1. The two questions that were referred to this court for determination were :
1. Whether the words "income arising in the taxable territories" in Section 4-A (c) of the Income-tax Act would also include agricultural income arising in taxable territories.
2. Whether the assessee was rightly assessed as a resident within the meaning of Section 4-A(c).
The answer to the second of these questions depends on that to the first, and what decides the first question is the interpretation of the word "income" in Section 4-A (c) the relevant portion of which runs :
"A company is resident in the taxable territories in any year ..... if its income arising in the taxable territories in that year exceeds his income arising without the taxable territories in that year, account not being taken in either case of in-come chargeable under the head 'capital gain'".
2. The Departmental authorities, and the Tribunal concurring with them, held that the assessee was resident and ordinarily resident in India for purposes of assessment to income-tax in the assessment year 1951-52. In computing the income that arose within the taxable territories in the relevant year the Tribunal took into account a sum of Rs. 4,40,341/- which constituted agricultural income as defined by Section 2(1) of the Income-tax Act If that were ignored the taxable income that arose to the assessee within the taxable territories would. be less than the income that arose to it outside the taxable territories in that year.
3. In effect the learned counsel for the asses-see urged that the word "income" in the passage "income arising in taxable territories" should be interpreted to mean taxable income. The agricultural income of over Rs. 4 lakhs was not taxable income, and it was not taxed. Neither principle nor authority justifies the acceptance of that construction. The context of Section 4-A (c) does not, in pur opinion, require us to qualify the unqualified expression "income" by the addition of the word "taxable".
4. It is not all agricultural income that is not taxable but only such income from agricultural sources as satisfies the definition in Section 2 (1) of the Act. It should be obvious that even that agricultural income is income, though it is not taxable income. Apart from the fact that the Central Legislature has no legislative competence to tax agricultural income, it stands excluded from the statutory concept of total income under Section 4 (3) (viii) of the Act. Hut agricultural income is not the only species of income that is not taxable. It was only on the ground that the agricultural income of the assessoe was not taxable, that the learned counsel for the assessee relied to support this plea, that it should have been excluded from consideration in applying the statutory test imposed by Section 4-A (c).
5. The scheme of the Act makes it clear that the concept of income is much wider than that of the statutory concept of total income or that of taxable income. Further, it should be clear that the word "income" in the passage "income arising in the taxable territories" should, in the context of Section 4-A (c), be given the same meaning which should be accorded to that word in the next passage "income arising without taxable territories."
Neither permits importation of the limitation of taxable income. It should also be noted that the legislature specifically provided for the exclusion of capital gains in both cases. But for the statutory provision, capital gains, which has been included in the concept of income by Section 2 (6-C), would have to be taken into account for purposes of Section 4-A (c). If the legislature had intended to exclude agricultural income or all classes of non-taxable income, one would have expected the legislature to have said so.
6. Learned counsel urged that the word "income" must be given the same meaning both in Section 4-A(c) and in Section 4 (1) (b) of the Act. That does not take us much further. Section 4 (1) (b) has to be read with Section 4 (3) of the Act. It is the latter that specifically excludes agricultural income.
7. In our opinion that conclusion reached by the Tribunal was correct. Both the questions are answered in the affirmative and against the assessee. The assessee will pay the costs of this reference. Counsel's fee Rs. 150/-. Reference dismissed.