1. This is a reference at the instance or the Commissioner of Income-tax, Kerala, by the Income-tax Appellate Tribunal, Madras Bench, under Section 256(1) of the Income-tax Act, 1961. The assessment year concerned is 1963-64; and the ac-counting period the Samvat year 2018. The question referred is:
'Whether on the facts and in the circumstances of the case the assesses was an exporter entitled to the rebate contemplated in Section 2(5)(i) of the Finance Act. 1963?'
2. Section 2 (5) (i) of the Finance Act, 1963, provides that an assessee (other than a company)
'whose total income includes any Profits and gains derived from the export of any goods or merchandise out of India, shall be entitled to a deduction, from the amount of income-tax and super-tax with which he is chargeable of an amount equal to the income-tax and super-tax calculated respectively at one-tenth of the average rate of income-tax and of the average rate of super-tax on the amount of such profits and gains included in the total income'
During the Samvat year 2018 the asses-see received a sum of Rs. 53,446/- by way of commission. That sum included a sum of Rs. 22,776/- which the assessee earned for his services in pursuance of Annexure A dated the 14th May 1959.
3. The assessee is not a company, and the sole question for determination is whether the sum of Rs. 22,776/- earned by the assessee in pursuance of Annexure A can be considered as 'profits and gains derived from the export of any goods or merchandise out of India' Annexure A is entitled an Agency Agreement. The clauses from that Agreement extracted in the order of the Appellate Tribunal and in the Statement of the Case read an follows:
'I The Agents undertake to effect the purchase of Tea from the Cochin Auctions or private sales for the Buyers in full accordance with the Buyers' instructions. In no case are the Agents to buy defective lea including mouldy, musty, cheesy, sour, and damaged tea or tea with foreign admixture, with foreign smell, and increased moisture.
XV. The Buyers, are to pay to the Agents an Agent's commission at the rateof 1/4 (one-fourth) per cent from the amount of the auction value of the goods purchased.
All expenses connected with the storing, marking, booping, gunnying, repairing (if necessary), delivery of the goods to the port, loading, export duties, Port Commissioner's toll, customs charges and insurance (after prompt) are to be borne by the Buyers (the schedule of the rates of the expenses is attached hereto).
XVI. Payment is to be effected by an irrevocable Letter of Credit opened by the Buyers in favour of the Agents with the Central Bank of India Ltd., Cochin, for the full F. O. B. value of the goods against the Agents' and Brokers' invoices, full set of clean on board Bills of Lading and lot-by-lot specifications for the tea shipped, according to the form presented by the Buyers.
The Buyers undertake to open the Letter of Credit upon receipt of the documents showing the quantities, prices and preliminary total F. O. B. amount of the tea purchased.
In case of any delay in shipment preliminary payment of the actual value of the goods is to be made on prompt date against invoices, godown warrants and specifications.'
For the sake of completeness the entire Agreement is reproduced as an Appendix to this judgment. (Not reproduced as not necessary for reporting--Ed.)
4. We find it difficult to agree with the Appellate Tribunal and hold that the commission earned by the assesses in pursuance of Annexure A was profits and Rains derived from the export of tea out of this country. The commission paid to the assessee under the Agreement, as we see it, is not derived from the export of tea from out of India but from the services rendered by the assessee under that Agreement. Profits and gains from the export of goods can only mean the excess of the export price over the cost to the exporter Inclusive of the cost of services like those performed by the assessee in pursuance of 'Annexure A.
5. The Tea (Distribution and Export) Control Order, 1957, provided that no person shall export tea except under a licence and in accordance with the provisions of that Order. The assessee had the requisite licence, and Messrs. V/O 'Prodintorg' did not have such a licence. But this does not mean anything important as the Order also provided that where an agent had taken out a licence his overseas principles need not take out a licence as exporters under that Order.
6. In Commr. ot Income-tax v. Kama-khya Naravan Singh, AIR 1949 P.C. 1, the Privy Council had to consider whether interest on arrears of rent payable in respect of land used for agricultural purposes was exempt from income-tax as being agricultural income within the definition of that phrase contained in Section 2 (1) of the Indian Income-tax Act, 1922. According to that definition 'agricultural income' meant.
'any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in British India or subject to a local rate assessed and collected by officers of the Crown as such'. The Privy Council said.
'In each case there was included in the assessment of income made upon the assessee interest in respect of arrears of rent payable for land which was used for agricultural purposes and was either assessed to land revenue or subject to a local rate. That interest had been paid. The interest was, their Lordships understand, payable in all cases by virtue of various statutes which prescribed that interest should be payable on rent in arrears. The point put baldly is therefore 'Is such interest, rent or revenue, derived from land?'
The word 'derived is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of nonpayment.
And rent is no(sic)and within the meaning of the definition. There is no commercial connexion between the interest and the rented land and an effective source--not land -- has become apparent.'
7. 'All income', said Isaacs A. C. J. in Federal Commr. of Taxation v. Clarke, (1927) 40 C. L. R. 246, 'is derived from something and by someone' For the assessee to succeed we should be able to say that that 'something' in this case is the export of tea. We are not able to do so, and it follows that the question referred has to be answered in the negative, that is, against the assessee and in favour of the Department.
8. Judgment accordingly. No costs
9. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be sent to the Appellate Tribunal as required by Sub-section (1) of Section 260 of the Income-tax Act. 1961. Answered against assessee.