R.S. Pathak, J.
1. This appeal by certificate granted by the Delhi High Court raises the question whether interest paid on arrears of case Under Section 3(3) of the U.P. Sugarcane case Act, 1956 is a permissible deduction Under Section 10 (2) (xv) of the Indian Income Tax Act, 1922.
2. The assessee is a public limited company engaged in the business of the manufacture and sale of sugar. In its income-tax return for the assessment year 1959-60 (the previous year being the period ending 30th June, 1958) the assessee claimed a deduction of Rs. 1,20,859/- paid as interest on arrears of case due under the U.P. Sugarcane case Act, 1956. The Income-tax Officer disallowed the claim, but the Appellate Assistant Commissioner held that the payment of interest constitute a permissible deduction and this view was affirmed by the Income Tax Appellate Tribunal. For the next assessment year 1960-61, (the previous year ending 30th June, 1959), the assessee claimed a sum of Rs. 1,83,731/- paid by way of interest on the arrears of case. The claim met with the same fortune, disallowed by the Income Tax Officer but upheld by the Appellate Assistant Commissioner and the Appellate Tribunal. At the instance of the Revenue, the Appellate Tribunal referred the following question of law to the Delhi High Court in respect of the assessment years 1959-60 and 1960-61 :
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in allowing the interest of Rs. 1,20,859/- and Rs. 1,83,731/- paid by the assessee on the arrears of case in the assessment years 1959-60 and 1960-61 respectively, as revenue expenditure
3. For the assessment year 1961-62 also the previous year of which ended 30th June, 1960 the assessee claimed a deduction of Rs. 2,00,439/- on account of interest paid by it on arrears of case. This claim also was rejected by the Income Tax Officer but allowed by the Appellate Assistant Commissioner and the Appellate Tribunal. The Revenue obtained a reference to the High Court on the question:
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in allowing the interest of Rs. 2,00,439/- paid by the assessee on the arrears of case, as revenue expenditure
4. The references were disposed of by the High Court by its judgment dated 25th October 1971. The questions were answered in the negative. The High Court took the view that the claim of the assessee did not satisfy the provisions of Section 10 (2) (iii) of the Indian Income Tax Act, 1922 because it was not interest paid on borrowed capital, and it did not fall within the scope of Section 10 (2) (xv) of the Act because it was paid by way of penalty for an infringement of the Act. The High Court than certified Under Section 66 (A) (2) of the Act that the cases were fit for appeal to this Court.
5. Learned counsel for the assessee has made no attempt to justify the claim Under Section 10(2) (iii) and we are, therefore, relieved of the necessity of examining the validity of the claim by reference to that provision. The case has been argued before us on the basis that it falls Under Section 10 (2) (xv).
6. The validity of the U.P. Sugarcane case Act, 1956 (the 'case Act') was challenged by the assessee and several other sugar manufacturing companies by petitions under Article 226 of the Constitution in the Allahabad High Court. The High Court admitted the writ petitions and granted an order suspending the operation of the Act. The High Court, on final hearing, dismissed the writ petitions. But subsequently on appeal this Court declared the case Act ultra vires on the ground that the Act fell beyond the competence of the State Legislature.
7. Thereafter, on 31st January, 1961, the President promulgated the U.P. Sugarcane case (Validation) Ordinance, 1961 validating the case imposed, assessed or collected by the Government of Uttar Pradesh during the period 26th January, 1950 to the date of the commencement of the Ordinance (3rd February, 1961). The ordinance was replaced by the U.P. Sugarcane case (Validation) Act, 19 (the 'Validation Act').
8. The question whether the interest paid by the assessee Under Section 3(3) of the Sugarcane Cess Act, 1956 can be allowed Under Section 10(2) (xv) of the Income Tax Act requires us to examine the relevant provisions of the Cess Act. The Act, as its long title states, is 'an Act to amend and consolidate the law relating to the imposition of cess on sugarcane intended for use, consumption in or sale to a factory'. The relevant provisions of Section 3 declare :
3. Imposition of cess-(1) The State Government may by notification in the official Gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein. .. ..(2) The cess imposed under Sub-section (1) shall be payable by the owner of the factory and shall be paid on such date and at such place as may be prescribed.
(3) Any arrear of cess not paid on the date prescribed under Sub-section (2) shall carry interest at 6 per cent per annum from such date to date of payment.
(4) The State Government may, for the purpose of assessment and collection of the cess, appoint officers and authorities and may also prescribe the manner in which the cess shall be assessed and collected.
(5) Where any person is in default in making the payment of the cess, the officer or authority empowered to collect the cess may direct that in addition to the amount of the arrears and interest a sum not exceeding 10 per cent thereof shall by way of penalty be recovered from the person liable to pay the cess.
(6) The officer or authority empowered to collect the cess may forward to the Collector a certificate under his signature specifying the amount of arrears including interest due from any person, and on receipt of such certificate the Collector shall proceed to recover the amount specified from such person as if it were an arrear of land revenue.
(7) Any sum imposed by way of penalty under Sub-section (5) shall be recoverable in the manner provided in Sub-section (6) for the recovery of the arrear of case.
Then follows Section 4 and it provides :
4. Penalties-If any person defaults in the payment of cess imposed under Sub-section (1) of Section 3, or, contravenes any provision of any rule made under this Act, he shall without prejudice to his liability therefore under Sub-section (5) of Section 3 be liable to imprisonment up to six months or to a fine not exceeding rupees five thousand or both and in the case of continuing contravention to a further fine not exceeding rupees one thousand for each day during which the contravention continues.
9. It is apparent that Section 3(2) requires the payment of cess on the date prescribed under the rules. Rule 4 of the U.P. Sugarcane Cess Rules, 1956 provides that the cess due on the sugarcane entering into the premises during the first fortnight of each calendar year must be deposited in the Government treasury by the twenty second day of that month and the cess due for the remainder of the month must be deposited before the seventh day of the next following month. If the cess is not paid by the specified date, then by virtue of Section 3(3) the arrear of cess will carry interest at the rate of six per cent per annum from the specified date to the date of payment. Section 3(5) is a very different provision. It does not deal with the interest paid on the arrears of cess but provides for an additional sum recoverable by way of penalty from a person who defaults in making payment of cess. It is a thing apart from an arrear of cess and the interest due thereon.
10. Now the interest payable on an arrear of cess Under Section 3(3) is in reality part and parcel of the liability to pay cess. It is an accretion to the cess. The arrear of cess 'carries' interest; if the cess is not paid within the prescribed period a larger sum will become payable as cess. The enlargement of the cess liability is automatic Under Section 3(3). No specific order is necessary in order that the obligation to pay interest should accrue. The liability to pay interest is as certain as the liability to pay cess. As soon as the prescribed date is crossed without payment of the cess, interest begins to accrue. It is not a penalty, for which provisions has been separately made by Section 3(5). Nor is it a penalty within the meaning of Section 4, which provides for a criminal liability and a criminal prosecution. The penalty payable Under Section 3(5) lies in the discretion of the collecting officer or authority. In the case of the penalty Under Section 4, no prosecution can be instituted unless, Under Section 5(1), a complaint is made by or under the authority of the Cane Commissioner or the District Magistrate. There is another consideration distinguishing the interest payable Under Section 3(3) from the penalty imposed Under Section3(5). Section 3(6) provides that the officer or authority empowered to collect the cess may forward to the Collector a certificate under his signature specifying the amount of arrears including interest due from any person, and on receipt of such certificate the Collector is required to proceed to recover the amount specified from such person as if it were an arrear of land revenue. The words used in Section 3(6) are 'specifying the amount of arrears including interest', that is to say that the interest is part of the arrear of cess. In the case of a penalty imposed Under Section 3(5), a separate provision for recovery has been made Under Section 3(7). Although the manner of recovery of a penalty provided by Section 3(7) is the same as the manner for recovery provided by Section 3(6) of the arrears of cess, the Legislature dealt with it as something distinct from the recovery of the arrears of cess including interest. In truth, the interest provided for Under Section 3(3) is in the nature of compensation paid to the Government for delay in the payment of cess. It is not by way of penalty. The provision for penalty as a civil liability has been made Under Section 3(5) and for penalty as a criminal offence Under Section 4. The Delhi High Court proceeded entirely on the basis that the interest bore the character of a penalty. It was, according to the learned Judges 'penal interest'. The learned Judges failed to notice Section 3(5) and Section 4 and the other provisions of the Cess Act.
11. We have been referred by the Revenue to Mahabir Sugar Mills (P) Ltd. v. Commissioner of Income Tax, U.P. : 71ITR87(All) and Commissioner of Income-Tax West Bengal v. A.K. Das : 77ITR31(Cal) but in those two cases the Delhi High Court and the Calcutta High Court respectively were concerned with a claim to deduction on account of penalty paid Under Section 3(5) of the Cess Act. Reliance was also placed on Commissioner of Income-Tax v. Oriental Carpet . In that case, the High Court of Punjab and Haryana laid down that interest paid by an assessee on account of delay in payment of the provisional demand of tax is not a permissible deduction Under Section 36(1)(iii) and Section 37 of the Income Tax Act. The learned Judges observed that the liability to tax, although arising out of a business activity, could not be said to be a liability related to the assessee's business. It is not necessary for us to express any opinion on the decision. The case is distinguishable because we are concerned with a particular statutory scheme enacted in Sections 3 and 4 of the Cess Act before us. Our attention has also been invited to Suraya Sugar Mills (P) Ltd. v. Commissioner of Income-Tax (1979) 116 I.T.R.367 where a Full Bench of the Allahabad High Court has held that the payment of interest Under Section 3(3) of the U.P. Sugarcane Purchase Tax Act, 1961 is a penal liability which accrues on an infraction of the law.' Section 3(3) of the U.P. Sugarcane Purchase Tax Act, 1961 does seem to be in pari materia with Section 3(3) of the Cess Act. But we think we, should resist the blandishment to sit in judgment over that decision when it is not in appeal before us. We are concerned solely with the nature of the liability to pay interest Under Section 3(3) of the Cess Act. A court should be slow to succumb to the temptation of deciding questions on the construction of a statute not directly before it.
12. In our opinion, the interest paid Under Section 3(3) of the Cess Act cannot be described as a penalty paid for an infringement of the law. As that is the only ground on which the Revenue resists the claim of the assessee to a deduction of the interest Under Section 10(2)(xv) of the Income-Tax Act, the assessee is entitled to succeed. There is no dispute that the payment of interest represents expenditure laid out wholly or exclusively for the purpose of the business. There is also no dispute that it is in the nature of revenue expenditure.
13. In the result, the appeal is allowed, the judgment dated 25th October, 1971 of the Delhi High Court is set aside and the question referred by the Income Tax Appellate Tribunal are answered in the affirmative, in favour of the assessee and against the Revenue. The assessee will be entitled to its costs of these appeals.