Appeal No 1975 of 1966
Appeal by special leave from the judgment and order dated July 11 1962 of the Madras High Court in Tax Case No 84 of 1960
section Swaminathan and R Gopalakrishnan for the appellant
Veda Vyasa A N Kirpal R N Sachtliey and section P Nayar for the respondent
The Judgement of the Court was delivered by Shah J This is an appeal with special leave
The appellant is a Society registered under the 
The following table sets out the data relating to the earnings investments working capital outgoings and expenditure of the Society for the year ending June 30 1955 relevant to the assessment year 1956 57 iInterest from Government securi ties
Rs431045300 ii Total gross earnings 
Rs210099400 iii Investments in Government securities 
Rs13060653 00 iv Total working
capital
Rs47342603 00 v Interest paid on debentures depo sits and other accounts Rs 1509490 00 vi Total overhead expenses and es tablishment overhead charges Rs 301102 00 32 In a proceeding for assessment of the total income of the Society to tax for the year 1956 57 it was claimed that under section 14 3 of the Indian Income tax Act 1922 as added by section 10 of the Finance Act 1955 with effect from April 1 1955 the income of the Society from business was exempt from payment of tax and that in accordance with the instructions issued under section 60 of the Act out of the gross income from securities amounting to Rs 430053  Rs 416475 being income attributable to the assets utilized in the business only the balance of Rs 13578was chargeable to tax
In support of its claim the Society relied upon the instructions published in the Income tax Manual 1946
In the view of the Income tax Officer the Society could not claim the benefit of the Departmental Instructions since in the relevant year of assessment those instructions had ceased to operate and the Society s claim was governed by the Explanation to section 8 of the Income tax Act as incorporated by the Finance Act of 1956 with effect from April 1 1956
He accordingly computed the taxable income under the head interest on securities in the sum of Rs 59498 
The Appellate Assistant Commissioner modified the order of the Income tax Officer and reduced the taxable income under the head interest on securities to Rs 13578 applying the Departmental Instructions
He held that the Explanation to section 8 of the Act applied to Banking Companies and not to Co operative Societies
In appeal by the Commissioner of Income tax the Appellate Tribunal reversed the order of the Appellate Assistant Commissioner and restored the order of the Income tax Officer
In the view of the Tribunal the Explanation to section 8 of the Act cannot be invoked as the Society was not a Banking Company but the principle of the Explanation may well be called in aid and that the relief granted by the Income tax Officer was the only relief to which the Society was entitled
The following question of law was submitted by the Tribunal to the High Court of Madras Whether the Tribunal is justified in law in holding that the taxable income of the assessee from interest on securities is Rs 59498  The High Court reframed the question to read Whether the taxable income of the assessee from interest on securities is Rs 13578 as contended by the assessee and as worked out on the basis of the Departmental instructions contained at pages 248 and 249 in Part III of the year 1946 and answered it in favour of the Commissioner
33 Counsel for the Society in the first instance contended relying upon the judgment of this Court in Commissioner of Incometax Andhra Pradesh vs Cocanada Radhaswami Bank Ltd1 contended that no part of the income of the Society even if it be earned from Government securities was liable to be taxed
It may be recalled that the Society had claimed before the Departmental authorities and the Tribunal that according to the instructions issued by the Central Government under section 60 of the Income tax Act only Rs 13578 out of the income from Government securities were chargeable to tax
The Income tax Officer and the Tri bunal held that Rs 59498 were chargeable to tax
The decision in Cocanada Radhaswami Bank s case1 relates to the right of a Bank to carry forward the net loss incurred by a Banking Company and to set it off in subsequent years against income from securities held as part of its trading assets
It is not a decision under section 143 of the Act
Again it is not open to the Society in this reference to contend that the amount of Rs 13578 itself is not taxable
Such a question was never raised before the Tribunal and cannot be permitted to be raised in this Court
The Income tax Act 1922 as originally enacted did not give to a Co operative Society exemption from payment of tax in respect of income from its business activities
But by Departmental Instructions issued under section 60 of the Act certain exemptions were given by a notification issued on August 25 1925 and modified by notifications dated June 25 1927 October 20 1934 and August 18 1945
Among the classes of income exempt from liability to pay tax under the notification was 2 The profits of any cooperative society other than 
or the dividends or other payments received by the members of any such society out of such profits
Explanation For this purpose the profits of a cooperative society shall not be deemed to include any income profits or gains from 1 investments in a securities of the nature referred to in section 8 of the Indian Income tax Act or b  2 dividends or 3 the other sources  referred to in section 12 of the Indian Income tax Act
By the notification profits of a Co operative Society were exempt from tax but those profits were not to Include any income profits or gains from securities of the nature referred to in section 8 of the 1157 ITR 306
NISCI 4 34 Indian Income tax Act
The Legislature by section 10 of the Finan Act of 1955 added sub sec
3 to section 14 whereby it was enacted
inter alia that The tax shall not be payable by a co operative society including a co operative society carrying on the business of banking i in respect of profits and gains of business carried on by it ii in respect of interest and dividends derived from its investments with any other cooperative society A co operative society since the enactment of the Finance Act 1955 with effect from April 1 1955 was therefore not liable by the express provisions in the Act to pay tax in respect of the profits and gains of business carried on by it
Under section 8 of the Incometax Act 1922 tax is payable by an assessee under the head Interest on securities in respect of the interest receivable by him on any security of the Central Government or of a State Government or on debentures or other securities for money issued by or on behalf of a local authority or a company subject to exemption inter alia in respect of any sum deducted from such interest by way of commission by a banker realizing such interest on behalf of the assessee or in respect of any interest payable on money borrowed for the purpose of investment in the securities by the assessee
The Parliament by the Finance Act 1956 amended the first proviso and added an Explanation to section 8 providing for the computation of the sum reasonably spent for the purpose of realising interest and of interest paid on sums borrowed for the purpose of investment by a Banking Company
The Explanation provides Explanation In the case of a banking company a the amount which bears to the aggregate of its expenses as are admissible under sub section 2 of section 10 other than clauses iii vi vi a vi b vii viii xi xii xiii and xiv th ereof the same proportion as the gross receipts from interest on securities inclusive of tax deducted at source chargeable to tax under this section bears to the gross receipts from all sources which are included in the profit and loss account of the company shall be deemed to be the sum reasonably expended by it for the purpose of realising such interest and the amount for which allowance is admissible under sub section 2 of section 10 shall be reduced correspondingly and b money borrowed shall include moneys received by way of deposits and that amount which bears to the amount of interest payable on moneys borrowed the same proportion as the gross receipts from interest on securities inclusive of tax deducted at source chargeable to tax under this section bears to the gross receipts from all sources which are included in the profit and loss account of the company shall be deemed to be interest payable on money borrowed for the purpose of investment in the securities by the assessee and the amount of such interest for which allowance is due under sub section 2 of section 10 shall be reduced correspondingly and 35 b money borrowed shall include moneys received by way of deposits and that amount which bears to the amount of interest payable on moneys borrowed the same proportion as the gross receipts from interest on securities inclusive of tax deducted at source chargeable to tax under this section bears to the gross receipts from all sources which are included in the profit and loss account of the company shall be deemed to be interest payable on money borrowed for the purpose of investment in the securities by the assessee and the amount of such interest for which allowance is due under sub section 2 of section 10 shall be reduced correspondingly
 Broadly stated under cl a the sum reasonably spent is computed as that proportion of the aggregate of the expenses admissible under the various clauses of sub section
2 of section 10 mentioned therein which the gross receipts from interest on securities bear to the gross receipts from all sources included in the profit and loss account of the banking company
Similarly under cl
6 interest payable on money borrowed for the purpose of investment in Government securities is that proportion of the total interest paid on borrowings which gross receipts from securities bear to gross receipts from all sources
Income of the Society from its trading activity being exempt from tax its income from Government securities had it was common ground to be apportioned between income earned from investments for trading purposes and for non trading purposes
The Income tax Officer applied the first proviso read with the Explanation to section 8 of the Income tax Act
The Income tax Appellate Tribunal held that in terms the Explanation to section 8 did not apply because the Society was not a banking company but the principle of the Explanation furnished after the Departmental Instructions had been withdrawn a reasonable basis for apportionment
In the view of the Tribunal the principle embodied in the Explanation was an improvement on the instructions since it co related the income chargeable under the head with the expenditure and also provided for proportionate allocation of overhead charges
The High Court held that the benefit of the departmental notification was not available to the Society in the year of assessment because it must be deemed to be withdrawn and the Explanation to section 8 did not in terms apply to the Society
It was common ground between the parties in this Court and the High Court that Explanation to section 8 has no application to a co operative society which does not carry on the business of a banking company
There is also no dispute that the departmental notification relied upon by the company was withdrawn before the relevant assessment year
There is therefore no statutory rule and nor there are departmental instructions governing the apportionment of income from Government securities between business 36 and non business sources of income
It was never urged and it cannot be urged that in the absence of a specific rule for apportionment the entire income from Government securities should be brought to tax
Any attempt to bring the entire income from Government securities would infringe section 143 of the Act
A rule of apportionment consistent with commercial accounting must be evolved for determining the income from Government securities attributable to business activity of the Society
The rule contained in cl
a of the Explanation to section 8 has specially been evolved for determining the appropriate outgoings for the purpose of realizing interest from securities held by a Banking Company in computing income  chargeable to tax it seeks to exempt on the footing that it is deemed to be the sum reasonably expended for the purpose of realizing interest a part thereof which is equal to the proportion which the gross receipts from interest on securities chargeable to tax bear to the gross receipts from all sources
The rule is an artificial rule for allocating business expenditure between different sources of income of Banking Companies
It is not a rule for apportionment for the purpose of taxation of composite income which is partly taxable and partly not
Clause b provides for allocation of outgoings in respect of money borrowed which expression includes money deposited with the Bank
Interest payable on borrowings is directed to be allocated in the proportion in which income is received from investments from securities and from other sources
This clause also deals with the proportion in which the outgoings are allocable
The problem arising under section 143 is of apportionment of income under heads taxable and nontaxable it is not a problem relating to allocation of outgoings to determine taxable income
In our judgment a rule of apportionment which dismembers income in proportion to the business and non business components of the single source from which it arises would be more consistent with principles of commercial accounting
The proportion of income from securities which is exempt from taxation under section 14 3 of the Act will be that proportion which the capital of the Society used for the purpose of the business bears to the total working capital
It is admitted that Rs 13578 is the gross income from securities which is according to that rule liable to tax
No question was raised in the High Court about any deduction to be made in respect of expenses for collection of that amount and admissibility of deduction on that score does not fall to be considered
The appeal is allowed
Answer to the question as reframed by the High Court is that Rs 13578  are taxable as income of the Society received from Government securities under section 8 of the Income tax Act
The Commissioner will pay the costs of the Society in this Court
VPS Appeal allowed


Summary:
The Income tax Act 1922 as originally enacted did not give to a cooperative society any exemption from payment of tax in respect of income from its business activities
By departmental instructions issued under section 60 of the Act exemption from payment of tax in respect of certain receipts of a co operative society were given
The notification provided inter alia that as regards interest received by it from government securities an amount which bears the same proportion to the total interest paid on debentures etc
as the capital invested in government securities bears to the total working capital shall be deducted from the interest on government securities as being exempt from tax
The departmental instructions were later withdrawn and sub section
3 was added to section 14 of the Act by which with effect from April 1 1955 a cooperative society was not liable to pay tax in respect of the profits and
gains of business carried on by it
In 1956 an Explanation applicable to banking companies was added to section 8
Clause a of the Explanation provided for the allocation of business ex penditure between different sources of income of banking companies and cl
b provided for allocation of outgoings in respect of  money borrowed including money deposited with the bank 33BH 34C F Thus in spite of section 143 for the assessment year 1956 57 there were no departmental instructions governing the apportionment of income from government securities between business and non business sources of income and in the case of a cooperative society which did not carry on the business of a banking company
there was no statutory rule for such apportionment the Explanation to section 8 not being applicable
Therefore in the case of a cooperative society which was not carrying on the business of a banking company a rule of apportionment consistent with commercial accounting for determining the income from government securities attributable to the business activity of the society had to be evolved
35H 35A B The appellant was a cooperative society not carrying on business of banking and for the assessment year 1956 57 it claimed that out of its gross income from securities only Rs 13578 was chargeable to tax on the principle of the departmental instruction
The Appellate Tribunal applied the principle of the Explanation to section 8 and computed the taxable income at Rs 59498
The High Court held that the benefit of the departmental notification was not available to the appellant because it must be deemed to have been withdrawn and that the Explanation to section 8 did not in terms apply to the appellant
31 In appeal to this Court HeldIn the absence of a statutory rule and departmental in structions a rule of appointment which dismembers income in proportion to the business and non business components of the source from which it arises would be more consistent with principles of commercial accounting
The proportion of income from securities which is exempt from taxation under section 143 will be that proportion which the capital of the Society used for the purposes of the business bears to the total working capital and according to this rule the gross income from securities which would be liable to tax was only Rs 13578
It was not open to the appellant to contend that even this amount was not taxable
Such a question was never raised either before the department or the Tribunal
33C D 36F H The principles laid down in cls
a and b of the Explanation to s 8 are not Applicable
The rule in cl
a is not a rule of apportionment for the purpose of taxation of composite income which is partly taxable and partly not
It is an artificial rule specially evolved for determining the appropriate outgoings for the purpose of realising interest from securities held by a banking company in computing income chargeable to tax
Clause b deals with the proportion in which the outgoings are allocable
The problem arising under section 143 is not one relating to allocation of outgoings to deter
mine taxable income but of apportionment of income under the taxable and non taxable heads
36C E