1. The assessee in this case is a public limited banking company. For the assessment year 1968-69, it claimed credit for Rs. 1,51,342, being tax deducted at source in arriving at the demand for tax payable by the assessee. That amount included a sum of Rs. 22,975, which was the tax deducted at source in respect of the interest earned on 5.75% Tamil Nadu State Electricity Board bonds, 1979, which stood in the name of the assessee. It appears that these securities were purchased by the assessee for its constituents by advancing funds. Subsequent to the purchase of the bonds by the assessee in its name but for the benefit of its constituents, the bonds had been kept by the assessee as security for the repayment of the amount advanced to the constituents for purchase of the securities.
2. Originally the ITO allowed deduction of the entire amount claimed without making a difference between the said sum of Rs. 22,975 which was the interest earned on the said State Electricity Board Bonds and the amount of tax deducted at source in respect of other securities. However, the ITO subsequently took the view that since the securities as its income. Treating the credit given to the assessee in a sum of Rs. 22,975 as a mistake apparent from the records, he initiated proceedings for rectification under s. 154 of the I.T. Act, 1961 (hereinafter referred to as 'the Act'). The assessee resisted the rectification proceedings contending that it was not a mistake apparent from the record, that the questions as to who as between the assessee and its constituents is the owner of the securities in the circumstances is a debatable point and, therefore, it was not a case for rectification. The ITO, however, overruled that objection and passed an order of rectification dated October 12, 1971, by which he withdrew the credit given in the original assessment for the sum of Rs. 22,975.
3. The assessee took the matter in appeal to the AAC contending that the ITO has already decided the issue as to whether the assessee is entitled to get credit for the sum of Rs. 22,975 and, therefore, the rectification was due to a mere change of opinion and not in respect of any error apparent from the record. The AAC did not agree with the contention of the assessee, and held that the rectification proceedings were validly initiated as there was an error apparent from the record which the ITO was entitled to rectify.
4. The assessee took the matter in appeal to the Income-tax Appellate Tribunal, contending that what was rectified was not a simple mistake apparent from the record because the question whether the assessee was the owner of the securities or not is a debatable issue and the said question which involves a debate cannot be a mistake apparent from the record so as to enable the ITO to initiate rectification proceedings. The Revenue rested the appeal before the Tribunal contending that the assessee not being the owner of the securities, the tax deducted at source in respect of the interest earned thereon cannot be given credit to the assessee but only to the real owners who are the constituents of the assessee and, therefore, there was clearly an erroneous adjustment made in the assessment which required to be rectified.
5. The Tribunal, after considering the rival contentions, held that the rectification proceedings cannot be sustained in law as it is not a case of mistake apparent from the record, that the question as to who is the real owner of the securities as between the assessee and its constituents is a debatable issue and, therefore, the rectification proceedings cannot be initiated on the basis that it is an error that it is an error apparent from the record. In this view of the matter, the Tribunal set aside the rectification proceedings. Aggrieved by the view taken by the Tribunal, the Revenue has sought and obtained a reference to this court on the following two questions :
'1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that there was no mistake apparent from the record and that the order under section 154 withdrawing the excess credit of tax deducted at source, amounting to Rs. 22,975 was invalid
2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law, in giving credit for the tax deducted as source on interest on securities held by the assessee on behalf of its constituents, the income from which was at no point of time admitted for assessment by the assessee ?'
6. The following facts are not in dispute. the assessee has advanced monies to its constituents for the purchase of Electricity Board Bonds. On the instructions of the constituents the bonds have been purchased by the assessee with the amount advanced by it to the constituents. But the Bonds had been taken in the name of the assessee-bank and kept in its possession as a security for the loan advanced to its constituents for the purchase of the bonds, Though the bonds were in the name of the assessee, the interest income from the relevant assessment year. This is presumably for the reason that the bank itself treated the bonds as security and the interest income from the bonds as the income of the constituents. Since the amounts had been advanced by the assessee-bank to its cosnstituents for the purchase of the bonds, the bank had been collecting the interest on the loans given to its constituents. Therefore, the assessee, in the belief that the income from the bonds is the income of the original assessment, he these facts were before the ITO at the time of the original assessment, he merely proceeded on the assessee, without going in to the question as to whether the before credit is given for the sum of Rs. 22,975, which was the tax deducted as source on the interest earned on the bonds in question, the ITO should have considered two matters : (1) whether the assessee is the owner of the bonds so as to claim the benefits of the credit, and (2) whether the income in respect of which the tax has been deducted at source had been offered for assessment. Without going into these two questions, the ITO appears to have blindly given tax credit for a sum of Rs. 22,975 on the basis of the tax deduction certificate given by the allowance of the tax credit is a mistake and, on that basis, he initiated proceeding under s. 154. The Tribunal has taken the view that the question as to who is the owner of the security on the facts of facts of this case that the question as to who is the owner of the security on the facts of this case is a debatable issue and on the basis of such a debatable issue, the ITO could not initiate rectification proceedings.
7. We are not, however, inclined to accept the view of the Tribunal in this case. Once it is admitted by the assessee that the bonds had been purchased for the benefit of its constituents by using the money advanced to them by the assessee but the bonds were taken in the assessee's name and kept in its possession as security for the payment of the monies advanced to its constituents, the legal inference which will normally follow from this admission is that the bonds belong to the constituents and that the bank has got the custody of the bonds belong to the constitutents and that the bank has got the custody of the bonds only as a security for the payment of the money advanced by it to its constituents. When the assessee says that it is in custody of the bonds of the constituents only as a security for the amounts advanced to them, the assessee-bank should be taken to be in possession of bonds only as a creditor and not as their owner. Even according to the assessee the bonds had been purchased with the nominies advanced by it to the constituents. Therefore, with referen ce to the bonds, the bank is only a creditor of the constituents and not their true owner. It is no doubt true,the bonds have been taken in the name of the assessee-bank and the certificate of deduction of tax was given in the name of the assessee. But once the assessee admits that it is in possesion of the bonds only as securit y for the amounts advanced to its comstituents,the bank should be taken to be an ostensible owner and the real or benifical owners of the bonds are only its constituents. In this case, the Tribunal has placed emphasis on thhe fact that the bonds are in the name of the deduction have been given,in the name of the assessee. That will make the assessee only an ostensible owner. When the assessee itself has admitted that the beneficial owners of the bonds are the constituents, we not see how a debatable issue arises as to the awnership of the bonds. Even according to the assessee, it is the obstensible owner of the bonds and the real owners are its constituents. This is clear from the stand taken by the assessee that the bonds were purchased with the constituents' money, though they were purchased in the bank's name as security for the payment of the assessee that the bonds were purchased with the constituents' money, though they were purchased in the bank' s name as security for the payment of the monies advanced to the constituents by the bank. According to us no debatable issue arises on the admitted facts and the facts admitted by the assessee and found by the ITO. It was never the assessee's case that it is the beneficial owner of the bonds purchased. It had the custody of the bonds bought only as a security for repayments of the advances made by it to its constituents. As already stated, once a loan is advance made by the assessee to the constituents and that amount has been utilised for the purchase of the bonds, the assessee can never claim to be the beneficial owner of the bonds. The fact that the assessee did not offer for assessment the interest income received from the bonds will itself indicate that the assessee proceeded on the basis that the beneficial ownership of the bonds was with the constituents and that as such the income received therefrom is the income of the constituents. If really the assessee has offered the interest income from the bonds for assessment and claimed benefit of tax credit in relation to that income in respect of which tax was deducted, it is possible to say that the assessee is claiming tax credit on behalf of the constituents to pass on the benefit of the constituents or as one having a charge on the bonds. But in this case, without offering the interest income from the bonds for assessment, the assessee merely claims the benefit of tax credit. It is well-established that a tax credit can be given only in cases where the tax is paid on the income in respect of which deduction has been made at source.
8. In Kanga and Palkhivala's 'The Law and Practice of Income-tax', 7th edition, volume I, at page 1048, the following passage occurs :
'The tax deducted at source is deemed under this section (section 199) to have been paid on behalf of ' the owner of the security' and credit is to be given to him herefor. The word 'owner ' would include a beneficial owner. Therefore, a beneficial owner of securities, who is entitled to the interest on securities and in whose total income the interest as such is included, would be entitled to credit under this section for the tax deducted at source, even though the securities may not have stood in his name at the time when the interest was paid.
9. It is not doubt true, in the case of dividends to a shareholder, the tax deducted at source has to be given credit only to the shareholder and not to any other person as a benefitical owner, for a shareholder is one whose name finds a place in the register of the company. But in the case of securities, it has consistently been held by the courts that there is a possibility of one being the ostensible owner and another being a beneficial owner. In CIT v. Shakuntala : 43ITR352(SC) , the Supreme Court has explained the position thus (p. 357) :
'The section does not talk of the beneficial owner of the share. It talks of the shareholder only. Section 18(5) of the Acts deals with grossing up of dividends and two expressions occur therein : 'owner of the security' and the 'shareholder'. So far as the expression 'owner of the security' is concerned, it may perhaps include a beneficial owner but it has been decided by this court that the expression 'shareholder' in section 18(5) means the shareholder registered in the books of the company. As we have earlier said, no good reason exists as to why the expression 'shareholder' in section 23A shall not have the same meaning. Sub-sections (3) and (4) of section 23A also make the position clear they talk of members of the company and a Hindu undivided family as such is not a member of the company.
10. In CIT v. Nattarasankottai Electric Supply Corporation : 15ITR495(Mad) , a Division Bench of this court has proceeded on the basis of an assumption that there can be beneficial owner in the case of securities standing in the name of another. The learned judges observed (p. 500) :
'The position is essentially the same as if the company had purchased Government bonds and lodged them with the trustee as security for the debenture holders. The resolution passed at the general meeting of the debenture holders referred to already in pursuance of which the company purchased the debentures in the name of the trustee makes the position perfectly clear. The company therefore, remained the owner of these debentures subject to the charge created in favour of the debenture holders, and the so-called interest paid by the company to the trustee was in truth a deposit with the trustee of part of its funds for purposes of security.
11. In Shree Jagdish Mills Ltd. v. CIT : 36ITR279(Bom) , the Bombay High Court has also proceeded on the assumption that there can be a beneficial ownership for securities though somebody else may be the ostensible owner. Though in that case factually the court held that the assessee therein was neither the legal owner nor the beneficial owner of the securities, the judgment proceeds on the basis that there can be a beneficial owner apart from the legal owner in the case of securities. Even assuming that the question as to who is the owner of the securities and who is entitled to get tax credit as between true owner and obstensible owner is a debatable point. Still, without going into that issue, the matter can be looked from a different angle. the ITO, at the stage of the original assessment, gave the tax credit to the assessee even though the income in respect of the tax deducted has not been offered for assessment. As already, stated, tax credit can be given only in cases where the tax is paid on the income in respect of which tax has been deducted at source. But in this case, the assessee has not offered for assessment the income from the bonds, sd either as owner or as a creditor having a charge thereon.
12. The learned counsel for the assessee would contend that in a case as this where the income from the securities has not been offered for assessment, the only way open to the ITO is to call upon the assessee to offer the income from the securities for assessment but he cannot withdraw the benefit of the tax credit already given. We are not in a position to accept the contention of the learned counsel for the assessee. It is no doubt true, the ITO can, by initiating proceedings under s. 147, reopen the assessee treating the assessee as the owner of the securities based on the fact that the certificates stand in the name of the assessee-bank and ignoring the assessee's contention that it has got only a charge on the securities for the amount advanced to the constituents. But that will not take away the jurisdiction of the ITO to initiate proceedings under s. 154 to rectify a mistake apparent from the record, the mistake being that he has given the benefit of tax credit in a case where the income din respect of which tax has been deducted at source has not been offered for assessment. That is clearly a mistake on the part of the ITO. Even if the mistake in treating the assessee as the owner of the securities cannot be treated as a mistake, as according to the Tribunal it is a debatable issue, still giving tax credit in a case where the related income has not been offered for assessment is a mistake and that can be taken as the basis by the ITO for initiating proceedings under s. 154.
13. In this view of the matter, it is unnecessary for us to deal with the various decisions referred to by the learned counsel on both the sides to the circumstances in which s. 154 could be invoked by the ITO and what will amount to a debatable point which cannot be taken advantage of by the ITO by reopening the assessment under s. 154. We are, therefore, of the view that in this case the rectification of the mistake by the ITO is valid and is within his jurisdiction.
14. The result is, the questions referred to us are answered in the negative and against the assessee. The Revenue will have its costs from the assessee. Counsel's fee Rs. 500.