1. The Income-tax Appellate Tribunal has referred the following question under Section 19 of the Super Profits Tax Act, 1963, read with Section 256(1) of the Income-tax Act, 1961:
'Whether, on the facts and in the circumstances of the case, it was rightly held that, (1) proposed dividends, (2) provision for taxation, (3) credit balance of profit and loss account, (4) depreciation reserve (being excess of book depreciation over depreciation allowed in the income-tax assessment) represented 'reserves' and were to be included in the computation of capital under the Super Profits Tax Act, 1963 ?'
2. The assessee is a limited company. It was assessed under the Super Profits Tax Act, 1963, for the assessment year 1963-64 of which the relevant account year ended on December 31, 1962.
3. Section 4 of the Super Profits Tax Act provides for the levy of super profits tax on a company for an assessment year in respect of so much of its chargeable profits of the previous year as exceed the standard deduction at the specified rate. The first assessment year to which the Act applies is the year commencing April 1, 1963. The expression ' standard deduction ' has been defined by Section 2(8) of the Act to mean an amount equal to six per cent. of the capital of the company as computed in accordance with the provisions of the Second Schedule or an amount of Rs. 50,000, whichever is greater. The Second Schedule sets out the rules for computing the capital of the company. Rule 1 declares :
' Subject to the other provisions contained in this Schedule, the capital of a company shall be the sum of the amounts, as on the first day of the previous year relevant to the assessment year, of its paid up share capital and of its reserve, if any, created under the proviso (b) to Clause (vib) of Sub-section (2) of Section 10 of the Indian Income-tax Act, 1922, or under Sub-section (3) of Section 34 of the Income-tax Act, 1961, and of its other reserves in so far as the amounts credited to such other reserves have not been allowed in computing its profits for the purposes of the Indian Income-tax Act, 1922, or the Income-tax Act, 1961, diminished by the amount by which the cost to it of the assets the income from which in accordance with Clause (iii) or Clause (vi) or Clause (vii) of Rule 1 of the First Schedule is not includible in its chargeable profits, exceeds the aggregate of-
(i) any money borrowed by it which remains outstanding; and (ii) the amount of any fund, any surplus and any such reserve as is not to be taken into account in computing the capital under this rule.'
4. Broadly speaking, the factors which go into the computation of the capital of a company for the purposes of super profits tax include its paid up share capital, its development rebate reserve, and its other reserves in so far as the amount credited thereto have not been allowed in computing the profits for the purposes of the Income-tax Act. These components must be determined with reference to the first day of the previous year relevant to the assessment year. In the present case, therefore, they must be considered with reference to January 1, 1962.
5. In the assessment proceeding under the Act, the assessee claimed the inclusion of the following four items in the computation of its capital:
Provision for taxation
Credit balance of profit and loss account
Depreciation reserve being excess of bookdepreciation over income-tax allowed depreciation
6. The Income-tax Officer held that those items did not constitute 'reserves' and, therefore, rejected the assessee's claim. The assesses appealed to the Appellate Assistant Commissioner and pressed for the inclusion of those four items in the computation of the capital base of the company. The contention was not accepted. The assessee then proceeded in second appeal before the Income-tax Appellate Tribunal, and the appeal has been allowed by the Tribunal on the finding that all the four items should be considered as reserves.
7. At the instance of the Commissioner of Income-tax, the Tribunal has now made this reference.
8. What is a ' reserve ' The expression was considered by the Supreme Court in a case arising out of the Business Profits Tax Act. In Commissioner of Income-tax v. Century Spinning and .,  24 I.T.R. 499; 23 Comp. Cas. 462;  S.C.R. 203 (S.C.) the Supreme Court referred to the ordinary natural meaning of the word, as it is understood in common parlance. The court relied on the dictionary meaning of the word ' to keep for future use or enjoyment, to set apart for some purpose or with some end in view; to keep for some use; to retain or preserve for certain purposes '. In that case, the question arose whether a sum of Rs. 5,08,637 could be called a ' reserve ' on April 1, 1946, the relevant date under the Act. It was found that on January 1, 1946, the amount was simply brought from the profit and loss account to the next year, and nobody with any authority on that date made or declared a reserve. On February 28, 1946, the directors of the company earmarked the same for distribution as dividend and did not choose to make it a reserve. Nor did the company, in its meeting of April 3, 1946, decide that it was a reserve. On the contrary, it was actually distributed as dividend by a resolution of the shareholders. The court held that on April 1, 1946, the amount remained a mass of undistributed profits which was available for distribution and was not earmarked as a reserve. As a mass of undistributed profits on that date, it could not automatically become a reserve. It was explained that while the directors had recommended the distribution of the amount as dividend, they could only make a recommendation and it was for the shareholders to accept the recommendation when alone the distribution could take place. The Supreme Court observed that on April 1, 1946, the amount remained in its nature nothing more than the undistributed profits of the company and, therefore, ' the profits lying unutilised and not specifically set apart for any purpose on the crucial date did not constitute reserves within the meaning of Schedule II, Rule 2(1)'.
9. The question was again considered by the Supreme Court in First National City Bank v. Commissioner of Income-tax,  42 I.T.R. 17 ;  3 S.C.R. 371 (S.C.). The assessee, which was a bank incorporated under the National Bank Act of the United States of America, followed the system of accounting adopted by American banks which conformed to the instructions contained in the Treasury Rules of the United States. In accordance with that system, it set aside and transferred the net profits of each year, after provision for expenses, taxes, dividends and reserves, to an account headed ' undivided profits '. The statute under which an allocation had to be made under that account treated ' undivided profits ' as part of the capital funds of the bank. The Supreme Court considered the question whether the amount accumulated in that account could be treated as a ' reserve' for the purposes of Schedule II, Rule 2(1) of the Business Profits Tax Act. The court examined the system of accounting of banking companies in the United States. It referred to the Treasury Rules of the United States which required certain sums to be specifically allocated under Section 5211 of the revised statute of the United States. Item No. 28 detailed the reserves. Reference was also made to the letter of the Deputy Controller of Currency, Washington, declaring that in the United States the ' undivided profits ' actually represented a part of the capital fund of the bank. It was taken into account in calculating the adequacy of capital and was treated as an integral part of the capital structure. When losses occurred in banks it was the usual practice to charge them against the ' undivided profits ' account. The letter further declared that the term ' undivided profits ' followed a banking accounting nomenclature used in the United States to designate profits set aside, after provision for expenses, taxes, dividends and reserves, for continuous future use in the business of the bank. Upon this material, the Supreme Court rejected the contention of the revenue that the amount could not be treated as a reserve. It referred to the earlier decision in Century Spinning & ., and, applying the test laid down there to the disputed sum, held it to be a ' reserve ' on the ground that under the statutory instructions the assessee was required to keep a certain sum of money under the head ' undivided profits ' and that was an integral part of the capital structure.
10. Then follows the decision of the Supreme Court in Commissioner of Income-tax v. Standard Vacuum Oil Co. Ltd.,  59 I.T.R. 683;  2 S.C.R. 367 (S.C.) It was held there that it was not necessary that a reserve admissible in the computation of capital under Schedule II, Rule 2(1) of the Business Profits Tax Act should be one built out of profits, and that reserves built up from other sources were also admissible. The court reiterated the view expressed in earlier decisions that to constitute a ' reserve ' the amount must be specifically kept apart for future use or for a specific occasion. It observed that in the United States the accumulated profits at the end of the accounting year were not carried forward to the account of the next year, as was the practice in India, but according to the system of accounting prevailing in the United States they had to be allocated to some account. They were allocated to 'earned surplus' which was intended for and was used in subsequent years for the purpose of the business of the assessee. The account in which this amount was carried retained its identity year after year. It was pointed out that the balance in the ' earned surplus ' account at the end of the year did not merge in the account of the subsequent year. Accordingly, the amount was held to represent ' reserves '.
11. The Calcutta High Court, in Indian Steel & Wire Products Ltd. v. Commissioner of Income-tax,  27 I.T.R. 436, 443 (Cal.), a case also involving the application of Rule 2(1) of Schedule II of the Business Profits Tax Act, held that an unappropriated balance shown in the balance-sheet carried forward to the next year, as well as a similar unappropriated balance carried forward from an earlier year would not constitute a reserve because the manner of its disposal or its destiny had not been indicated by the assessee. It was observed:
' The company was merely carrying a loan of unappropriated profits, of which a part was a kind of floating balance which had floated forward into the year immediately preceding and being added to the balance of that year had floated further forward into the chargeable accounting period without finding or being directed to a local habitation in any specific way anywhere at the direction of the company. '
12. In Commissioner of Income-tax v. Rohit Mills Ltd.,  58 I.T.R. 854 (Guj.), the Gujarat High Court held that advance tax paid under Section 18A of the Income-tax Act could not be treated as part of the reserve for the purposes of the Business Profits Tax Act. It was pointed out that the advance tax was only a payment on account.
13. Turning-to the facts before us, it seems that the item of Rs. 4,17,500 representing proposed dividends cannot be treated as a reserve. It appears that the board of directors of the assessee made a proposal to the shareholders that the amount be distributed among the shareholders by way of dividends and made a provision for that amount in the balance-sheet of the year ending December 31, 1961. Apparently, therefore, the amount was earmarked for payment of dividend and was not treated by the directors as a reserve. So far as this item is concerned, the case, in our opinion, falls within the Rule laid down in Century Spinning & . It remained a mass of undistributed profits liable to be distributed as dividend upon the acceptance of the recommendation by the shareholders.
14. It was not set apart as a reserve for any purpose, and, therefore; could not be treated on January 1, 1962, the first day of the relevant previous year, as a reserve for the purposes of Schedule II, Rule 1 of the Super Profits Tax Act. Reference may be made to Regulation 87 of Table A of the First Schedule to the Companies Act, 1956.
15. The next item is Rs. 19,16,028 shown as provision for taxation. This consists of Rs. 12,41,028 representing the provision for taxation during the preceding accounting year and Rs. 6,75,000 representing the provision made during the year. From the contention made on behalf of the assessee before the Tribunal, one gathers that the provision was made for taxation in anticipation of quantification of the tax liability. It was a provision and not a reserve. It was provision made for current liability, the liability having already accrued when the income was earned and awaited merely quantification by assessment. It was not a reserve because it was designed to meet a liability known to exist on the date of the balance-sheet. Consequently, in our opinion, the item representing provision for taxation cannot also be treated as a reserve for the purpose of the Super Profits Tax Act.
16. The third item of Rs. 12,679 represents the credit balance of the profit and loss account. Here again, there is nothing to show that this credit balance was set apart by the assessee to some future use. The position is similar to that which obtained before the Calcutta High Court in Indian Steel & Wire Products Ltd. We are unable to hold that this item can be described as a reserve.
17. The last item, Rs. 2,23,185, has been described as a depreciation reserve. It is the excess of book depreciation over the income-tax allowed depreciation. It is what has sometimes been described as a 'secret reserve '. In the absence of any evidence to show that this amount was set apart for a future use, we cannot, having regard to the test laid down by the Supreme Court in the cases mentioned above, treat this item as a reserve. It may be, as was urged before us, that this is one of the methods adopted in the creation of a revenue reserve. We have been referred to William Pickles on Accountancy and Practical Book-keeping and Commercial Knowledge by Spicer & Pegler'. But, in view of what has been laid down by the Supreme Court, we are bound to hold that this is not a reserve.
18. It is urged on behalf of the assessee that case law relating to theBusiness Profits Tax Act is not relevant for the purpose of deciding thequestion under this Super Profits Tax Act. The Business Profits Tax Actit is pointed out, was passed when the Indian Companies Act, 1913, wasstill in force, and the position has since changed by the enactment of theCompanies Act, 1956. It is urged that, therefore, the law laid down by the Supreme Court in Century Spinning & . cannot be applied. We are unable to see how the position has changed. In Century Spinning & ., the Supreme Court relied upon Regulation 99 of Table ' A ' of the First Schedule of the Indian Companies Act, 1913, which provided that before recommending any dividend the directors may set aside out of the profits of the company such sums as they thought proper as a reserve. It was emphasised that according to the Regulation any sum out of the profits of the company which was to be made a reserve has to be set aside before the directors recommended any dividend. It is apparent from the corresponding Regulation 87 of Table 'A' of the First Schedule to the Companies Act, 1956, that the position remains materially the same.
19. It seems to us that if we refer to the Companies Act, 1956, the position which emerges is in no way inconsistent with what has been laid down by the Supreme Court in the cases mentioned above. Section 211 of the Act provides that the balance-sheet of a company shall be in the form set out in Part I of Schedule VI. In the form of balance-sheet set out in Part I of Schedule VI, item II is headed 'Reserve and surplus'. Clause (5) of item II reads:
' Surplus, that is balance in profit and loss account after providing for proposed allocations, viz., dividend, bonus or reserves.'
20. The balance in the profit and loss account is referred to as the ' surplus ', and, as the head 'Reserve and surplus' clearly indicates, a surplus is not a reserve. Therefore, the balance in the profit and loss account cannot be treated as a reserve. Then, in the same clause a proposed allocation for dividend is spoken of as distinct from allocation for reserve, thus showing that the one cannot be comprehended within the other. On the contrary, item V headed' Current liabilities and provisions ' refers by Clause (8) to ' proposed dividends '. Apart from proposed dividends, we may point out that item V also contains Clause (6) which refers to 'provision for taxation '. That has not been classified in item II which is headed ' Reserve & surplus ', thus showing that provision for taxation is not to be treated as a reserve. What is a reserve for the purposes of Part I of the Schedule has been defined by Clause 7(1 )(b) of Part III of Schedule VI. The definition reads:
' 7. (1) For the purposes of Parts I and II of this Schedule, unless the context otherwise requires,--
(b) the expression ' reserve ' shall not, subject as aforesaid, include any amount written off or retained by way of providing for depreciation, renewals or diminution in value of assets or retained by way of providing for any known liability;'. Applying this interpretation clause, it is evident that the provision for taxation before us must be excluded from the expression ' reserve'.
21. We may point out that by specific provision in the corresponding rule under the Companies (Profits) Surtax Act. 1964, for computing the capital of a company for the purpose of surtax the position has been made abundantly clear. The Explanation to Rule 1 of the Second Schedule to that Act states:
' Explanation,--For the removal of doubts it is hereby declared that any amount standing to the credit of any account in the books of a company as on the first day of the previous year relevant to the assessment year which is of the nature of item (5) or item (6) or item (7) under the heading 'Reserves and surplus' or of any item under the heading '.Current Liabilities and Provisions' in the column relating to 'liabilities' in the 'form of balance-sheet' given in Part I of Schedule VI to the Companies Act, 1956 (1 of 1956), shall not be regarded as a reserve for the purposes of computation of the capital of a company under the provisions of this Schedule.'
22. It is also urged that all the four items, with .which we are concerned, or at least some of them, should be regarded according to the Indian practice as ' general reserve ' and we have been referred to the observation of the Supreme Court in that regard in Standard Vacuum Oil Co. In our opinion, when the Supreme Court made that observation, it referred to the head ' earned surplus ' in the balance-sheet of the American company, and the Supreme Court specifically treated it as referring to a fund to be utilised for the purposes of the business of the assessee. It was a distinct fund maintained for that purpose, and amounts allocated to it were used in the subsequent years in the business. The account in which the amount was carried retained its identity year after year.
23. We have also been referred by learned counsel for the assessee to the decision of the Supreme Court in Commissioner of Income-tax v. Mysore Electrical Industries, Civil Appeal No. 1794 of 1970 decided on April 27, 1971.--Since reported in  80 I.T.R. 566 (S.C.). The Supreme Court held in that case that the reserves created by the company by appropriations made on August 8, 1963, must be deemed to relate back to April 1, 1963, on which date the accounting year commenced. The Supreme Court repelled the contention urged on behalf of the revenue that those appropriations could be taken into account only in respect of the subsequent year commencing on April 1, 1964. It seems to us that the question which arose in that case does not arise before us. As we have already pointed out, none of the items under consideration by us can be treated as a ' reserve '.
24. In our opinion, the four items, namely, proposed dividends, provision (or taxation, credit balance of profit and loss account and the depreciation (that is, excess of book depredation over depreciation allowed in income-tax assessment), do not represent ' reserves ' and cannot be included in the computation of capital under the Super Profits Tax Act, 1963. We answer the question referred in the negative.
25. The Commissioner of Income-tax is entitled to his costs, which we assess at Rs. 200. Counsel's fee is assessed in the same figure.