Supreme Court of India
Madurai Distt. Central Cooperative ... vs The Third Income-Tax Officer, Madurai on 28 July, 1975
Equivalent citations: 1975 AIR 2016, 1976 SCR (1) 136, AIR 1975 SUPREME COURT 2016, 1975 2 SCC 454, 1975 TAX. L. R. 913, 1976 (1) ITJ 89, 1976 (1) SCR 135, 1975 (11) CO-OP LJ 226, 1975 SCC (TAX) 374, 1976 (1) SCJ 127, 101 ITR 24, (1998) 2 SCC 454
Author: Y.V. Chandrachud
Bench: Y.V. Chandrachud, Ranjit Singh Sarkaria, A.C. Gupta
PETITIONER:
MADURAI DISTT. CENTRAL COOPERATIVE BANK LTD.
Vs.
RESPONDENT:
THE THIRD INCOME-TAX OFFICER, MADURAI
DATE OF JUDGMENT28/07/1975
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
SARKARIA, RANJIT SINGH
GUPTA, A.C.
CITATION:
1975 AIR 2016 1976 SCR (1) 136
1975 SCC (2) 454
CITATOR INFO :
D 1981 SC1562 (17)
ACT:
Constitution of India-Article 246(1)-7th Schedule List
1 Entry 82- Income-Tax ,Act 1961-Sec. 2(8), 4 & 81(i)(a)-
Finance Act 1963-Sec. 2(1) (a). 2(8), 3, Part 1, First
Schedule-Whether tax can exceed taxable income- Finance Act-
Nature and scope of-Whether can impose fresh charge-
Harshness of a taxing statute if a ground for challenge-
Business income of a cooperative society doing banking-
Whether additional surcharge a tax-Whether additional
surcharge Can be levied on income exempted from payment of
tax.
HEADNOTE:
The appellant is a Cooperative Society engaged in the
business of banking According to section 8] (i) (a) of the
Income 'Tax Act, 1961, a Cooperative Society engaged in the
business of banking is not liable to pay income tax on its
business income. The Finance Act, 1963, however, by section
2(i) (a), 2(8), 3, paragraph A(ii) of Part I of the First
Schedule and clause of that portion of Part I called
surcharge on Income Tax provides for levy of additional
surcharge for the purposes of the Union calculated on the
amount of the residual income at the rates mentioned
therein. The total income of the appellant for the
assessment year 1963-64 was Rs. 10,00,098. Out of this Rs.
9,48,335 was its business income. 'The tax amounting to Rs.
23,845 was charged on Rs. 51,763 Applying the Finance Act of
1963, the residual income of the appellant was computed at
Rs. 5.39,386 and a surcharge thereon was levied of Rs.
52,828 Thus, the total tax imposed on the appellant came to
Rs. 76,674.
The assessment order passed by the Income Tax officer
levying the tax as aforesaid was challenged by the appellant
in the High Court by a Writ Petition. The main grievance of
the appellant before the High Court was that whereas its
taxable income was only Rs. 51,763, a tax of Rs. 76,674 was
imposed on it. The relevant provisions of the Finance Act
were challenged as invalid on the ground that(i) they
imposed additional surcharge on income which was exempt from
tax under the provisions of the Income Tax Act and that (ii)
the additional surcharge was intended as additional levy on
the income tax and had no independent existence apart from
it The High Court rejected these contentions.
On an appeal by certificate, dismissing the appeal,
^
HELD :
1. It is indisputable that the appellant is not
required to pay income tax on the banking income. In view of
section 81. It is also not liable to pay surcharge on its
business income in view of section 99(1)(v). [139C]
2. The, grievance of the appellant that the tax levied
upon it exceeds its taxable income can afford no true guide
to the construction of the relevant provisions of the Income
Tax Act or the Finance Act. Harshness of a taxing statute,
apart from a possible challenge to it under Art. 13 of the
Constitution cannot be an invalidating circumstance. But,
the grievance-on this score is misconceived. It assumes what
has to be examined that no part of the income exempted from
Income Tax and Super Tax under the Income Tax Act can be
brought to tax by a Finance Act, [140G-H]
3. The concession of the counsel for the appellant
giving up challenge to the power. of the Parliament to
impose a new charge by Finance Act was Properly made. Under
Art. 246(11) of the Constitution, Parliament has the
exclusive power to make laws with respect ''o any of the
matters in List of the Seventh Schedule. Entry 82 in List I
relates to tax on income other than agricultural income. The
Income Tax Act, 1961 and the annual Finance Acts are enacted
by the Parliament in exercise of the powers conferred by Art
246(1) read with entry 82 of List I. Once the Parliament has
the legislative competence to enact a law with respect to
certain subject matter, the limits of
136
that competence cannot be judged further by the form or
manner in which that power is exercised. Exigencies of the
Financial year determine the scope and nature of the
provisions of the Finance Act. The primary purpose of the
Finance Act is to describe the rates at with the Income Tax
will be charged under the Income Tax Act but that does not
mean that new and distinct tax cannot be charged under
Finance Act. Therefore, what is not income under the Income
Tax Act can be made income by the Finance Act. An exemption
granted by the Income Tax A, t can be withdrawn by the
Finance Act or the efficacy of that exemption may be reduced
by the imposition of a new charge. [141D-E; G-H]
4. The contention of the appellant that surcharges are
nothing but income tax and, therefore, expression income tax
occurring in Sec. 4 and 81 of the Act includes surcharges
and AS such exempted cannot be accepted. The case of the
C.I.T. Kerala vs. K. Srinivasan distinguished. There the
essential point for determination was whether surcharge is
additional mode or rate for charging income tax. The Court
held there that it was so. The question before us is whether
even if the surcharge is an additional mode or rate for
charging income to the Finance Act of 1963 authorises by its
terms the levy of additional surcharge on income which is
exempt from income tax under the Income Tax, Act, 1961. The
residual income as defined by the 1963 Finance Act is not
the same as the business income of a Cooperative Bank which
is exempted under see. 81. The additional surcharge is a
distinct charge not dependent for its leviability on the
assessee's liability to pay income tax or Super Tax. The
decision of Allahabad High Court in Allahabad District Co-
operative Bank Ltd vs. Union of India over-ruled. [143D-E]
5. The additional surcharge though levied by the
Finance Act 1963 independently of the Income Tax Act is but
a mode of levying tax on a portion of the assessee's income
computed in accordance with the definition in section 2(8)
of the Finance Act 1963. [147F]
ARGUMENTS
For The Appellant
1. Under section 81 read with section 4 of the Income-
tax Act, 1961, income tax is not payable by the appellant. a
Co-operative Society, in respect of its income from banking
business. Similarly super-tax is not payable under section
99(i)(v) read with section 4.
2. The primary purpose of the annual Finance Acts as
envisaged by section 4 of the Income-tax Act is to prescribe
the rates of income-tax on the total income of an assessee,
and this function as contemplated by section 4 is to be
"subject to the other provisions of this Act", namely, the
Income-tax Act, 1961, which would include, inter alia,
section 81.
3. The history of Indian income-tax shows that
surcharges by way of increase to the amount of income-tax,
which are added to the basic amount, in view of article 271
of the Constitution of India, are nothing other than income-
tax and a part of income-tax alone. Therefore the expression
'income-tax' in section 4 and 81 of the Income-tax Act,
1961, and section and Schedule I, Part 1 of the Finance Act,
1953, includes surcharges.
4. Section 2 of the Finance Act, 1963, and Schedule I,
Part I, Paragraph A all clearly contemplate that the
surcharge. special surcharge and additional surcharge are
all only by way of increase of the amount of income-tax and
not only partake of the character of income-tax but are
actually a part of income tax. They are merely rates of
income-tax. The main part of section 2(1) (a) says that
"Income-tax shall be charged at the rates specified in Part
I of the First Schedule" and clause (ii) of that section
provides in the ease referred to therein that income-tax
"shall further be increased by an additional surcharge for
the purpose of the Union calculated in the manner provided
in the First Schedule. Similarly in Paragraph A of Part I of
the First Schedule the heading to the provisions prescribing
rates of surcharge is "surcharges on income-tax" in the
plural. The main part in the heading also provides that "the
amount of
137
income-tax... shall be increased by the aggregate of the
surcharges calculated as under " Clause (c) thereafter
provides for the additional surcharge for the purpose of the
Union. Paragraph A also therefore clearly indicates that the
three surcharges are only of the same nature and that all
the three surcharges are only by way of increase of the
amount of income-tax; in other words part of the income-tax.
Is either section 2 nor paragraph A of Part I of the First
Schedule can even remotely be said to contemplate any
separate levy of additional surcharge other than income-tax.
5. From the assessment order it is seen that the
following have been charged only on the real taxable income
of the appellant namely Rs. 51,763: (i) income tax (ii)
surcharge on income tax (iii) special surcharge on income-
tax (iv) super-tax and (v) surcharge on super-tax. These
items have not been charged on the total income of Rs.
10,00,098, because income-tax is not payable on the balance
of the total income under section 81. The Income-tax officer
has sought to impose only additional surcharge under clause
(c) in respect to the total income of Rs. 10,00,098. In view
of section 81 no additional surcharge is payable on the
total income of Rs. 10,00,098. It is payable only on the
taxable income of Rs. 51,763.
6. Section 2 read with Paragraph A Part I of Schedule I
to the Finance Act merely purports to lay down the method of
computation where income-tax is payable. It does not either
dire thy or by implication make any amendment or
modification in section 81.
7. Section 3 of the Finance Act ]963 also applies to a
stage of computation only and in regard to relief, rebate
etc. It does not impose any liability or any tax. It
operates only where additional surcharge is payable and not
other wise, and where relief, rebate etc. is to be given
from the tax payable by the assessee, e.g. deduction of tax
based on life insurance premia provident fund contribution.
donations to charitable institution etc. Section 81 does not
provide for any such relief or rebate.
8. Section 2(8) of the Finance Act, 1963, defining
"residual income" which requires deduction from the total
income of income-tax, surcharge and special surcharge to
ascertain residual income also does not have the effect of
imposing any liability or any tax but merely provides for
computation. In a taxing Act one has to look merely at what
is clearly said. There is no room for any intendment. There
is no equity about a tax. There is no presumption as to tax.
Nothing is to be read in, nothing is to be implied." "In a
case of reasonable doubt. the construction most beneficial
to the subject is to be adopted." The court will be very
slow in reading an implied amendment in a tax law because
there is no intendment.
9. Income-tax is one tax, not several taxes on several
heads or several items of income:
For the Respondent
1. It is open to the Parliament to pass an Act relating
to more than one topic or field of operation, covered by the
Entries in List 1. It is not as if there must be as many
Enactments as the topics which the enactment covers.
2. The legislature has a wide range of selection and
freedom in appraisal not only in the subjects of taxation
and the manner of taxation but also in the determination of
the rate or rates applicable. If production were always to
be taken into account there will have to be a settlement for
every year and the tax will become a kind of income-tax.
The burden of proving discrimination is always heavy
and heavier still when a taxing statute is under attack. The
burden is on the person complaining of discrimination. The
burden is proving not possible 'inequality' but hostile
'unequal' treatment. This is more so when uniform taxes are
levied. The State cannot be asked to demonstrate equality.
3. Income which is exempt from taxation is income which
is assessable to tax and therefore liable to tax but tax is
not imposed on account of the exemp-
138
tion. This exemption can by subsequent legislation be wholly
or partially withdrawn both as regards items of income and
levies imposed for the purpose of taxation. Thus where the
Income-tax Act 1961 says that business income of a co-
operative society will be exempt from income-tax it would be
open to the Parliament by enactment of the Finance Act of
1963 to say that this exemption shall be partially withdrawn
as regards residual income and this partial exemption will
operate only for the purpose of income-tax but not surcharge
on residual income. The net result of the partial withdrawn
of the exemption would mean that though the business income
of a co-operative society will be exempt from tax the
residual income which is only a part of the exempted
business income could be subjected to surcharge on income-
tax only.
4. Income-tax and surcharge on income-tax are two
different levies though the computation of the latter is
based upon a percentage of the former. The to are inclusive
for the purpose of imposing tax but they are not one levy
only.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1795 of 1970.
From the Judgment and order dated the 15th October, 1968 of the Madras High Court in Writ Petition No. 2252 of 1965.
S. T. Desai and T. A. Ramachandran, for the appellant. N. D. Karkhanis and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD,J.-The appellant filed a writ petition in the High Court of Madras under Article 226 of the Constitution to challenge an assessment order dated August 22, 1963 made by the respondent, levying additional surcharge on its residual income. The High Court dismissed the writ petition by its judgment dated October IS, 1968 but it has granted to the appellant a certificate to file an appeal to this Court under Articles 133(a) and (c) of the Constitution.
The appellant is a co-operative society engaged in the business of banking. Its total income for the assessment year 1963-64 was computed by the respondent at Rs. 10,00,098. Out of this, Rs. 9,48,335 was its business income while Rs. 51,763 was its income from other sources. Since, under section 81(i)(a) of the Income-tax Act, 1961 a co- operative society engaged in the business of banking is not liable to pay income-tax on its business income the tax amounting to Rs. 23,845.47 was charged on Rs. 51,763 only though for the purposes of rate the income was taken at Rs. 9,48,335 in view of section 110 of the Act. Applying the Finance Act, XIII of 1963, the respondent computed the residual income of the appellant at Rs. 5,39,386 and levied on it an additional surcharge of Rs. 52,828.60. Thus the total tax levied on the appellant came to Rs. 23,845.47 plus Rs. 52,828.60 i.e., Rs. 76,674.07.
The main grievance of the appellant before the High Court was that whereas its taxable income was only Rs. 51,763, a tax of Rs. 76,674.07 was imposed on it. The relevant provisions of the Finance Act were accordingly said to be invalid as they could not subject to additional surcharge an income which was exempt from tax under the provisions of the Income-tax Act. The additional surcharge, it was contended, was intended as an additional levy on the income 139 tax and had no independent existence apart from it. These contentions were rejected by the High Court and hence this appeal.
Section 81 of the Income-tax Act, 1961 was deleted by the Finance Act, XX of 1967, with effect from April 1, 1968 but its provisions were incorporated by the same Finance Act in section 80P. Section 81 (i)(a) read thus:
"81. Income of co-operative societies.-Income-tax shall not be payable by a co-operative society-
(i) in respect of the profits and gains of business carried on by it, if it is-
(a) a society engaged in carrying on the business of banking or providing credit facilities to its members;"
It is indisputable that by reason of this provision, the tanking income of the appellant amounting to Rs. 9,48,335 is exempt from income tax. It is equally clear that by reason of section 99(1)(v) of the Act of 1961, the appellant is not liable to pay supertax on its business income. That section provides that where the assessee is a co-operative society, super-tax shall not be payable by it on any income in respect whereof no income-tax is payable by it by virtue of the provisions of section 81.
The dispute really centers round the provisions of Finance Act, VIII of 1963. The provisions of that Act which are relevant for our purpose are sections 2(1)(a), 2(8), 3, Paragraph A(ii) of Part I of the First Schedule, and clause
(c) of that` portion of Part 1, called `'Surcharges on Income Tax."
Section 2(1)(a) of the Finance Act, 1963 provides that:
2. Income-tax and super-tax-(1) Subject to the provisions of sub-section (2), (3), (4) and (5), for the assessment year commencing on the 1st day of April, 1963,-
(a) income-tax shall be charged at the rates specified in Part I of the First Schedule and,-
(i) in the cases to which paragraphs A,C,C and E of that Part apply, shall be increased by a surcharge for purposes of the Union and, except in the cases to which the said paragraph applies a special surcharge, calculated in either case in the manner provided therein; and
(ii) in the cases to which paragraphs A and of the aforesaid Part apply, shall further be increased by an additional surcharge for purposes of the Union (hereinafter referred to as additional surcharge) calculated in the manner provided in the said Schedule;"
Section 2 (8) provides that:
For the purposes of paragraphs A and of Part I of the First Schedule, the expression "residual income"
means the amount of the total income as reduced by-140
(a) the amount of the capital gains, if any, included therein; and
(b) the amount of tax (exclusive of additional surcharge) which would have been chargeable on such reduced total income if it had been the total income no part of which had been exempt from tax and on no portion of which deduction of tax had been admissible under any provisions of the Income-tax Act or this Act."
Section 3 provides that:
"Notwithstanding anything contained in the provisions of Chapter VII or Chapter VIII-A or section 110 of the Income tax Act or sub-section (5) of section
2 of this Act, in calculating any relief rebate or deduction in respect of income-tax payable on the total income of an assessee which includes any income on which no income-tax is payable or in respect of which a deduction of income-tax is admissible under any of the aforesaid provisions, no account shall be taken of the additional surcharge."
The First Schedule of the Finance Act, 1963 consists of three parts out of which we are only concerned with Part I. Part I which is called "Income-tax and surcharges on income- tax" consists of Paragraphs A, B, C, and out of which we are concerned with Paragraph A only. Clause (ii) of Paragraph A prescribes rate of income-tax for incomes accruing, inter alia, to "association of persons". Since a co-operative society is an association of persons, Paragraph A of Part I would apply to the case of the appellant for`the purposes of section 2(1)(a)(ii) of the Finance Act oil 1963, though not for the purpose of bringing its exempted business income to income-tax.
That portion of Part I, Paragraph A, called "Surcharges on Income Tax" provides: "The amount of income-tax computed at the rates hereinbefore specified shall be increased by the aggregate of the surcharges calculated as under". Clause
(a) provides for a surcharge for the purposes of the Union at the rates mentioned in sub-clauses (i), (ii) and (iii). Clause (b) provides for the levy of a special surcharge. Clause (c) with which we are concerned provides for the levy of "an additional surcharge for the purposes of the Union calculated on the amount of the residual income" at the rates mentioned therein.
The grievance of the appellant, which appears to have been pressed before the High Court with some earnestness, that the tax levied upon it exceeds its taxable income can afford no true guide to the construction of the relevant provisions of the Income tax Act or the Finance Act. Harshness of a taxing statute, apart from a possible challenge to it under Article 13 of the Constitution, cannot be an invalidating circumstance. But the grievance on this score is basically misconceived. It assumes, what has to be examined, that no part of the income exempted from income- tax and super-tax under the Income-tax Act can be brought to tax by a Finance Act. The total income of the appellant was computed 141 at Rs. 10,00,098. By reason of sections 81 (i) (a) and 99 (1) (v) of the Income-tax Act, 1961 the appellant enjoys an exemption from income tax and super-tax in respect of its business income which amounts to Rs. 9,48,335. The balance, viz. Rs. 51,763 which was the appellant's income from other sources was alone taxable under the Act of 1961 and a tax of Rs. 23,845.47 was imposed on that income; The Finance Act of 1963 subjects 'residual income' to certain charges and such in come was computed, admittedly correctly, at Rs. 5,39,386. An additional surcharge of Rs. 52,828.60 was levied on the residual income. Thus on the assumption that the Finance Act, validly-and on a true interpretation, imposes the additional surcharge on residual income, the tax imposed on the appellant is Rs. 23,845.47 plus Rs. 52,828.60. The total tax of Rs. 76,674.07 thus imposed is far less than the. appellant's total taxable income arrived at by the addition of its non-business income and the residual income. That leads to the inquiry first as regards the scope of a Finance Act and then as regards the interpretation of the Finance Act of 1963.
Learned counsel for the appellant, during the course of his arguments, gave up the challenge to the power of the Parliament to impose a new charge by a Finance Act. This concession was properly made. By Article 246(1) of the Constitution, Parliament has the exclusive power to make laws with respect to any of the matters in List I of the Seventh Schedule. Entry 82 in List I relates to "taxes on income other than agricultural income". The Income-tax Act, 1961 and the annual Finance Acts are enacted by the Parliament in exercise of the power conferred by Article 246(1) read with Entry 82 of List I. Once the Parliament has the legislative competence to enact a law with respect to a certain subject-matter, the limits of that competence cannot be judged further by the form or manner in which that power is exercised. Accordingly, though it would be unconventional for the Parliament to amend a taxing statute by incorporating the amending provision in an Act of a different pith and substance, such a course would not be un- constitutional.
Much more so can the Parliament introduce a charging provision in a Finance Act. True, as said in Kesoram Industries and Cotton Mills Ltd v. Commissioner of Wealth Tax, (Central) Calcutta(1), that the Income-tax Act is a permanent Act v. while the Finance Acts are passed every year and their primary purpose is to prescribe the rates at which the income-tax will be charged under the Income tax act. But that does not mean that a new and distinct charge cannot be introduced under the Finance Act. Exigencies of the Financial year determine the scope and nature of its provisions. If the Parliament has the legislative competence to introduce a new charge of tax, it may exercise that power either by incorporating that charge in the Income-tax Act or by introducing it in the Finance Act or for the matter of that in any other Statute. The alternative in this regard is generally determined by the consideration whether the new charge is intended to be more or less of a permanent nature or whether its introduction is dictated by the financial exigencies of the particular year. Therefore, what is not 'income' under 142 the Income-tax Act can be made 'income' by a Finance Act, an exemption granted by the Income-tax Act can be withdrawn by the Finance Act or the efficacy of that exemption may be reduced by the imposition of a new charge. Subject to constitutional limitations, additional tax revenue may be collected either by enhance the rate or by the levy of a fresh charge. The Parliament, through the medium of a Finance Act, may as much do the one as the other. In McGregor and Balfour Ltd., Calcutta v. C.I.T., West Bengal(1), which was affirmed by this Court in 36 I.T.R. 65. Chakravartti C.J. delivering the judgment of a Division Bench observed that the Finance Acts though annual Acts are not necessarily temporary Act for they may and often do contain provisions of a general character which are of a permanent operation.
In Hari Krishna Bhargav v. Union of India and Anr.(2) an assessee challenged the scheme of Annuity Deposits of the ground that the Parliament has no competence to incorporate ill the Income tax Act a provision which was substantially one relating to borrowings by the Central Government from a class of tax-payers. That scheme was introduced by Finance Act 5 of 1964 which incorporated Chapter XXII-A containing section 28-A to section 28-X in the Income tax Act, 1961. The challenge was repelled by this Court on the ground that if the parliament had the legislative competence to pass an Act for collecting Annuity Deposits from tax-payers, nothing contained in the Constitution disentitled it "as a matter of legislative arrangement to incorporate the provisions relating to borrowing from tax-payers in the Income-tax Act or any other statute".
This discussion became necessary in spite of the appellant's concession on the Parliament's legislative competence because for a proper understanding of the provisions of the Finance Act 1963, it is essential to appreciate that a Finance Act may not only prescribe rates but also introduce a new charge.
We will now proceed to consider the provisions of the Finance Act, 1963 under which the respondent has levied additional surcharge on the appellant's residual income. The question for consideration is whether clause (c) of the portion "Surcharges on Income Tax" occurring in Paragraph A of Part I introduces a new charge in the shape of additional surcharge so that the said charge, can be levied even on a part of the appellant's income which is exempt from income- tax and super-tax under sections 81(i)(a) and 99(1)(v) of the Act of 1961.
The history of Indian income-tax, according to appellant's counsel, shows that surcharges by way of increase in the amount of income-tax are nothing but income- tax and therefore the expression "income-tax" occurring in sections 4 and 81 of the Act of 1961 and in section 2 and the First Schedule of the Finance Act, 1963 includes surcharges. To put it differently, the argument is that the exemption granted by section 81(i)(a) extends to surcharges also as a result whereof a co-operative society engaged in the business of banking is neither liable to pay income-tax nor any of the surcharges on its business income.
143In C.I.T., Kerala v. K. Srinivasan(1) on which the appellant relies, this Court has traced the history of the concept of 'surcharge' in tax laws of our country. After considering the report of the Committee on Indian Constitutional Reforms, the provisions of the Government of India Act, 1935, the provisions of Articles 269, 270 and 271 of the Constitution and the various Finance Acts, this Court held, differing from the High Court, that the word "income- tax" in section 2(2) of the Finance Act, 1964 includes surcharges and the additional surcharge.
This case does not touch the point before us. In that case, the assessee's income for the accounting year ending March 30, 1964 consisted mainly of his salary. Section 2(2)(a) of the Finance Act, 1964 did not by itself refer to any surcharge but it provided that in making the assessment for the assessment year commencing on April 1, 1964 the "income-tax" payable by the assessee on his salary-income shall be an amount bearing to the total amount of "income- tax" payable according to the rates applicable under the operation of the Finance Act, 1963 on his total income, the same proportion as the salary income bears t the total income. The question which arose for consideration was under
the total income. The question which arose for consideration was whether the words "income-tax payable according to the rates applicable under the operation of the Finance Act, 1963" included surcharges which were leviable under the Act of 1963. The question was answered by this Court in the affirmative. As the judgment shows, "the essential point for determination" was whether surcharge is an additional mode or rate for charging income tax" (p. 351). The Court held that it was. The question before us is whether, even if the surcharger is but an additional mode or rate for charging income-tax, the Finance Act of 1963 authorises by its terms the levy of additional surcharge on income which is exempt from income-tax under the Income-tax Act, 1961 In K. Srinivasans case the Court declined to express any opinion on the distinction made by the High Court that surcharges are levied under the Finance Act while income tax was levied under the Income-tax Act (p. 351). In the instant case it is not disputed by the-revenue that a surcharge partakes of the essential characteristics of income-tax and is an increase in income-tax. What we have to determine is whether the Act of 1963 provides for the levy of additional surcharge.
Granting that the word "income-tax" includes surcharges, it may be arguable that the exemption from the payment of income-tax under section 81 (i) (a) of the 1961 Act would extend to surcharges. But the matter does not rest with what section 81 (i)(a) says. Even if that section were to grant an express exemption from surcharges on business income the Parliament could take away that exemption or curtail the benefit available under it by making an appropriate provision in the Finance Act. If while legislating on a matter within its competence the Parliament can grant an exemption, it is surely competent to it to withdraw that exemption in exercise of the self-same power.
The Finance Act, 1963, like its annual counterparts, contains provisions not only prescribing rates of taxation but making extensive and important modifications in the Income-tax Act itself. By sections 4 to 144 20 of the Act of 1963, various provisions of the income-tax Act have been amended. By these amendments, some of which are given retrospective effect, old provisions are deleted, new ones are added and indeed new concepts of taxation altogether are introduced. Such innovations fall within the legitimate scope of Finance Acts. Section 11 (14) of the Indian Finance Act, 1946 made in the amount of excess profits tax repaid under section 28 of the U.K. Finance Act, 1941, "income" for the purpose of the Indian Income tax Act and further provided that "income shall be treated for purposes of assessment to income tax and super-tax as the income of the previous year. It was held by this Court in McGregor and Balfour Ltd. v. C.I.T. West Bengal(1) that section 11(14) charged the amount with a liability to tax by its own force. It was further held that the particular provision, framed as it was, applied to subsequent assessment years just as it applied to the assessment year 1946-47.
Having seen the nature and scope of Finance Acts, the specific question which we have to consider is whether, as contended by the appellant, section 2 read with Paragraph A, Part I of the First schedule of the Finance Act, 1963 merely lays down a method of computation in cases where income-tax is in fact payable or whether, as contended by the revenue, the Finance Act provides for the levy of a new and independent charge. According to the appellant, these provisions of the Finance Act do not, directly or indirectly, bring about any amendment to section 81(i)(a) of the Income-tax Act but merely prescribe that in cases where the income-tax is payable, "The amount of income tax.... shall be increased by the aggregate of the surcharges". The heading "Surcharges on income tax" under which provision is made in the Finance Act for the calculation of a surcharge, a special surcharge and an additional surcharge is also said to bear out the contention that the levy of additional surcharge on the residual income cannot be disassociated from the main charge of income-tax.
We are unable to accept this contention Article 269(1) of the Constitution provides that the duties and taxes mentioned therein shall be levied and collected by the Government of India but shall be assigned to the States in the manner provided in clause (2). Article 270(1) provides that Taxes on income other than agricultural income shall be levied and collected by the Government of India and distributed between the Union and the States in the manner provided in clause (2). By Article 271, notwithstanding anything in Articles 269 and 270, Parliament may increase any of the duties or taxes referred to in those Articles by a surcharge for purposes of the Union. Surcharges leviable under section 2(1) of the Finance Act. 1963 are relatable to Article 271 of the Constitution.
Section 2(1)(a)(ii) of that Act provides, in so far as relevant, that for the assessment year commencing on April 1, 1963 income-tax shall be charged at the rates specified in Part I of First Schedule and in cases to which Paragraph A of Part I applies, the income-tax shall further 145 be increased by an additional surcharge for purposes of the Union calculated in the manner provided in the First Schedule. `Clause (c) of Paragraph prescribes the manner in which the additional surcharge is to be calculated. It provides that additional surcharge for purposes of the Union shall be calculated "on the amount of the residual income'. at the rates mentioned in that clause. Thus both the purpose and concept of the additional surcharge are different from those of income-tax. The additional surcharge is leviable exclusively for purposes of the Union so that the entire proceeds of such surcharge may under Article 271 of the Constitution, from part of the Consolidated Fund of India. taxes and duties mentioned in Article 269(1), though levied and collected by the Government, have to be assigned to the States in the manner provided in clause (2) of that Article. Then again, the additional surcharge levied for purposes of the Union is to be calculated not on total income like the income-tax but it is to be calculated on the residual income. Section 2(8) of the Act of 1963 defines residual income as total income reduced by (a) capital gains, if any, included in that total income and (b) the amount of tax (exclusive of additional surcharge) which would have been chargeable on such reduced total income if it had been the total income no part of which had been exempt from tax and on no portion of which deduction of tax had been admissible. In order that the exemption granted to co-operative banks by section 81 (i) (a) may not lose its meaning and content, section 2(8) of the Finance Act introduces the concept of residual income on which alone the additional surcharge is payable. The residual income is not the same as the business income of a co-operative bank, which is exempt under section 81(i)(a) from income tax. For ascertaining the residual income the total income is reduced by the amount of capital gains and further by the amount of tax (other than additional surcharge) which would have been charged on such reduced total income on the assumption that the whole of it was liable to be brought to tax.
Thus in the instant case the additional surcharge is not levied on the appellant's business income of Rs. 9,48,335 which is exempt from income-tax and super-tax. It is levied on the residual] income of Rs. 5,39,386 which is arrived at after deducting Gross taxes (exclusive of additional surcharge) amounting to Rs. 4,60,712 from the assessee's gross income of Rs. 10,00,098. By section 3 of the Finance Act of 1963 no account can be taken of the additional surcharge in calculating any relief, rebate or deduction in respect of income-tax payable on the total income of an assessee which includes any income on which no income-tax is payable or in respect of which a deduction of income-tax is admissible. Section 3, by its terms, has precedence over anything contained in Chapter VII or Chapter VIII A or in section 110 of the Income-tax Act or section 2(5) of the Finance Act itself. Additional surcharge is treated in this way as falling in a separate category.
Thus, additional surcharge is a district charge. not dependent for its leviability on the assessee's liability to pay income-tax or super-tax. Such a qualification cannot be read into section 2(1)(a)(ii) of the Act of 1963 as argued by the appellant. That section uses the language that "income-tax....shall further be increased by an additional sur-
146charge", not for making the assessability to surcharge dependent upon Assessability to income tax but for the simple reason that if an assessee`s total income includes income on which no tax is payable, tax has all the same to be computed for purposes of rate Section 110 of the Income- tax Act, 1961 provides that where there is included in the total income of an assessee any income on which no income- tax is payable, the assessee shall be entitled to deduction, from the amount of income tax with which he is chargeable on his total income, of an amount equal to the income-tax calculated at the average rate of income tax on the amount on which no income-tax is payable. The income-tax computed at a certain rate is by section 2(1)(a)(ii) to be further increased by an additional surcharge for purposes of the Union. This becomes clearer still from the language of Paragraph A, under the heading ..Surcharges on Income Tax". It says: "The amount of income-tax computed at the rate hereinbefore specified shall be increased by the aggregate of the surcharges,". If the intention was to limit the liability to pay additional surcharge to income which can be brought to income tax, appropriate language could have been used to convey that simple sense.
The weakness of the appellant's contention becomes manifest when it is realised that were the contention right, the appellant would not be liable to pay additional surcharge even on that portion of its non-business income which is contained in the residual income. By the definition in section 2(8) of the Act of 1963, residual income means the total income as reduced and therefore, the non business income which is chargeable to income-tax must form a component of the residual income. Concededly, the appellant is liable to pay additional surcharge on its non-business income. This is so not because additional surcharge is payable by law on non-business income but because it is payable on residual income and residual income, by definition, includes non business income as reduced. In fact, it consists of the amount of total income as reduced by the amounts mentioned in clauses (a) and (b) of section 2(8).
Relying on United Commercial Bank Ltd. v. Commissioner of Income-tax, West Bengal(1), East India Housing and Land Development Trust Ltd. v. Commissioner of Income-tax West Bengal(2), and K. V. Al. M. Ramanathan Chettiar v. Commissioner of Income-tax, Madras(3), the appellant's counsel urged that income-tax is a single levy, that it is one tax and not so many taxes separately levied on several heads of income. This partly is the same argument in a different disguise that an assessee who is not liable to pay income-tax cannot be made liable to pay additional surcharge under the Finance Act, 1963. We have rejected that contention. Partly, the argument is designed to establish correlation with section 146 of the income tax Act, 1961 by which, when any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under the Act, the Income-tax office has to serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable. This provision presents no 147 difficulty for, if an assessee is liable to pay additional surcharge but no income-tax or super tax, the notice of demand will mention the particular amount payable as tax due. The appellant being liable to pay tax on its non- business income and additional surcharge on its residual income, the demand notice will call for payment of the total amount due from the appellant by way of tax.
The interpretation put by us on the Finance Act, 1963 does no violence to section 4 of the Income-tax Act, 1961 under which income-tax at the rates prescribed by the Finance Act is to be charged "in accordance with, and subject to the provisions of." the Income-tax Act. The Income-tax Act exempts the assessee's business income from income tax and super-tax. The Finance Act brings to tax its residual income.
The decision of the Allahabad High Court in Allahabad District Co-operative Bank Ltd. v. Union of India and Ors.(1) is directly in favour of the appellant and naturally, learned counsel for the appellant relies on it very strongly. But that case, in our opinion, is incorrectly decided. The learned Judges were in error in holding that section 2 of the Finance Act, 1963 does not provide for the levy of a tax other than income-tax" and that therefore additional surcharge is not payable to the extent of the income which is exempt under section 81 of the Income-tax Act. One of the difficulties which the learned Judges felt in accepting the revenue's contention was that if "the additional surcharge mentioned in the Finance Act of 1963 was not partake of the nature of income-tax it will not be possible to demand and realise it under the provisions of the income-tax Act, and the notice of demand and recovery proceedings would be vitiated on that account". The very assumption of this observation is falacious because additional surcharge indubitably partakes of the nature and essential characteristics of income-tax. It is a tax on residual income and by reason of the definition contained in section 2(8) of the Act of 1963, "residual income" would include non-business income which under the Income-tax Act is charge able to income-tax. Thus, the additional surcharge, though levied by the Finance Act, 1963 independently of the Income-tax Act, is but a mode of levying tax on a portion of the assessee's income computed in accordance with the definition in section 2(8) of the Act of 1963. Therefore, the notice of demand under section 156 of the Income-tax Act can lawfully call for the payment of amount due from an assessee by way of additional surcharge.
For these reasons, we confirm the judgment of the High Court but in the circumstances there will be no order as to costs.
P.H.P. Appeal dismissed.
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