Sankar Prasad Mitra, J.
1. In this Reference under Section 60 (1) of the Indian Income-tax Act, 1922, the assessment year is 1949-50. The corresponding accounting year is the calendar year ending 31-12-1948. The assessee isan Indian Company which manufactures aluminium-ware and utensils. The assessee during the relevant accounting year had a shop at Rangoon in Burma for selling some of its manufactured products. The goods that were sold in Burma were all manufactured in India but were sent to Burma for sale. The invoice prices of these goods corresponded with their prices in India and included the manufacturing profits in India and also part of the merchanting profits. The differences between the invoice price and the sale price in Burma were shown as profit accruing or arising in Burma.
2. In the assessee's Indian assessment, the Income-tax Officer accepted the assessee's method of accounting. He computed the sum of Rs. 9,688/- as the assessee's loss in Burma for the assessment year 1949-50. But the appropriate authorities in Burma, in the assessee's Burma, assessment, for the assessment year 1949-50, assessed the assessee's income in Burma at Rs. 91,548/. The Burmese authorities charged tax on the sum of Rs. 91,548/- as no business profits tax was payable in Burma for this year.
3. The assessee then applied to its Income-tax Officer in India under Section 49-D of the Indian Income-tax Act, 1922. The assessee claimed relief in respect of double taxation on the amount of Rs. 91,548/- for the assessment year 1959-50.
4. The Income-tax Officer held that no relief was available to the assessee for this year as in the Indian assessment the trading result in Burma was determined at a loss of Rs. 9,688/-. The Income-tax Officer in India was of the opinion that since the sum of Rupees 91,548/- which had been assessed as the assessee's Burma income by the Burmese authorities, had not been taxed as the assessee's Burma income in India, there had been no double taxation of any part of the assessee's income and. as such, the assessee was not entitled to any relief under Section 49-D.
5. The Appellate Assistant Commissioner expressed the view that the Burma income as computed in India was the amount which only was to be taken into consideration for purposes of tax relief as contemplated under Section 49-D of the Indian Income-tax Act, 1922. As, for the assessment year 1949-50 in the Indian assessment the Burma income was computed at a loss, according to the Appellate Assistant Commissioner, the Income-tax Officer was justified in rejecting the assessee's claim under SECTION 49-D.
6. Before the Tribunal the assessee contended that the sum of Rupees 91,548/- was the assessee's manufacturing profits which arose in India; but as the Burma authorities assessed this sum as the assessee's Burma income it must be held to have been assessed both in India and in Burma and the assessee was entitled to double taxation relief under Section 49-D. The Tribunal held that for the purpose of determining the amount of doubly taxed income under Section 49-D it was the amount of the foreign income as computed for the purposes of the Indian Income-tax Act that had to be considered. The Tribunal said that for the assessment year 1949-50 the Indian authorities had computed a business loss of Rs. 9,688/- in Burma and it could not, therefore, be said that the assessee had suffered double taxation in respect of any income arising in Burma in that year.
7. The following questions of law have been referred to this Court:
(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that for the purpose of applying the provisions of Section 49-D of the Indian Income-tax Act, 1922, the amount of the foreign income as computed in the Indian Income-tax Act only has to be considered and not the income of the assessee as assessed in that foreign country?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that assessee was not entitled to any relief under Section 49-D of the Indian Income-tax Act, 1922, for the assessment year 1949-50?
8. Learned Counsel for both the parties have approached the points that arise for our consideration in this reference from varied points of view. But it would be unnecessary for us to deal with all the different aspects of their respective arguments and the authorities they have relied on. It is common case that the sum of Rs. 91,548/- was the assessee's manufacturing profits in India in the assessment year 1949-50. Both the parties also agree that in construing Section 49-D the language of the Section should be strictly followed and it is the factual position alone that is relevant. In those premises, it would be convenient to set out, at this stage, the relevant portions of Section 49-D as they stood at the material time. These portions are as follows:--
'If any person who has paid by deduction or otherwise Indian Income-tax for any year in respect of any income arising without the taxable territories in a country the laws of which do not provide for any relief in respect of income-tax charged in the taxable territories proves that he has paid income-tax by deduction or otherwise under the laws of the said country in respect of the same income, he shall beentitled to the deduction from the Indian income-tax payable of a sum equal to one-half of such Indian Income-tax or to one-half of such tax payable in the said country, whichever is less.'
9. For our purposes in this reference, this Section requires that income must arise to an assessee without the taxable territories. Secondly, the income that arises without the taxable territories has been taxed in a foreign country as well as in India. These two conditions must be satisfied before an assessee can claim relief under Section 49-D.
10. Let us now see whether the assessee in the instant case fulfils the requirements described above. It may be that the sum of Rs. 91,548/- has been taxed both in India and in Burma but the question is whether this sum can be said to be the income which arose without the taxable territories. From the statement of the case as well as the orders of the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal it appears to us that the sum of Rs. 91,548/- represented the assessee's manufacturing profits by sale of certain goods in Burma. Therefore, the only question that is relevant for us to consider is whether these manufacturing profits can be said to be profits arising in India or elsewhere. Our problem, so far as this aspect of the matter is concerned, has been solved to a great extent, by the observations made in two of the judgments of the Supreme Court which we now intend to refer to. In Commr. of Income-tax, Bombay v. Ahmedbhai Umarbhai & Co., Bombay : 181ITR472(SC) the assessee was a firm resident in British India. It carried on the business of manufacturing and selling of groundnut oil. The assessee had three mills in Bombay and one at Raichur in the Hyderabad State where the oil was manufactured. The oil that was manufactured in Rajchur was sold partly in Rajchur and partly in Bombay. The sssessee contended that a part of the profits derived from sale in British India of the oil manufactured at Raichur was attributable to the manufacturing operations at Raichur and that such profits should be excluded from assessment to excess profits tax under the third proviso to Section 5 of the Excess Profits Tax Act, 1940. The department, on the other hand, contended (i) that the manufacturing operations carried on at Raichur did not constitute a part of the assessee's business within the meaning of the third proviso to Section 5 and (ii) that even if such operations could be regarded as a part of the business the profits derived from sales in Born-bay could not be said to have accrued or arisen in that State. The Supreme. Court has held that the activity which the assessee carried on at Raichur was a part of its business within the meaning of the third proviso to Section 5, that the profits of a part of the business, viz., the manufacture of oil in their mills at Raichur accrued or arose at Raichur and that such profits were not assessable to excess profits tax under, the third proviso to Section 5.
11. The Bench consisted of six learned Judges of the Supreme Court presided over by Chief Justice Kania, Undoubtedly, the Supreme Court was concerned in this case with whether manufacturing profits were chargeable under Section 5 of the Excess Profits Tax Act of 1950 but there are observations in this judgment on what is meant by 'manufacturing profits' which are of assistance to us in deciding the present reference. Chief Justice Kania at p. 478 (of ITR) ; (at p. 136 of AIR) has observed.
'The next contention of the appellant was that even if a part of the business was in an Indian State the profits accrued or arose only on the sale of the oil in Bombay and no part of the profits of manufacture therefore arose in an Indian State. In my opinion, this argument is also unsound. On the sale of goods the assessee received money. While the receipt of the prices is thus in Bombay it is an entirely different thing to say that therefore the whole, of the profits of the manufacture and sale arose in Bombay. This argument overlooks the distinction between accruing or arising on the one hand and receipt on the other .....'
12. Mr. Justice Mahajan at pp. 498-499 (of ITR) (at PP, 146-147 of AIR) has said:--
'The question in the present case is whether in respect of the manufacturing business of the assessee in Raichur profits accrue or arise and if so, at what place. My answer unhesitatingly is that the manufacturing profits arise at the place of manufacture. They could arise nowhere else. The sale profits arise at the place of sale and apportionment has to be made between the two, though the place of receipts and realisation of the profits is the place were the sales are made. The manufacturing profits could not be said to have accrued or arisen at that place because there was nothing done from which they could accrue or arise as natural accrual or as an increase. The increase only took place at the place of manufacture and if there was any accrual over the production costs, that accrual was at the place of the production itself.'
13. At page 515 (of ITR) (at pp. 154-155 of AIR) Mr. Justice Bijan Kumar Mukerjea observes:--
'..... in proviso (3) to Section 5 ofthe Excess Profits Tax Act, the Legislature has deliberately left out the word 'received' and has spoken only of 'accruing' or 'arising'. This shows that the Legislature had in mind cases where profits could accrue to parts of a business before they were actually received. When a raw material is worked up into a new product by process of manufacture, it obviously increases in value; in other words, there is an accretion of profit to it and the increased value represents this income or profit which is the result of manufacture. As these profits accrue by reason of manufacture, the accrual, in my opinion, cannot but be located at the place where the manufacturing process is gone through. It is immaterial that the manufactured goods are sold later on at various places. If the manufacturer is himself the seller, it might be that he receives the entire profits including that of the manufacture only at the time of the sale; but in an inchoate shape, a portion of the profits does accrue at the place of manufacture, the exact amount of which is only ascertained after the sale takes place. For purposes of computation, the two parts of the business may be conceived of as being carried on by two different sets of persons. As soon as the manufacture is complete, that part of the business is finished and the profits that accrue to that part certainly arise at the place where the manufacture is carried on and not where the sale ultimately takes place .....'.
14. In this judgment, therefore, the Supreme Court indicates that, in cases of manufactured goods, when the Court has to consider where a particular income arose or accrued, manufacturing profits must be held to have arisen or accrued at the place where the goods were manufactured and not at the place where the goods were sold if they were sold at a place other than that of manufacture.
15. We may also refer to the case of the Anglo-French Textile Co, Ltd. v. Commr, of Income-tax, Madras : 25ITR27(SC) , This case has been decided by four learned judges of the Supreme Court. The assessee was a Company incorporated in the United Kingdom. It had its registered office in London. It manufactured yarn and cloth in its mill at Pondicherry. The assessee had appointed a Company in Madras as its agent, The manufactured goods were sold partly in British India and partly outside British India. All the contracts in respect of the sales in British India were enteredinto in British India and deliveries were made and payments were received In British India. In regard to sales outside British India also, payments in respect of such sales were received in Madras through the said agent. The Supreme Court has held, inter alia, that the income received in British India could not be said to wholly arise in British India within the meaning of Section 4-A (c) (b) and that there should be allocation of the income between the various business operations of the assessee demarcating the income arising in the taxable territories in the particular year from the income arising without the taxable territories in that year for the purpose of Section 4-A (c) (b) of the Act. The Supreme Court is of opinion that though profits may not be realised until a manufactured article is sold, profits are not wholly made by the act of sale and do not necessarily accrue at the place of sale. To the extent profits are attributable to the manufacturing operations, profits accrue at the place where the business operations are carried on.
16. No doubt, there are many features of this case which can be distinguished from the case before us but the Supreme Court's view on the location of 'manufacturing profits' seems to be based not on interpretation of any particular section of the Income-tax Act but on general principles of law. Mr. Justice Bhagwati who delivered the Supreme Court's judgment has stated at p. 43 (of ITR) : (at p. 201 of AIR):--
'The question whether a particular part of income, profits or gains arose or accrued within the taxable territories or without the taxable territories would have to be decided having regard to the general principles as to where the income, profits or gains could be said to arise or accrue .....'
Again, at p. 49 (of ITR) ; (at 201 of AIR) Mr. Justice Bhagwati states:--
'..... the apportionment ofincome, profits or gains between those arising from business operations carried on in the taxable territories and those arising from business operations carried on without the taxable territories is based not on the applicability of Section 42 (3) of the Act but on general principles of apportionment of income, profits or gains .....'.
17. Applying the above principles to the facts which the tax authorities have found in the present reference it seems to us that the sum of Rs. 91,548/- may have been assessed, in the assessment year 1949-50, both in India and Burma but this sum cannot be said to be 'income arising withoutthe taxable territories' within the meaning of Section 49-D of the Income-tax Act, 1922 and, although it may have been doubly taxed no relief can be given to the assessee under Section 49-D.
18. In these circumstances, our answer to question No. 2 in this reference is in the affirmative and against the assessee. In view of this answer to question No. 2, we are of opinion that on the facts of the instant case, question No. 1 need not be answered at all, Each party will bear and pay its own costs.
Sabyasachi Mukharji, J.
19. I agree.