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Commissioner of Income-tax Vs. Patiala Sales Corporation Pvt. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberIncome-tax Reference No. 53 of 1966
Judge
Reported in[1970]77ITR443(P& H)
ActsIncome Tax Act, 1922 - Sections 2(11)
AppellantCommissioner of Income-tax
RespondentPatiala Sales Corporation Pvt. Ltd. and anr.
Appellant Advocate D.N. Awasthy and; B.S. Gupta, Advs.
Respondent Advocate S.C.Manchanda,; K.L. Kapoor and; Raj Kumar Aggarwal,
Cases ReferredIn Satya Narain Bagla v. Commissioner of Income
Excerpt:
.....of fact, the assessee's appeal was accepted, and the order under section 34 in respect of the assessment year 1953-54 was set aside leaving it open to the income-tax officer to take proper action for assessing the income in question in the assessment year 1954-55. on further appeal by the income-tax officer to the income-tax appellate tribunal, the finding of fact recorded by the appellate assistant commissioner was confirmed in the following words :as the respondent-company admittedly accounted for this dividend of rupees one lakh (net) in its books of accounts for the previous year ended on august 31, 1953, we are of the opinion that it satisfied the condition laid down in sub-clause (a), for enabling it to have the option given in that sub-clause (a).'4. on the basis of the..........question of law referred to us, reads as follows:' 'previous year' means-- (i) in respect of any separate source of income, profits and gains-- (a) the twelve months ending on the 3lst day of march next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of march, then, at the option of the assessee, the year ending on the date to which his accounts have been so made up :.....' 6. the only argument which had been advanced on behalf of the revenue before the tribunal was that the assessee was not entitled to exercise the option given to him by the above-quoted provision unless he maintained separate books of account for.....
Judgment:

R.S. Narula, J.

1. The circumstances in which the following question has been referred to this conrt by the Income-tax Appellate Tribunal (Delhi Bench 'C') at the instance of the Commissioner of Income-tax, Jammu & Kashmir, Punjab, Himachal Pradesh, Patiala, relating to the interpretation of the definition of 'previous year' contained in Sub-clause (a) of Clause (i) of Sub-section (11) of Section 2 of the Indian Income-tax Act, 1922 (11 of 1922) (hereinafter called 'the Act'), may first be narrated :

'Whether, on the facts and in the circumstances of the case, the income from dividend amounting to rupees one lakh (net) was liable to be included in the assessee's total income for the assessment year 1953-54 ?'

2. Messrs. Patiala Sales Corporation Private Ltd., Rajpura (since dissolved), hereinafter called the assessee, showed in their books of account relating to the assessment year 1954-55, a net income of rupees one lakh (coming to Rs. 1,35,573 on being grossed up) on account of dividend received by themfrom Messrs. Cement Distributors Ltd., declared by the said company at its general meeting held on October 29, 1952. In the income-tax return filed by the assessee for the assessment year 1954-55, this item of income of rupees one lakh was included. At the time of assessment of income for the assessment year 1954-55, the Income-tax Officer excluded this item of income on the ground that it had accrued from other sources, and, therefore, fell to be considered in the previous year ending August 31, 1952, i.e., for the assessment year 1953-54. Since assessment for the previous year ending August 31, 1952, had already been completed, proceedings were initiated against the assessee under Section 34 of the Act, for subjecting the above-mentioned dividend income of rupees one lakh to tax. By his order, dated December 5, 1961, the Incoms-tax Officer, Companies Circle, Patiala, assessed the income in question under the head 'Other sources' and brought it to tax in the assessment year 1953-54. On January 8, 1962, the assessee appealed against the order under Section 34. The appeal was accepted by the order of the Appellate Assistant Commissioner of Income-tax, Patiala Range, Patiala, dated February 1, 1963 (annexure 'B' to the statement of case). The relevant finding of fact was recorded by the Appellate Assistant Commissioner in the following words :

'According to the profit and loss account and balance-sheet filed by the appellant for the assessment year 1954-55, the dividend income was credited to the profit and loss account and the net income as per profit and loss account was also shown in the balance-sheet. Thus, the appellant maintained accounts for the year ending August 31, 1953, in respect of this dividend income, the assessment year for which was 1954-55. As such the assessment on the same income in the year 1953-54 is not justified.'

3. On the basis of the above-quoted finding of fact, the assessee's appeal was accepted, and the order under Section 34 in respect of the assessment year 1953-54 was set aside leaving it open to the Income-tax Officer to take proper action for assessing the income in question in the assessment year 1954-55. On further appeal by the Income-tax Officer to the Income-tax Appellate Tribunal, the finding of fact recorded by the Appellate Assistant Commissioner was confirmed in the following words :

'As the respondent-company admittedly accounted for this dividend of rupees one lakh (net) in its books of accounts for the previous year ended on August 31, 1953, we are of the opinion that it satisfied the condition laid down in Sub-clause (a), for enabling it to have the option given in that Sub-clause (a).'

4. On the basis of the above-quoted finding, the Tribunal held that the Appellate Assistant Commissioner was justified in annulling the assessment of income of the above-mentioned item in the course of assessment of incomefor the accounting year ending August 31, 1952. This led to the present reference at the instance of the Commissioner of Income-tax.

5. Sub-clause (a) of Clause (i) of Sub-section (11) of Section 2 of the Act, which alone is relevant for deciding the question of law referred to us, reads as follows:

' 'Previous year' means--

(i) in respect of any separate source of income, profits and gains--

(a) the twelve months ending on the 3lst day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then, at the option of the assessee, the year ending on the date to which his accounts have been so made up :.....'

6. The only argument which had been advanced on behalf of the revenue before the Tribunal was that the assessee was not entitled to exercise the option given to him by the above-quoted provision unless he maintained separate books of account for the separate source of income in respect of which he wanted to exercise the option. That argument, which was not accepted by the Tribunal, was again sought to be pressed before us by Mr. D. N. Awasthy. When, however, my lord the Chief Justice asked Mr. Awasthy to point out the provision of law which required the maintenance of separate books of account for each separate source of income in order to entitle the assessee to exercise the option in question, Mr. Awasthy could not press the point any further, and contented himself by submitting that tte only requirement of law for enabling an assessee to exercise the option in question is that the income from a separate source must be accounted for as a separate item in the books of account, and should be brought into the profit and loss account as an income from a separate source. According to counsel for the revenue the question referred to us must be answered against the assessee as, (i) separate accounts in respect of the dividend income were lacking, and (ii) the assessee had not in fact exercised any option. On the first point the revenue must fail in view of the findings of fact arrived at by the Appellate Assistant Commissioner and confirmed by the Tribunal in their respective orders, the relevant portions of which have already been quoted verbatim in an earlier part of this judgment. Mr. Awasthy contended that what in fact existed in this case was a mere entry relating to the dividend income and that a mere entry could not be called an account. On the tacts detailed in the statement of the case, to which no exception was taken either before the Tribunal or even before us, it is clear that the relevant accounts relating to the dividend income existed in the assessee's books of account for the accounting period ending August 31, 1953, and the said income had been brought into theprofit and less account, and the balance-sheet filed by the assessee for the assessment year 1954-55. The Appellate Assistant Commissioner found as a fact that the assessee had maintained the accounts for the year ending August 31, 1953, in respect of the dividend income, the assessment year for which was 1954-55. This finding of fact was not disturbed by the Tribunal, and was in fact affirmed by the Tribunal in somewhat different language. It is not open to the revenue to make any submissions on an assumed state of affairs contrary to the findings of fact mentioned above, by which the revenue is bound as much as the assessee.

7. None of the following cases to which Mr. Awasthy referred is relevant for deciding the question before us : Sobhag Mal Lodha v. Commissioner of Income-tax, [1967] 63 I.T.R. 424 (All.), Bhailal Tribhovandas & Co. v. Commissioner of Income-tax, [1968] 68 I.T.R. 136 (Guj), Baladin Ram v. Commissioner of Income-tax, [1969] 71 I.T.R. 427 (S.C.).and Bishan Dutt v. Commissioner of Income-tax, [1960] 39 I.T.R. 534 (All.).

8. In Sobhag Mal Lodha's case, a Division Bench of the Allahabad High Court held that within the same head of income, there can be various sources, and Section 2(11) defines the 'previous year' with reference to sources of income and not heads of income. There is no quarrel with that proposition of law, but it does not help in deciding the matter before us. The Allahabad High Court further held in that case that, even under the same head, there can be two sources, each of which would provide a different source of income ; and it is always open to an assessee to have one previous year for one source of business income, and another previous year for the second source of business income, even though both the sources may fall under the same head, i.e., 'business'. In the present case, there is no dispute about the fact that the source of dividend income was separate from the source of the other income of the assessee.

9. In the case of Bhailal Tribhovandas & Co., the Gujarat High Court held that 'making up of accounts' in the ordinary commercial sense means ascertaining the profit or loss accruing in the particular business as of a particular date. According to the findings of fact recorded in the present case, to which reference has already been made, the profit iu question which accrued to the assessee by the dividend income was ascertainable and was in fact ascertained as of a particular date and had been brought into the profit and loss account and the balance-sheet of the assessee, and it cannot, therefore, be argued that accounts had not been made up to the date on which the profit accrued.

10. Baladin Ram's case, decided by the Supreme Court, and Bishan Dutt's case, decided earlier by the Allahabad High Court and referred to by the Supreme Court in the judgment of their Lordships in Baladin Ram's case,related to concealed income which had been found to have accrued to the assessee concerned from undisclosed sources. As held by a Division Bench of this court sitting in circuit at Delhi, to which judgment I was a party, in Hukam Chand Ulfatrai v. Commissioner of Income-tax, [1967] 64 I.T.R. 619 (Punj.) there can be no previous year in respect of income from an undisclosed source other than the financial year next preceding the assessment year. Cases relating to income from undisclosed sources do not, therefore furnish any analogy to cases of the present type. It was pointed out by a Division Bench of the Allahabad High Court in Shiv Narain Sarraff v. Commissioner of Income-tax, [1966] 62 I.T.R. 711 (All.).that an undisclosed source can never be said to be a 'particular source' within the meaning of the proviso to Section 2(11)(i)(a) of the Act. In that context it was further observed by the learned judges that just as one known source differs from another known source, so also one undisclosed source may differ from another undisclosed source, and that two incomes, the sources of which are not known, may be from the same undisclosed source, but they also may be from two undisclosed sources. That consideration cannot, however, apply to income from a disclosed and known source which has been duly brought to account by an assessee. In Satya Narain Bagla v. Commissioner of Income-tax, [1968] 67 I.T.R. 240 (All.) it was held that it is no doubt true that for a separate source of income, an option of a different previous year can be exercised, and the condition with which compliance is necessary to entitle the exercise of such option is that separate accounts for that particular source should have been maintained for such year. In the present case, the accounts had been made up to a date other than the 31 st day of March (those had been made in the present case up to the 31st of August, 1953), and the assessee could opt for a previous year other than the financial year in respect of the income in question. We have no hesitation in holding that for entitling an assessee to exercise an option under Sub-clause (a) of Clause (i) of Sub-section (11) of Section 2 of the Act, in respect of any separate source of income, it is not necessary for him to have either a separate book of account in respect of the income from the separate source or even to have a separate part of the book confined to income from that source. It is enough if account in respect of the separate source of income has been maintained by the assessee, and that account has been made up to a date within the twelve months ending on the 31st day of March next preceding the year for which assessment is to be made in respect of a year ending on any date other than the 31st day of March, to entitle an assessee to exercise the option in question for the first time in respect of the separate source.

11. Mr. Awasthy then argued that in fact the assessee had not exercisedany option in the present case. This is a question of fact which cannot bepermitted to be raised for the first time in this reference. It does not arise out of the order of the Tribunal, and was admittedly not raised at any stage before the income-tax authorities. Option is given by the above-quoted statutory provision to the assessee and not to the department. The assessee having exercised the option, the department had no way out except to assess the dividend income, in the income relating to the assessment year 1954-55 in the income-tax return for which year the assessee had returned the income. We are, therefore, unable to find any force in the submissions made by Mr. Awasthy.

12. For the foregoing reasons, we would answer the question referred to above in the negative, i.e., in favour of the assessee. The costs of the assessee, which are fixed at Rs. 250, shall be borne by the revenue.

Mehar Singh, C.J.

13. I agree.


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