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Baishno Das Kishori Lal Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberIncome-tax Reference No. 41 of 1962
Judge
Reported in[1972]84ITR85(P& H)
ActsIncome Tax Act, 1922 - Sections 17(3), 17(4) and 66(2)
AppellantBaishno Das Kishori Lal
RespondentCommissioner of Income-tax
Appellant Advocate C.L. Aggarwal, Adv.
Respondent Advocate D.N. Awasthy and; B.S. Gupta, Advs.
Excerpt:
.....226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - awasthy on behalf of the department, and find that though the order of reference as well as the order of the tribunal give arithmetical tables of calculation, it is not clear from these orders as to how precisely the different legal provisions have been applied in adopting the method of calculation......the super-tax payable by the assessee would be the super-tax which would have been payable on his total income, viz., rs. 77,295 as reduced by the amount of income brought into british india out of the past state profits, viz., rs. 27,229 (cc), i.e., the super-tax on rs. 50,066 (aa + bb) which amounts to rs. 3,762-6-0 multiplied by the fraction 77295/50066 77295/50066 . the super-tax payable by the,assessee, applying the provisions of section 17(4) alone would, therefore, be rs. 5,859. but the total income of the assessee in this case also included rs. 27,436 (bb), income which accrued to the assessee in indian states during the relevant assessment year and exempt from income-tax or super-tax according to section 14(2)(c). therefore, applying the provisions of section 17(3), the.....
Judgment:

1. The short question that requires determination in this reference under Section 66(2) of the Indian Income-tax Act is whether the method of computation adopted by the Tribunal is correct or the one adopted by the assessee is correct. The method adopted by the Tribunal is as follows :

'According to Section 17(4), Clause (a), the super-tax payable by the assessee would be the super-tax which would have been payable on his total income, viz., Rs. 77,295 as reduced by the amount of income brought into British India out of the past State profits, viz., Rs. 27,229 (CC), i.e., the super-tax on Rs. 50,066 (AA + BB) which amounts to Rs. 3,762-6-0 multiplied by the fraction 77295/50066 77295/50066 . The super-tax payable by the,assessee, applying the provisions of Section 17(4) alone would, therefore, be Rs. 5,859. But the total income of the assessee in this case also included Rs. 27,436 (BB), income which accrued to the assessee in Indian States during the relevant assessment year and exempt from income-tax or super-tax according to Section 14(2)(c). Therefore, applying the provisions of Section 17(3), the super-tax payable by the assessee would be further reduced as follows:

Rs. 5,859 (beingthe figure arrived at under section 17(4) multiplied by the

fraction

77,295-27,436

=

49,859

77,295

77,295

2. The method which the assessee insists should be followed is stated below:

(a) Super-tax on reduced income is calculated as under:British India income --------------------------Super-tax on 50,066. X British India + India Stateincome income= 3762 X 22630----- = 170050066 (b) Super-tax on total income is calculated as under :Tax on reduced income X Reduced income + Remittance income----------------------------------Reduced income= 1700 x 77295----- = 2625.'50056 3. When the matter came up before this court at an earlier stage, my Lord, the Chief Justice and Mr. Justice Khanna passed the following order:

' We have heard Mr. Aggarwal on behalf of the assessee and Mr. Awasthy on behalf of the department, and find that though the order of reference as well as the order of the Tribunal give arithmetical tables of calculation, it is not clear from these orders as to how precisely the different legal provisions have been applied in adopting the method of calculation. Both the counsel are agreed that some assumptions have been made in the two orders but there is a difference between them with regard tptthe actual assumption. In the circumstances we agree with Mr. Awasthy that the reference may be sent back to the Tribunal with the direction that the point of controversy may be made more clear in terms of the different provisions of law having bearing on the subject. We order accordingly.' 4. Thereafter, the supplementary statement of the case was submitted by the Tribunal and that is how the matter has been placed before us.

5. On the main facts there is no dispute. The assessee is a Hindu undivided family carrying on. timber business. It does work in the name and style of M/s. Baishno Das Kishori Lal Bhalla at Beas, Phillaur and Abdullapur. Formerly these places were in British India. They also carry on their business at Dhilwan and Doraha. Both these places were situate in the different Indian States. Their head office was at Phillaur in British India. The total income of the assessee during the relevant previous year for the assesssment year 1948-49 was Rs. 77,295. The break up of this figure is as follows :

Rs.

(i) BritishIndian income

22,630

(ii) Income accruing in IndianStates during the relevant previous year

27.436

(iii) Income which had accrued'in the Indian States before the relevant previous year but which was subsequentlybrought into British India during the relevant previous year.

27,229Total

77,295 6. The dispute between the department and the assessee is about the quantum of super-tax payable. According to the department a sum of Rs. 3,747 is payable whereas according to the assessee the amount of Rs. 2,625 is payable.

7. The relevant provision under which the super-tax has to be calculated is Section 17, Sub-sections (3) and (4)(a) which read thus :

' 17 (3) Where there is included in the total income of any assessee any income exempted from tax under Clause (aa) or Clause (c) of Sub-section (2) of Section 14, or under Section 15B or under Section 15C, the supertax payable by the assessee shall be an amount bearing to the total amount of the super-tax which would have been payable on the total income had no part of it been so exempted the same proportion as the total income less the portion so exempted bears to the total income.

(4) Where any income exempted from tax under Clause (c) of Sub-section (2) of Section 14 which has been taken into account under Sub-section (2) or Sub-section (3) of this section as part of the total income of an assessee for the purpose of detei mining the income-tax or super-tax payable by him is in a subsequent year brought into or received in the taxable territories by the assessee and becomes chargeable with tax accordingly, the tax including super-tax payable by the assessee on his total income of that subsequent year shall be-

(a) the amount which bears to the total amount of the tax including super-tax which would have been payable on his total income as reduced by the amount of the income so brought into or received in the taxable territories had such reduced income been his total income the same proportion as his total income bears to such reduced income, or. . . .' 8. The principal question before us is whether calculation is to be made first under Sub-section (3) and then under Sub-section (4)(a) or first under Sub-section (4)(a) and then under Sub-section (3). After considering the language of the provision we are of the view that super-tax payable by the assessee has first to be determined under Section 17(4)(a) and once this is done and the rate of tax ascertained benefit of Sub-section (3) is to be given to the assessee to exclude super-tax payable on the State income at the determined average rate. Thus, the method adopted by the Tribunal is the correct one. We accordingly answer the following questions :

' (1) Is the mode of computation of super-tax as adopted by the Tribunal valid and in accordance with the provisions of Section 17 of the Indian Income-tax Act ?

(2) Whether on the facts and circumstances of the case the effect of Section 17(3) is to be given before proportionately increasing the super-tax under Section 17(4)(a) or after ?'

9. which have been referred for our opinion as under :

The first question is answered in the affirmative. The second question is answered as follows :

The effect of Section 17(3) is to be given after proportionately increasing the super-tax under Section 17(4)(a) of the Income-tax Act, 1922. 10. In the circumstances, we make no order as to costs.


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