Skip to content


Commissioner of Income-tax Vs. K.S.P. Shanmugavel Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case No. 397 of 1979 (Reference No. 240 of 1979)
Judge
Reported in[1985]153ITR596(Mad)
ActsIncome Tax Act, 1922 - Sections 25(3); Excess Profits Tax Act, 1940 - Sections 17
AppellantCommissioner of Income-tax
RespondentK.S.P. Shanmugavel Nadar and ors.
Appellant AdvocateJ. Jayaraman and ;Nalini Chidambaram, Advs.
Respondent AdvocateA.K. Lakshminarayanan, Adv.
Cases ReferredBhansali v. State of Madras
Excerpt:
.....taxation - delay in filing appeal - section 25 (3) of income tax act, 1922 and section 17 of excess profits tax act, 1940 - assessee firm carried on business - business discontinued and thereafter firm dissolved - relief granted under section 25 (3) - assessee also demanded consequential relief under excess profits tax act - whether tribunal right in holding that assistant commissioner correct in condoning delay in filing appeal - section 17 enables appellate authority to admit appeal after expiry of 45 days on ground of valid reasons for not presenting within prescribed period - held, assistant commissioner right in condoning delay. (ii) relief - whether relief claimed by assessee under section 25 (3) in income tax proceedings will automatically enable him to claim non-liability..........circumstances of the case, the appellate tribunal was justified in holding that the levy under the excess profits tax act cannot be upheld ?' 2. the assessee is a partnership firm carrying on business in the manufacture and sale of salt at tuticorin from 1924. on february 6, 1944, the business was discontinued and some time later the firm itself was dissolved. the assessee filed its income-tax return for the assessment year 1944-45 corresponding to the accounting period from february 6, 1943, to february 6, 1944, disclosing an income of rs. 65,012. for the corresponding chargeable accounting period, it filed a return under the excess profits tax act, 1940. on september 15, 1945, the income-tax assessment was made computing a total income of rs. 68,848. on the same day, the excess profits.....
Judgment:

Ramanujam, J.

1. At the instance of the Revenue, the following two questions have been referred to this court for its opinion by the Income tax Appellate Tribunal :

'(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the Appellate Assistant Commissioner was correct in condoning the delay in filing the appeal

(2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the levy under the Excess Profits Tax Act cannot be upheld ?'

2. The assessee is a partnership firm carrying on business in the manufacture and sale of salt at Tuticorin from 1924. On February 6, 1944, the business was discontinued and some time later the firm itself was dissolved. The assessee filed its income-tax return for the assessment year 1944-45 corresponding to the accounting period from February 6, 1943, to February 6, 1944, disclosing an income of Rs. 65,012. For the corresponding chargeable accounting period, it filed a return under the Excess Profits Tax Act, 1940. On September 15, 1945, the income-tax assessment was made computing a total income of Rs. 68,848. On the same day, the excess profits tax assessment was completed determining the chargeable profits at Rs. 1,85,581, which figure was arrived at by adding to the income as computed in the income-tax assessment two sums requiring to be included in the chargeable profits as a result of the order passed under s. 10A of the Excess Profit Tax Act. No appeal was filed by the assessee against the income-tax assessment order or against the excess profits tax assessment order. However, on August 18, 1948, nearly three years after the said assessments, he filed a petition to the ITO claiming relief under s. 25(3) of the Indian I.T. Act, 1922, on the ground that the business of manufacture and sale of salt carried on by the assessee-firm was only a continuation of its grocery business on which tax has been charged under the 1918 Act. The ITO rejected the said claim on the ground that the business of manufacture and sale of salt was not a continuation of the grocery business of the firm, but was a separate business altogether. On appeal, the AAC, however, granted relief under s. 25(3) on February 16, 1963, accepting the assessee's case that the business of manufacture and sale of salt was a continuation of its grocery business, that the said grocery has suffered tax under the I.T. Act, 1918, that, therefore, the assessee-firm is entitled to exemption from tax on the entire profits for the accounting period relevant to the assessment year 1944-45 and that since the income for the assessment year 1944-45 was not chargeable to tax, the Excess Profits Tax Act would have no application. The Revenue took the matter in appeal to the Income-tax Appellate Tribunal. But the Tribunal confirmed the order of the AAC on October 8, 1964. After the disposal of the appeal by the AAC on February 16, 1963, the ITO passed an order giving effect to the order of the AAC deleting from the assessment a sum of Rs. 31,574 in respect of which relief was granted under s. 25(3) of the Act by the AAC.

3. Thereafter, the assessee, on October 28, 1963, addressed a letter to the ITO contending that since the claim under s. 25(3) has been allowed, the consequential relief under the Excess Profits Tax Act should also be given. No action was taken by the ITO on the said letter. After the Appellate Tribunal upheld the order of the AAC allowing relief under s. 25(3), the assessee filed a petition to the commissioner seeking consequential relief under the Excess Profits Tax Act. On July 15, 1965, the Commissioner informed the assessee that no relief under the Excess Profits Tax Act could be given. The assessee then sent a petition to the Secretary, Ministry of Finance, Department of Revenue, which was also turned down on January 23, 1967. Within 45 days from the date of the communication of that rejection, the assessee filed an appeal on February 23, 1967, before the AAC contending that as a result of the relief given under s. 25(3), the consequential relief under the Excess Profits Tax Act should also be given, with a request for condonation of the delay in filing that appeal. The AAC condoned the delay and entertained the appeal. Then he disposed of the appeal on merits by holding that since the entire income was exempt from income-tax, there can be no levy under the Excess Profits Tax Act. Aggrieved by the said order of the AAC the Revenue filed an appeal before the Tribunal contending (1) that the AAC was not justified in condoning the delay of nearly 21 years and entertaining the appeal, (2) the AAC was not justified in holding that there was no liability to pay excess profits tax. The Tribunal held that is no period of limitation in such cases where the assessee claims a relief under the Excess Profits Tax Act on the basis of an exemption granted under s. 25(3) by the AAC and, therefore, the AAC was justified in entertaining the appeal and that the decision of AAC that as the entire profits of the chargeable accounting period are exempt from income-tax by the virtue of s. 25(3), the Excess Profits Tax Act can have no application. Aggrieved by the said decision of the Tribunal, the Revenue has come before us in this reference.

4. On the question of delay in filing the appeal before the AAC under the Excess Profits Tax Act, it is contended on behalf of the Revenue that the time-limit for filing an appeal under s. 17 of the Excess Profits Tax Act against the order of assessment had long before expired, that the appeal has been entertained after a considerable number of years and that such delay cannot legally be condoned. The learned counsel for the Revenue also questions the correctness of the view expressed by the Tribunal that in this case no question of limitation could arise, for the relief to which the assessee will be entitled under the Excess Profits Tax Act follows the relief the assessee got under the I.T. Act. The learned counsel for the assessee, however, contends that the assessee has been pursuing other remedies and it is only when he succeeded in getting relief under the I.T. Act, he can question the assessment under the Excess Profits Tax Act. The learned counsel for the assessee in support of the said submission refers to the decision in Singar Singh & Sons v. ITAT : [1965]58ITR626(All) . In that case, an application was filed by the assessee on April 2, 1956, before the Tribunal requesting it to rehear the appeals on the ground that it had not considered and disposed of a point raised before it. The Tribunal held that the said application was bared by time under s. 35 of the Indian I.T. Act, 1922, as the period of four years prescribed under that section had expired. After taking various other steps, the assessee filed a writ petition on November 4, 1961, for a mandamus to the Tribunal to consider the point which inadvertently remained undisposed of. While disposing of the suit writ petition, the court held that if the petitioner considered rightly or wrongly that the remedy lay somewhere else and diligently pursued that remedy, it is not possible to hold him guilty of such laches as would prevent the High Court from giving him an opportunity of obtaining a decision of the Tribunal on the ground which was urged and pressed but not disposed of by it. We do not see how the said decision will help the assessee in this case. There it was a question of invoking the writ jurisdiction of the court where the court has a discretion to entertain a writ petition provided the petitioner is a nor guilty of laches or undue delay. The considerations which will weigh with the court while exercising the writ jurisdiction may not be applicable to the AAC while exercising his appellate power under s. 17 of the Excess Profits Tax Act. The said s. 17 enables the AAC to entertain an appeal within thirty days of the service of notice of such order. In this case, the assessee filed an appeal before the AAC for cancellation of the assessment dated September 30, 1945, with reference to the assessment year 1944-45. That appeal was entertained and the original order of the Excess Profits Tax Officer has been cancelled and he has been directed to refund the amount of tax assessed. the question is whether an appeal could be entertained by the AAC under s. 17 against the order of assessment made on September 15, 1945, in the guise of an appeal against a letter sent by the ITO to the assessee. The AAC acts as a creature of the statute and he cannot exercise the appellate powers outside the statutory provisions in s. 17 which generally enables the AAC to entertain an appeal against an order of assessment under the Excess Profit Tax Act within 45 days of the receipt of the notice of demand relating to the assessment. It also provides for an appeal against any order of refusal by the Excess Profits Tax Officer to grant relief under that Act. Thus, s. 17 not only provides for an appeal against the original order of assessment but also against any refusal be the ITO to grant relief. In this case, the assessee sought relief under the Act by filing a petition before the Excess Profits Tax Officer on October 25, 1963. After the rejection of the said application by the Excess Profits Tax Officer refusing to give relief consequent on the income-tax assessment being set aside, the assessee could have filed an appeal before the AAC in time, that is, within 45 days from the said rejection. But in this case the assessee appears to have approached the Commissioner of Income-tax and also the Secretary, Ministry of finance, for relief and all those applications having been turned down, the assessee filed before the AAC an appeal with a petition for condoning the delay on the ground that he has been prosecuting other remedies and the time taken in bona fide prosecuting the other remedies should be taken into account for the purpose of exercising his discretion for the condonation of the delay. In support of this submission, reference is made to the decision of a Division Bench of this court in Bhansali v. State of Madras : AIR1968Mad373 . In that case, an appeal under s. 31 of the Tamil Nadu General Sales Tax Act was filed beyond time with a petition for condonation of the delay in filing the appeals on the ground that the assessee has been prosecuting some writ proceedings and the time taken in those proceedings should also be taken into account while exercising the courts discretion. The court accepted the said contention and observed that in deciding the question whether the appellant had sufficient cause for not presenting the appeal within the time, the most relevant factor to be taken into account is whether the party concerned has bona fide prosecuted some other proceedings, because of which delay has occurred in filing the appeal and that, therefore, if a party had bona fide prosecuted other remedies, that should be taken into account while exercising the court's direction. As already stated, s. 17 of the Excess Profits Tax Act not only provides for an appeal against an order to assessment to excess profits tax, but also against an order refusing to grant relief and that section enables the appellate authority to admit an appeal after the expiration of the period of 45 days if it is satisfied that the appellant had sufficient cause for not presenting it within the period. Since, in this case, the assessee has been prosecuting other remedies, the time taken by those proceedings should naturally be taken while determining the question whether the assessee had sufficient cause for not presenting the appeal in time. Therefore, the learned counsel for the Revenue may not be right in his submission that the appeal filed under s. 17 is an appeal against the original order of assessment under the Excess Profits Tax Act which was passed about 20 years ago, as we find that the appeal is one against an order of rejection of relief by the assessing authority. Thus, though we are not inclined to agree with the Tribunal that there is no question of limitation in such cases, we are inclined to hold that the AAC is right in condoning the delay and entertaining the appeal in the circumstances of the case. Therefore, question No. 1 is answered in the affirmative and against the Revenue.

5. Coming to the second question, however, we find that the Tribunal has not come to the right conclusion. It has proceeded on the basis that as the assessee had got exemption under s. 25(3) of the Indian I.T. Act, 1922, there cannot be any assessment under the Excess Profits Tax Act and, therefore, the excess profits tax assessment should be cancelled. Thus, the view taken by the Tribunal is that the excess profits tax assessment is conditional on the tax being leviable under the I.T. Act. It cannot be disputed that the I.T. Act and the Excess Profits Tax Act are two independent statutes, and the operation of one does not depend on the other. The charging section and the procedure laid down for enforcing the charge in both the statutes will have independent operation. Any impact of one statute on the other will have to depend on the express provisions found in either of the statutes. In one of the earliest cases in Haji Salar Bux v. CIT : [1952]21ITR449(All) , the impact of the provisions of the I.T. Act on the Excess Profits Tax Act was considered. There, a deduction of Rs. 4,500 was allowed in the assessment of income-tax under the third proviso to s. 4(1) of the Indian I.T. Act, 1922. The assessee contended that the same allowance is to be granted while computing the profits chargeable under the Excess Profits Tax Act, 1940. The court held that the third proviso to s. 4 of the I.T. Act cannot be taken as a proviso to s. 5 of the Excess Profits Tax Act, that s. 5 of the Excess Profits Tax Act has got its own provisos and that a reference to the various provisions of the Excess Profits Tax Act would indicate that it was intended to be a complete Act, for example, the rules for computation of profits for the purpose of excess profits tax are given in Schedule I to the Act providing for the determination of the profits in accordance with the First Schedule and that in the First Schedule there is no mention of any deduction being granted in accordance with the third proviso to s. 4(1) of the I.T. Act and, therefore, on the fact that the assessee got an allowance under the third proviso to s. 4(1), the same allowance cannot be claimed while computing chargeable profits under s. 5 of the Excess Profits Tax Act. That it is clear that if certain income is not taxed under the I.T. Act, that will not automatically result in the said income being outside the Excess Profits Tax Act. It is no doubt true, s. 5 of the Excess Profits Act applies to every business of which any part of the profits made during the chargeable accounting period is chargeable to income-tax by virtue of the provisions of s. 4 of the Indian I.T. Act, 1922. But that section cannot be construed as imposing a liability under the Excess Profits Tax Act only in cases where income-tax is actually levied. section 5 contemplates that if the profits of any business is chargeable to income-tax under s. 4 of the Indian I.T. Act, 1922, then the charge under s. 4 of the Excess Profits Tax Act, 1940, will straightway arise without reference to the question as to whether a particular amount of tax is actually payable or paid under the I.T. Act. According to the learned counsel for the Revenue, if the income of a business is chargeable to income-tax, that is sufficient to attract the provisions of the Excess Profits Tax Act whether the charge under the I.T. Act has or has not resulted in any actual amount of liability to income-tax. Thus, the mere fact that a particular income was not actually taxed under the I.T. Act in view of certain exemptions or deductions provided under the said Act, it cannot be said that the said income should automatically be excluded from consideration while computing the chargeable profits under the Excess Profits Tax Act. It is no doubt true that in this case the assessee was held entitled to the relief under s. 25(3) but that relief was given to avoid the same income being taxed twice, once under the 1918 Act and again under the 1922 Act. The fact that relief has been given in respect of an income under s. 25(3) will not lead to the inference that the business of the assessee is not chargeable to excess profits tax. The relief under s. 25(3) is granted to the assessee only on the basis that the income having been assessed under the 1918 Act, it cannot again be assessed under the 1922 Act. The grant of relief, therefore, proceeds on the basis that the income is chargeable under the I.T. Act but it cannot be charged twice, once under the 1918 Act and again under the 1922 Act. In view of the specific language used in s. 5 of the Excess Profits Tax Act that this Act shall apply to every business of which any part of the profits made during the chargeable accounting period is chargeable to income-tax by virtue of s. 4 of the Indian I.T. Act, 1922, the conclusion is inescapable that the Excess Profits Tax Act is applicable to the business of the assessee as its profits during the chargeable accounting period is chargeable to income-tax by virtue of s. 4. It cannot, in any sense, be said that the profits of the assessee's business is not chargeable to income-tax under the 1922 Act. On the facts of this case, it can be said that the profits of the assessee's business are chargeable under the Indian I.T. Act, 1922, but by virtue of the special provision contained in s. 25(3) introduced to avoid double taxation in respect of the same income, there is no actual tax liability. The chargeability to income-tax cannot be confused with actual liability to pay an amount of tax. Admittedly, there is a computation of the total income of the assessee under the Indian I.T. Act, 1922, and it is only on the basis of that computation the assessee got the relief under s. 25(3). The computation under the I.T. Act is only on the basis that the assessee is chargeable to tax under the Indian I.T. Act, 1922, and the fact that the computation has resulted in 'no tax' cannot be construed as if there is no chargeability to income-tax under the Indian I.T. Act, 1922. It cannot be disputed that the computation of total income under the I.T. Act is not the same as the computation of the chargeable profits under the Excess Profits Tax Act. Even if there has been a computation of total income under under the I.T. Act, the Excess Profits Tax Officer can make a recomputation of the total income for the purpose of computation of chargeable profits under the Excess Profits Tax Act. As has been held in Coimbatore Salem Transports Ltd. v. CIT : [1974]97ITR281(Mad) , the definition of 'chargeable profits' in s. 2(5) of the Super Profits Tax Act, 1963, does not prevent the assessing authority under the Act from computing the total income under the I.T. Act, if found necessary, that though the total income of an assessee as computed under the I.T. Act should normally be the 'chargeable profits' for assessment under the Super Profit Tax Act, in cases where a recomputation is necessary either as a result of a mistake in the assessment under the I.T. Act or for the any other justifiable reason, the ITO who makes the assessment under the super Profits Tax Act can recompute the total income under the I.T. Act notwithstanding that the total income of the assessee has been earlier computed and assessed under the I.T. Act. Therefore, the fact that in the computation of income under the I.T. Act, the assessee has got relief under s. 25(3) does not mean that he is entitled to the same relief under the Excess Profits Tax Act. Unless a similar relief as the one under s. 25(3) has been provided for in the Excess Profits Tax Act, the Excess Profits Tax Officer need not take note of the relief granted for income-tax purposes for computation of chargeable profits under the Excess profits Tax Act. We, therefore, hold that the Tribunal was in error in holding that the relief obtained by the assessee under s. 25(3) of the I.T. Act in the income-tax proceedings will automatically enable him to claim non-liability to tax under the Excess Profits Tax Act. In this view, question No. 2 is answered in the negative and in favour of the Revenue. The Revenue will get the costs from the assessee. Counsel's fee Rs. 500.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //