to the Tribunal, decided between assessees, the Sindri Fertilizer, the Government of India and the Railway Board that "the railway station, track and yard should be shifted, and the expenses to be (sic) equally borne by all four of them", and the assessee "contributed Rs. 3 lakhs being its share of the total expenses of Rs. 12 lakhs incurred for shifting railway station etc". This then was the nature of expenditure in question. It was not on account of a payment for royalty, or for collecting any gypsum lying on the surface by way of stock-in trade, or for purchasing raw material, or by way of expenditure for the initiation of the assessees business and it also was not an expenditure directly and intimately connected with the work of running the assessees business. 13. 13. But what was the nature of the right which was acquired by the assessee on payment of Rs. 3 lakhs ? This, as has been stated, is the third important question to be answered. 14. The Tribunal has examined the question of the assessees surface rights in the leased land and has recored the following finding: — "As, however, surface rights were not given in respect of the area covered by the Railway property the assessee Company could not break open the crust of the area covered by the said railway property and could not reach the gypsum deposits." Moreover, a cross-reference to the statement of the case will show that the other findings of the Tribunal which bear on the question are these— (a) On payment of Rs. 3 lakhs the "Railway Board shifted the railway station, track and yard and released the land to the Company", (b) the assessee thereupon "started mining operations in the released area in March, 1965 and exhausted gypsum of the required purity therefrom by May, 1967", (c) the assessee "raised 6,30,390 tons gypsum from the said area against the estimated stock of 10 lakh tons" during a period of about 2 years and 2 months. It is quite clear from these facts that what the assessee acquired on payment of Rs. 3 lakhs was a new asset, or, at any rate, an "improvement"of a fixed capital asset which, according to the decision in Southern vs. Borax Consolidated Ltd.(7), was an expenditure which was attributable to capital. There is no justification for the argument of Mr. Mehta for the assessee that we should not reach this conclusion merely because a formal document was not drawn up by the railway authorities, even after the payment of Rs. 3 lakhs, to give effect to the agreement which had been arrived at by the parties concerned. 15. Mr. Mehta has argued further that the assessee did not acquire any right whatsoever and that it paid Rs. 3 lakhs for the removal of an impediment because the restriction to carry on mining operations within a radius of a hundred yards from the railway property was not "an absolute one" and could be got over by obtaining the necessary permission. Mehta has argued further that the assessee did not acquire any right whatsoever and that it paid Rs. 3 lakhs for the removal of an impediment because the restriction to carry on mining operations within a radius of a hundred yards from the railway property was not "an absolute one" and could be got over by obtaining the necessary permission. It has also been urged that the assessee merely acquired the means for the use and exploitation of its capital asset and what was acquired could not therefore be said to be a capital asset unto itself. 16. It will be recalled that the Tribunal has found that the assessee did not posses the surface rights over the so called railway area And if it acquired that new right, even though for the purpose of winning the gypsum which was lying underneath that area, there is no reason why the new acquisition should not be regarded as the assessees new asset the more so when it was so badly needed for carrying on its adventure that without it the mining operations had come to a stop as gypsum deposits of the required degree of purity had been exhausted from the areas where the assessee was entitled to operate and the Sindri Fertilizer was not prepared to accept deposits of a lower degree of purity which were still available there. We are fortified in this view by the decision in Knight (H. M. Inspector of Taxes) vs. Calder Grove Estates(16). There the respondents purchased some other land for the purpose of obtaining access to the coal which lay under the surface of the land for which they held a mining lease for open-cast working. It was held that it was acquisition of land for the adventure and so, on ordinary principles, the transaction must be regarded as a capital expenditure. Reference may also be made to H.J. Roorke, Ltd. vs. Commissioners of Inland Revenue(l 7) where it was held that payments by open-cast coal mining company for right of entry upon the land of others was a capital expenditure even though the whole operation was to last only for a few months. It was held that as the Company were not buying circulating capital i.e. coal, but were acquiring rights in land which enabled it to obtain circulating capital, the payment was of a capital nature. 17. It was held that as the Company were not buying circulating capital i.e. coal, but were acquiring rights in land which enabled it to obtain circulating capital, the payment was of a capital nature. 17. It may also be mentioned that the Tribunal has stated in its appellate order (Annexure-F) that what was granted to the assessee under cl. 1 of Part II of the lease agreement Annexure B was "liberty and power ...........to enter upon the leased lands and to search for, win, work, get, raise, convert and carry away gypsum" and to carry on the mining operation mentioned in cl. 2 for that purpose. There is therefore no justification for Mr. Mehtas contention that the assessee acquired a proprietary right in the gypsum deposits in situ, and the reference to the acquisition of mineral rights in the Tribunals appellate order cannot be construed as a finding that the Tribunal had reached the finding that the assessee had become the owner of the gypsum in situ in the railway land. It may be that, as has been stated in Halsburys Laws of England, Vol. 26, 3rd Ed., paragraph 899, a mining lease may be granted of the surface of the land and the minerals below, but that cannot justify Mr. Mehtas further argument that the assessee must, for that reason, be deemed to have become the owner of the deposits in situ, or to have a proprietary right therein irrespective of the other terms of the lease. It follows, therefore, that the test laid down in Stow Bardolph Gravel Co. Ltd. vs. Poole (Inspector of Taxes)(18) that if what is purchased is not readily identifiable stock-in-trade, but the means of getting the mineral, the expenditure would be on capital account, would be applicable to the present case as well. 18. It follows, therefore, that the test laid down in Stow Bardolph Gravel Co. Ltd. vs. Poole (Inspector of Taxes)(18) that if what is purchased is not readily identifiable stock-in-trade, but the means of getting the mineral, the expenditure would be on capital account, would be applicable to the present case as well. 18. It will be recalled that one of the tests in such cases was laid down by Viscount Cave L C. in Athertons case (12), as follows— "But when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumsrances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital." In that case the sum which was sought to be deducted was contributed irrevocably as the nucleus of a Pension Fund established by a trust deed for the benefit of the Companys clerical and technical salaried staff. It was held that the payment was in the nature of capital expenditure and the deduction was not admissible. The test was followed in Knight (H. M. Inspector of Taxes) vs. Calder Grove Estates (16) and H. J. Roorke, Ltd. vs. Commissioners of Inland Revenue (17). It has been approved by their Lordships of the Supreme Court in Pingle Industries Ltd. vs. Commissioner of Income-tax, Hyderabad (6) and Abdul Kayoom vs. Commissioner of Income Tax (14). It has been noticed by their Lordships that the words "enduring benefit of a trade" do not mean "everlasting," but "in the way capital endures". The view taken in the case of the Pingle Industries Ltd. (6) has been followed in R. B. Seth Moolchand Suganchand vs. Commissioner of Income-tax, New Delhi (1) so that Viscount Caves test whether the asset or advantage is for the enduring benefit of the trade, has held the field in the absence of special circumstances leading to an opposite conclusion. As has been stated, the words "enduring benefit" do not denote any specific length of time and, if we may say so with respect, are meant to convey the meaning that the benefit is not merely momentary, or ephemeral, or transitory, or transient. As has been stated, the words "enduring benefit" do not denote any specific length of time and, if we may say so with respect, are meant to convey the meaning that the benefit is not merely momentary, or ephemeral, or transitory, or transient. So when in the present case the assessee was able to secure the release of the land in question and was able to carry on its mining operations in the released land from March 1965 to May, 1967, we have no doubt that what was acquired on payment of Rs. 3 lakhs was an asset or advantage for the enduring benefit of the assessees business and was attributable to capital. It may be mentioned that no special circumstance leading to an opposite conclusion has been brought to our notice 19. We have made a reference to the decision of their Lordships of the Supreme Court in R. B. Seth Moolchand Suganchand vs. Commissioner of Income-tax, New Delhi (1) and we would like to refer to it in some details here as it has a direct bearing on the controversy before us That was, however, not available to the Tribunal as it was rendered after the Tribunal had decided the appeal. It was also a case where the assessee firm was carrying on mining business. It tendered for mica mining, in accordance with the terms and conditions prescribed in the rules, for certain areas, for Rs. 1,57,150 of which a sum of Rs. 3,360 was payable towards the mica scrap lying on the surface, The lease was for 20 years and the areas which were offered had been worked by other private companies for 15 years. The firm claimed Rs. 7,857 being one-twentieth of the tender money as revenue expenditure for the year. Their Lord-ships of the Supreme Court referred to the view of Lord Cave in Atherton (H. M. Ins-pector of Taxes) vs. British Insulated and Helsby Cables, Limited (12) and their own decision in Abdul Kayooms case (14) and observed as follows:— "If we confine our attention to the mining leases, what appears to us to be an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature. But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material that is, the mineral, would be a revenue expenditure laid out for the acquisition of stock-in-trade. An expenditure incurred for acquiring a right to take away sand from the surface of river beds has been treated as if the sand was stock-in-trade M.A. Jabbar vs. Commissioner of Income-tax in the same way as tendu leaves have been treated by the Privy Council in Mohanlal Hargovinds case." Their Lordships also referred to their decision in Pingle Industries case (6) and, while observing that the principles which were applied to that case were equally applicable to the case before them, they laid down the law in the following terms :— "The test for ascertaining whether the amount spent is of a capital nature is, whether it was spent for obtaining a right of an enduring character which in the case of mining leases is to acquire rights over land for winning the mineral In other words, where the mineral is part of the land and some mining operations have to be performed to extract it from the earth, the amount paid to acquire a right over or in the land to win that mineral is of an enduring character and, hence, a capital expenditure." Their Lordships held that as minerals had to be won and extracted from the earth, the payment to acquire the right over or in the land and to win the mineral could not be equated to a payment made for the purpose of acquiring stock-in-trade, and was on capital account. They held that the fact that the period of a licence was one year, did not make it a revenue payment. The facts of the instant case are quite similar and we have no doubt that we have to give a similar decision. Here also, the payment of Rs. They held that the fact that the period of a licence was one year, did not make it a revenue payment. The facts of the instant case are quite similar and we have no doubt that we have to give a similar decision. Here also, the payment of Rs. 3 lakhs was made to acquire the right over or in the so called railway land to win gypsum, Moreover that right was irrespective of the quantity of gypsum obtained by the assessee and, as the assessee had still to carry on the mining operations by way of winning, extracting and bringing gypsum which was embedded in the land to the surface, what the assessee acquired was an asset or advantage for the enduring benefit of its business. It will be recalled that the Tribunal has found it as a fact that the mining operations were carried on in the released area for some 2 years and 2 months and the assessee was able to win 6,30,390 tons of gypsum against the estimated stock of 10 lakhs tons. It is no bodys case, and has infact not been contended by Mr. Mehta, that what was acquired was a mere stock-in-trade for he has appreciated that it would be impossible for him to place his case that high. 20. Mr. Mehta tried to argue that the assessee became the owner of the gypsum deposits in situ but, as has been shown, that contention is not tenable on the terms and conditions of the lease. The ancillary argument that the payment of Rs. 3 lakhs was made to remove the restriction or obstruction which was placed in the way of the assessee, is equally untenable for that very reason. So also, there is no justification for the argument that the assessee acquired nothing new on payment of Rs. 3 lakhs. As has been shown, it undoubtedly acquired a new asset or advantage for the enduring benefit of its business as it acquired a source from which gypsum had to be extraced Pingle Industries Ltd. vs. Commissioner of Income-tax, Hyderabad(6). Moreover the operations of the assessee depended on uncertain factors for whereas the estimated stock of gypsum in situ was 10 lakhs tons, the assessee found that it was only 6,30,390 tons. It will be recalled that, even so, it had to pay Rs. Moreover the operations of the assessee depended on uncertain factors for whereas the estimated stock of gypsum in situ was 10 lakhs tons, the assessee found that it was only 6,30,390 tons. It will be recalled that, even so, it had to pay Rs. 3 Lakhs, so that the payment was irrespective of the quality of gypsum which was actually extracted. 21. Faced with the odds against him, Mr. Mehta put forth the argument that the assessees right to win gypsum from the restricted area was in a state of suspended animation and that as it came back to life as soon as the restriction was removed by the railway authorities, the payment of Rs. 3 lakhs was wholly related to production and was analogous to operating costs and was not by way of acquiring an enduring advantage. Reliance in this connection has been placed on the decisions in Southern vs. Borax Consolidated Ltd.(7), Commissioner of Taxes vs. Nchanga Conso-lidated Copper Mines, Ltd.(19), Lakshmiji Sugar Mills Go. P. Ltd. vs. Commr. of I.T. New Delhi (20), Commr. of I.T., West Bengal vs. Hindusthan Motors Ltd.(21), Royal Calcutta. Turf Club vs. Commr. of I.T., West Bengal, Galcutta(22). Commr. of I. T., Bombay North vs. Chandulal Keshavlal & Co. Petlad (23), Commr. of I.T., Bihar & Orrissa vs. Kitkend Coal Co.,(24), Gotan Lime Syndicate vs. Commr. of I.T. Rajasthan & Delhi(25), Kalyanji Mavji & Go. vs. Commr. of I.T., W. Bengal-II(26), Commr. of I T., Bombay City-I vs. Associated Cement Companies Ltd. (27) and General Corpn. Ltd. vs. Commr. of I.T., Madras(28). We have gone through all these cases and, as we shall show, they have no bearing on the controversy before us. 22. In Southerns case (7), it was found that the capital asset of the Company "remained absolutely unaltered" and that the legal expenses which were incurred by it did not create any new asset at all, but were expenses which were incurred in the ordinary course of maintaining the assets of the company and the fact that it was maintaining the title, and not the value, of the Companys business did not make it any different. 23. 23. In Commissioner of Taxes vs. Nchanga Consolidated Copper Mines Ltd (19), it was held that by paying compensation the companies acquired the right to have P. Ltd. out of production for the year, so that the expenditure was wholly related to the output of the Companys mine and was analogous to an operating cost. So also in Lakshmiji Sugar Mills Go P. Ltd. vs. Commr. of I.T., New Delhi(20) it was held that as the Company carried on the business of manufacture and sale of sugar, the contribution made for the construction and development of roads, which had an element of statutory compulsion and were not altogether newly made, was incurred for the purpose of facilitating the running of its vehicles and was for running the business or working it with a view to producing profits without the company gaining any advantage of an enduring benefit. In Commr. of I.T., W. Bengal vs. Hindusthan Motors Ltd.(21) the Company made a contribution for the improvement of the approach road. That was why it was held that the expenditure was not so much to bring about any asset or advantage of enduring benefit to itself as to run the business efficiently and conveniently. 24. The facts of Royal Calcutta Turf Club v. Commissioner of Income-tax, West Bengal, Calcutta (22) were quite different for there the expenditure had been incurred to avert a threat or to rid the club of an embarrassment and it was found that the expenditure had been incurred on the Clubs school for jockeys for maintaining the conditions which would preserve for it, its opportunities for making profits in the business and as such it was an expenditure for the purpose of carrying on the assessees business. So also in Commissioner of Income-tax, Bombay North vs. Chandulal Keshavlal & Go. Petlad(23), it was found that the part of the commission which was given up by the assessee was expended for reasons of commercial expediency and was allowable business expenditure. In Commr. of I.T. Bihar & Orissa vs. Kirkend Coal Co.(24), it was found as a fact that stowing was a necessary operation in the process of extraction of coal and that was why it was held to be an allowable deduction. 25. We have already made a reference to Gotan Lime Syndicate vs. Commr. In Commr. of I.T. Bihar & Orissa vs. Kirkend Coal Co.(24), it was found as a fact that stowing was a necessary operation in the process of extraction of coal and that was why it was held to be an allowable deduction. 25. We have already made a reference to Gotan Lime Syndicate vs. Commr. of I. T. Rajasthan & Delhi (25) it was held on the facts of the case that royalty payment, including dead rent, had relation only to the lime deposits to be got, and that was why it was treated as a revenue expenditure. Kalyanji Mavji & Co. vs. Commr. of I.T., West Bengal-II(26) was a case where the mine was not worked for a number of years because of military occupation The firm in that case claimed the expenses incurred by it during the period of military occupation on account of minimum royalty, surface rent and salary for watch and ward staff. It was held that the firm must be considered to have been carrying on its business in coal as owner of coal mine and there was no question of acquiring a new or a fresh asset. Commr. of I.T., Bombay City-I vs. Associated Cement Companies Ltd.(27) was also a different case where it was found that the payment had been made to remove the possibility of a recurring disadvantage and was for the convenient and economical running of the business. As regards General Corporation Ltd. vs. Commr. of I.T., Madras(28), it will be sufficient to say that the Company there spent some money in trying to resume its closed business. The business was never resumed and it was therefore held that the expenditure which was incurred with the intention of resuming the business was an allowable deduction. 26. It will thus appear that the cases which have been cited by Mr. Mehta are of no avail to the assessee and it must be held that the expenditure under challenge was on account of capital and was not debit able. 27. Mr. Mehta has tried to support the Tribunals view and has argued that it is essentially correct because it has been based on what he has called findings of facts of the Tribunal. 27. Mr. Mehta has tried to support the Tribunals view and has argued that it is essentially correct because it has been based on what he has called findings of facts of the Tribunal. It has been contended that those findings are not open to challenge in these proceedings because it was for the Tribunal to find the facts and it is for this court to lay down the law applicable to them. Reference in this connection has been made to Agha Abdul Jabbar Khan vs. Commissioner of I.T , M.P. (29), Commissioner of I.T., Andhra Pradesh vs. Kotrika Venkataswamy & Sons (30), I. T. Appellate Tri-bunal, Bombay vs. Managing Trustee, Shri Radha Madho Trust, Saugor C.P.(31), and Aluminium Corporation of India Ltd. vs. Commr. of I. T., West Bengal(32). 28. It is true that this Court has no jurisdiction to raise new questions of law, but it is equally well settled by the decision in Commr. of I.T., Bom. South, Bombay vs. Ogale Glass Works Ltd (33) that if the language of the question clearly indicates that the question of law has to be determined "on the facts of the case,"as in this case, it would involve an undue cutting down of the scope of the question if all the other facts appearing on the record and referred to in the Tribunals appellate order and the statement of the case were to be left out merely because the Tribunal has not founded its decision on them although they were the subject matter of consideration before it. The decision in Ogale Glass Works case (33) has been approved in Commissioner of I.T., Bombay vs. Scindia Steam Navigation Co. Ltd. (34) and it has been held as follows at p. 612— "All that sec. 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an overrefinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of sec. 66(1) of the Act." The view in Scindia Steam Navigation Co. It will be an overrefinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of sec. 66(1) of the Act." The view in Scindia Steam Navigation Co. Ltd.(34) has been referred to and approved in Bhanji Bhagwandas vs. Commr. of I.T., Madras(35). 29. It is therefore permissible for this Court to examine the so-called four findings of fact referred to by Mr. Mehta-the more so as they are really the grounds for the Tribunals decision that the expenditure of Rs. 3 lakhs was on revenue account. Moreover, as we shall show, those grounds are inadequate, or inconsistent, or incorrect. 30. The first ground is that the Tribunal has taken the view that the "assessee acquired a right to the minerals i. e. the gypsum lying underneath the entire 4.27 square miles of land specified in the lease-deed including the land covered by the railway property". Mr. Mehta has urged that we should accept, this as a finding that the assessee was the owner of the gypsum in situ, lying embedded in the earth within a distance of 100 yard from the railway. This is however an impossible contention because the Tribunal has itself stated, in an earlier part of its appellate order Annexure F, that what the assessee got was the right to search for, win, work get, raise, convert and carry away the gypsum, so that there could be no justification for holding that the assessee was the owner of the mineral in situ. It my also be mentioned that, in so far as the railway was concerned, there was an express restriction in the lease deed that no mining operations or working shall be carried on or permitted to be carried on by the assessee in or under the......lands at or to any point within a distance of 100 yards from any railway". It appears that the Tribunal lost sight of these basic facts, and that has led to an erroneous decision of the appeal before it. 31. The second ground referred to by Mr. It appears that the Tribunal lost sight of these basic facts, and that has led to an erroneous decision of the appeal before it. 31. The second ground referred to by Mr. Mehta is that the Tribunal has held that the assessee has not only been given a licence to remove as much gypsum as it possibly could from the leased area "but has also been given the surface right over the entire area for enabling it to do so with certain restrictions in respect of certain areas". It has further been held that "having regard to the nature of the operation......there would have been no point in granting mineral rights under a certain area without granting the surface right above the said area......". But this ground is also untenable for at least two reasons Firstly; as has been shown, it is not correct to say that, in so far as gypsum in situ was concerned, the assessee had any right other than the right to carry on mining operation to win it in the area where this was permissible. Secondly, the Tribunal lost sight of the fact that it had itself stated a little earlier, in its appellate order, Annexure F, that "surface rights were not given in respect of the area covered by the railway property" and that "the assessee did not have any means of access or approach to the said deposits as it did not possess the surface rights over that area". There is therefore an apparent inconsistency in the reasoning of the Tribunal and it is no wonder that it has arrived at an incorrect conclusion. 32. The third ground which has been pointed out is that the Tribunal has recorded the finding that "Rs. 3 lakhs were not spent for acquiring surface rights which the assessee already acquired under the lease, deed". It will be sufficient for us to say that this reasoning suffers from the same infirmity which we have pointed out in regard to the second point. 33. Lastly, it has been pointed out that the Tribunal has dealt with the nature of the benefit or advantage received by the assessee on payment of Rs. It will be sufficient for us to say that this reasoning suffers from the same infirmity which we have pointed out in regard to the second point. 33. Lastly, it has been pointed out that the Tribunal has dealt with the nature of the benefit or advantage received by the assessee on payment of Rs. 3 lakhs and held as follows :— "We have pointed out above that surface right was a consumable right which did not endure beyond providing access to 7 to 8 feet column of gypsum, deposit directly underneath it. Moreover, even the mineral deposits underneath the entire area of 40 acres released by the Railways did not last for more than two years and did not yiled more than 6,30,330 tons of gypsum." We have not been able to appreciate what exactly is meant by using the expression "consumable right" for, in the nature of things, nothing is eternal and a mining operation has a tendency to end some day. As has been pointed out in R. B. Seth Mool-Chand Suganchand vs. Commissioner of Income-tax, New Delhi (1), it is not meant by an enduring advantage that it should be an everlasting advantage, and that it is enough if it endures in the way capital endures. It is also futile to contend that a right which lasted for two years or so is not of an enduring nature. It may be stated that it has been held in H.J. Roorke, Ltd. vs. Commissioners of Inland Revenue(17) and R. B. Seth Moolchand Suganchand vs. Commissioner of Income-tax, New Delhi (1) that an advantage or benefit which lasts for a much shorter period may be for the enduring benefit or advantage of the business of the assessee. The Tribunal also lost sight of the fact that the benefit or advantage was actually so substantial that the assessee was not only able to carry on its mining operations from March, 1965 to May, 1967, but raised 6,30,390 tons of gypsum of the required degree of purity which alone was acceptable to the Sindri Fertilizer and which was not available any where else and would not have been available but for the payment of Rs. 3 lakhs. 34. 3 lakhs. 34. For the reasons mentioned above, we have no doubt that the Tribunal committed a serious error in deciding the question of law under reference and we have no hesitation in answering it in the negative. Further action may be taken by the Registrar as required by section 260 of the Act. Costs here will be payable by the assessee. Counsels fee Rs. 300/-.