In Re v.

[1] The difficulty in this case has entirely arisen owing to the ambiguity in the language used by the Commissioner in passing his order on the petition. The second paragraph of his order was on the face of it capable of the construction that he had held in the circumstances of this case, that where any sum of money passed from a foreign business to the headquarters of the firm in British India it must be regarded as profits and that no evidence was admissible to show that in fact it was something else. We are satisfied that the Commissioner did not mean to say that, but merely meant to say that he thought that where money was remitted from abroad to the headquarters m British India, the natural inference would be that such remittances came out of profits rather than capital until the contrary was shown by the assessee. The claim here was that a large portion of the amount remitted from Seranda to Karaikudi was a repayment of capital lent long years before or at any rate was profits outside the three years limit which would not under the law be assessable in British India. The Commissioner heard this contention and was not satisfied that the assessee had made out his case and he was entitled to take that view. That the onus of proof rested upon the assessee appears to be amply borne out by the case of Scottish Provident Institution v. Allan (1903) A.C. 129. That was a case of a Scottish Insurance Company, with branches in Australia, and in dealing with the question whether remittances from Australia to the Head Office in Scotland were assessable to income-tax, Lord Halsbury uses the following language:

The next question is, whether or not, though earned abroad, the profits have been brought to this country. Here is a large sum sent back. Putting these two items together, they must include, and obviously do include, a large amount of profits. It is for the company to show, if the fact be so, that that remittance ought to be subject to a certain amount of deduction, because a good (leal of it was -repayment of that which was in truth, capital and not profit at all.

[2] The presumption that the Commissioner made in this case, viz., that prima facie all remittances were to be regarded as profits and that the burden of proof was cast upon the assessee to show the contrary, seems to be amply warranted by the authority of that case. As the Commissioner did not misdirect himself the only questions in the case that remain are purely questions of fact and so long as he has approached them without any misconception in his mind as to how they should he dealt with, his findings are conclusive.

[3] The application will be dismissed with costs, Rs. 150.