1. The question referred to us is whether the Excess Profits Duty Act, 1919, requires the duty to be assessed within the year from the 1st April 19J 9 to 31st March 1920 for which the duty is imposed. A comparison of the Act with the earlier Income-tax Acts makes it quite clear that this was not the intention of the legislature. It is expressly provided in Section 4 of the Indian Income-tax Act, 1886, Section 8 of the Super-tax Act, 1917, and Section 14 of the Income-tax Act, 1918, that the tax under each of these Acts shall be paid or collected in the year for which it is imposed and this necessarily implies that the assessment must also be within the year. Consequently under the Acts of 1886 and 1917, income which escaped assessment within the year went free, but in Section 25 of the Act of 1918 it was for the first time provided that in cases governed by that Act it might be assessed in the following year, and the Super-tax Act, 1917, has recently been amended to the same effect. On the other hand, the Excess Profits Duty Act, 1919 which we have to construe contains no provision that the tax is to be paid within the year but simply provides in Section 4 that it is to be 'charged, levied and paid,' and the legislature whilst making Sections 21 to 24, 26 and 27 as well as other sections of the Indian Income-tax Act, 1918, applicable in proceedings under this Act has omitted Section 25 which, as already mentioned, provides for the assessment in the following year of income which has escaped assessment in any year. The omissions of any provision that the tax should be paid within the year and of any provision for the assessment of income which had escaped assessment in the year itself are conclusive indications that it was the intention of the legislature to depart from the scheme of the earlier Acts and not to require assessment and payment within the year. The reason, as pointed out by the learned Advocate-General, no doubt, was that the assessment of the standard profits under Section 9 for the purposes of calculating the Excess Profits Duty was a complicated matter and in many cases could not be completed within the year. Consequently the legislature considered it a sufficient limitation to incorporate by reference, the provisions in Section 30(5) of the Indian Income-tax Act, 1918, that no proceedings for recovery of the tax should be taken after the expiration of one year from the last day of the year in which any demand is made under the Act.
2. It has, however, been argued that as the income with which we are dealing is not chargeable with super-tax under the Act of 1917 because it was not assessed to super-tax within the year, it must also be held exempt from excess profits duty under Section 19 of the present Act. That section merely provides, for the protection of the tax-payer, that the profits of any business shall not be chargeable both with super-tax and excess profits duty, but with whichever is the higher, and has no application to a case in which profits are chargeable only with excess profits duty and not with super-tax. It does not relieve profits from the liability to excess profits duty imposed by Section 4 unless such profits are chargeable with super-tax and the super-tax exceeds the excess profits duty. The answer must be that it is not necessary that the Excess Profits Duty should be assessed within the year. The assessees will pay cost to Crown Rs. 250.