Case: Padmavati R. Saraiya And Others Vs. Commissioner Of Income-Tax Bombay City-1

1. This judgment will dispose of 12 appeals from the judgments of the High Court of Bombay, dated March 17, 1958 whereby the High Court answered the questions referred to it partly in favour of the assessee and partly in favour of the Department. The four questions answered by the High Court areWhether the initiation of action under S. 34 for the purpose of bringing to tax the net dividend income of Rs. 579 (suitably grossed) was valid?2. Whether the said "portion of the dividend income" forms part of the assessed total income as that term is defined in S. 2 (13) of the Indian Income-tax Act. 1922?3. Whether having regard to the provision of the Indo-Pakistan Agreement, the assessee is entitled to any relief on the said "P. portion of dividend income?4. D. Whether the other moiety of the dividend of Rs. 1,71,992 declared by the Company on 14-10-1952 is properly includible in the total income of the assessee of the previous year S. Y.2008 for the assessment yearfigures in these questions are in respect of Shri Purshottamdas Thakurdass.)2. In C. A. 709/63 and C. A. 713/68 questions 1, 2 and 3 arise. Only questions 2 and 3 arise in C. A. 710/63, C. A. 711/63 C. A. 704/63, C. A. 707/63, C.A. 714/63 and C. A. 706/63, Question D arises in C. A. 712/63, C. A. 705/63, C. A. 708/63, C. A. 712/63 and C. A. 715/63. The appeals involving question D are by the Commissioner of Income-tax and appeals involving questions 1 to 3 are by assessees.3. It will be convenient to give the facts in the case of the assessee, the late Shri Purshottamdas Thakurdass, hereinafter referred to as assessee A. He was a shareholder in Narandas Rajaram Ltd., which carries on business both in India and Pakistan. Profits accused to it both in India and Pakistan. The company declared dividend out of the above profits. In the case of assessee A, the portion of the dividend attributable to the profits that accrued in Pakistan amounted to Rs. 2,722 for the assessment year 1949-50. On May 20, 1952, the I.T.O. included this sum of Rs. 2.722 in the total income but held that no income tax or super-tax was payable in respect of this amount. The Income-tax Officer reopened the assessment of 1949-50 because assessee A was a shareholder in Industrial Corporation Ltd., and an order had been passed under S. 23 A of the Indian Incometax Act. 1922 (hereinafter referred to as the Act) in respect of this Corporation. As a result of this order, Rs. 579 was deemed to have accrued to him. But in his reassessment order, dated January 17, 1955, the Income-tax Officer brought to charge not only the said Rs. 579 but also the said sum of Rs. 2,722, i.e., the Pakistan portion of the dividend received from Narendass Rajaram Ltd. The Appellate Assistant Commissioner upheld the assessment order both in respect of Rs. 579 and Rs. 2,722. The Appellate Tribunal also upheld the order. The Appellate Tribunal then referred the first three questions to the High Court but refused to refer the followingon the facts and circumstances of the case, the relief allowed in the assessment under S. 23 (3) on that portion of dividend income from Narandas Rajaram and Co. Private Ltd., which is attributable to the income of the Company arising in Pakistan can be withdrawn while making re-assessment under S.Assessee A took out a notice of motion for a reference of the said question.5. The High Court, by its judgment dated March 17, 1958, answered the three questions against the Assessee. The High Court also directed the Appellate Tribunal to refer the above question, hereinafter to be referred to as the "Supplementary question" which the Appellate Tribunal had declined to refer, on the Appellate Tribunal referring the said question, the High Court by its judgment dated April 14, 1960 answered the question in favour of the assesse.6. On February 7, 1961, the High Court granted the necessary certificate to Assessee A. The Commissioner of Income-tax, however, did not appeal against the judgment of the High Court on the supplementary question.7. For the assessment year 1952-53, the net dividend received by Assessee A from Narandas Rajaram and Co., Ltd., was Rs, 1,12,867 out of which Rs. 28,167 was attributable to the profits of that company which accrued in Pakistan. The I. T. O, charged this sum to tax and the assessment was confirmed both by the Appellate Assistant commissioner and the Appellate Tribunal. Two questions were referred to the High Court. The second question is the same as question No. 3 reproduced in the beginning of the judgment. The first question was in substance the same as question No. 2. The High Court on July 10. 1959, granted the certificate of fitness under S. 66A (2) of the Act.8. The fourth question D arose in the case of Assessee A for the assessment year 1953-54 under the following circumstances. On October 14, 1952, the following resolution was adopted at the ordinary general meeting of Narandas Rajaram and Co.as mentioned below, be and are hereby declared out of the profits of the Company:(a) A Dividend of 4 per cent on A Preference Shares and 4 per cent on B Preference Shares.(b) A Dividend of 32 per cent free of income-tax on the Ordinary Shares and a consequential additional dividend at the rate of 13 per cent free of income-tax on B Preference Shares.(c) A moiety of the amount of the dividend be paid to the shareholders on and after 16th October 1952 whose names appear on the Register of the Company as on 6th October, 1952, and the other moiety be postponed for payment within two months from the date on which remittances from Pakistan become free and the moneys are actually received.The certificate issued by the company under S. 20 of the Act also stated that half of the amount of the dividend was payable on or after October 16, 1952, and the balance was payable within 2 months after remittances from Pakistan become free". The Income-tax Officer included the entire amount of Rs. 1,71,902 in the total income of Assessce A Both the Appellate Assistant Commissioner and the Appellate Tribunal confirmed this. On an application of Assessee A, the Tribunal referred three questions; the first question is Question D, the second question is similar to the question No. 2 and the third similar to question No. 3, reproduced, in the beginning of the judgment. The High Court answered question D in the negative (i.e. against the Commissioner of Income-tax and the others as in the other reference, against the assessee. The High Court granted certificates under S. 66A (2) of the Act both to the Assesses A and the Commissioner of Income-tax.10. It is not necessary to give the facts in the cares of other assessees for, apart from the amount of dividend involved, the facts are similar.

Reasoning:
11. It is not necessary to discuss the first question which raises the point of the validity of proceedings under S. 34 of the Act. because it is common ground that it has become academic. This common ground is based on the fact that the Commissioner of Income-tax has not appealed against the judgment of the High Court, dated April 14, 1960. By this judgment the High Court had answered the supplementary question in favour of the Assessee A12. Regarding the second question.Mr Vishwanath Sastri rightly concedes that the Pakistan portion of the dividend forms part of the assessees total income as defined in S. 2 (15) of the Act. The High Court had followed its earlier judgment in the Commissioner of Incometax, Bombay City II v. Shanti K. Maheshwari, 1958-33 ITR 313: (AIR 1958 Bom478).We hold that the High Court was right in answering this question against the Assessee A.It seems to us that the opening sentence of Art. IV of the Agreement that each Dominion is entitled to make assessment in the ordinary way under its own laws clearly shows that each Dominion can make an assessment regardless of the Agreement. But a restriction is imposed on each Dominion and the restriction is not on the power of assessment but on the liberty, to retain the tax assessed. Art. IV directs each Dominion to allow abatement on the amount in excess of the amount mentioned in the Schedule.The scheme of the Schedule is to apportion income from various sources among the two Dominions. In the case of Dividends each Dominion is entitled to charge "in proportion to the profits of the company chargeable by each Dominion under this agreement." This refers us back to the other items. For instance, in respect of goods manufactured by the assessee partly in one Dominion and partly in the other, each Dominion is entitled to charge on 50% of the profits. But the Schedule does not limit the power of each Dominion to assess in the normal way all the income that is liable to taxation under its laws. The Schedule has been inserted only for the purpose of calculating the abatement to be allowed.16. Article VI also leads to the same conclusion. For if no assessment could be made on the amount on which abatement is to be allowed, there could be no question of making a demand without allowing the abatement and holding in abeyance for a period the collection of a portion of the demand equal to the estimated abatement.17. It is common ground that no certificate of assessment in the other Dominion has been produced before the Income-tax Officer. We agree with the High Court that the answer to this question is in the affirmative.It will be noticed that the dividend due to the assessee has not been credited to any separate account of the assessee, so that he could, if he wished, draw it. Before the High Court it was never suggested that the dividend was credited or distributed. Accordingly we hold that the Pakistan portion of the dividend has not been credited or paid within the meaning of S. 16 (2) of the Income-tax Act. The answer to the question is, therefore, in the negative.