1972 PLP 429 (PTD)

VEERASWAMI, J,‑

This is a petition to quash an order of the Third Income‑tax Officer, Madurai‑

2. The order related to the assessment year 1903‑

64. The petitioner, The Madurai District Central Co‑operative Bank Limited, was assessed to income‑tax and super tax which amounted to Rs. 23,845.47. The tax was computed on a total taxable income of Rs. 51,763, while actually, the income taken for purposes of rate amounted to Rs. 9,48,

335. Applying the Finance Act, 1963, the residual income was determiner) at Rs. 5,39,

386. There is no dispute that the computation of the residual income was strictly in terms of section 2(8) of the Act. The additional surcharge leviable on the residual income was fixed at Rs. 52,828.60, the total tax payable by the petitioner thus amounting to Rs. 76,674.07. The contention for the petitioner is that the provision relating to the additional surcharge levied on the residual income is not valid, inasmuch as it goes beyond the taxable income computed for purposes of income‑tax. The point is also put slightly in a different way, viz., the Finance Act cannot validly subject to additional surcharge an income, which, under the provisions of the Income‑tax Act, was exempt and not liable to charge. Section 4 of the Income‑tax Act charges the total income of the previous year or previous years of every person at the rate or rates prescribed by any Central Act enacted for the purpose. Section 81, which is found in Chapter VII relating to income forming part of total income on which no income tax is payable, provides that income‑tax shall not be payable by a co‑operative society in respect of profits and gains of business carried on by it, this exemption being subject to certain conditions. Section 2(1)(a)(ii) of the Finance Act, 1963, states that, subject to the provisions of the other subsections, for the assessment year commencing on the 1st day of April 1963. income‑tax shall be charged at the rates specified in Part I of the First Schedule and, fn the cases to which Paragraphs A and C of that Part apply, income‑tax shall be further increased by an additional surcharge for purposes of the Union calculated in the manner provided in the Schedule. With reference to these provisions, we are unable to find any support for the objection raised by the petitioner. From the fact that under section 81 of the Income‑tax Act, the business income of a co‑operative society, like the assessee, is exempt from tax, it does not follow that such income was never part of, or has ceased to be part of, the total income of the previous year. The exemption provided by section 81 is not in terms of a deduction of the business income from the total income. Chapter VII itself is captioned "Income forming part of total income which no income‑tax is payable". Quite part from this it seems to us to be obvious that, before exemption of tax is claimed, the income with reference to which the claim is made must necessarily be part of the total income of the previous year. It is only then that the question if exemption from tax can arise. Unlike deduction of income, which by that process ceases to be part of the income, income hat is exempt from tax but has once been computed does not ease to be part of the total income of the previous year. The petitioner relies on Commissioner of Income‑tax v. Khatau Makanji Spinning & Weaving Company ((1960) 40 I T R 189), but we fail to see what assistance it gives to him in the instant case. All that was decided in that case was that, in view of the terms of section 3 if the Income‑tax Act, 1922, income‑tax was levied on the income of the previous year and not on something which was not the income of the previous year, or made fictionally to the excess dividend in that case, which was subjected to the additional tax, was not shown or not deemed by the particular Finance Act to be part of the total income of the previous year. In such circumstances, the Supreme Court agreed with the High Court of Bombay that the Finance Act had misfired, because it did not resort to legislation which would have conformed to the subject for which the Finance Act was passed "very year. Observed the Supreme Court: "This fiction, as we have already pointed out, provides only that the dividends shall be deemed to be out of the profits not of the previous year under assessment but of some other years. What the Finance Act fails to do is to make them 'total income, so as to take in the rate which is prescribed for the total income in the proviso. Unless the Finance Act stated that after the working out of the fiction the profits of the back year or years shall be deemed to be a part of the total income of the previous year under assessment, the purpose of the Act clearly fails." That was the basis for the decision of the Supreme Court. The position is very different in the case before us, where‑and this is not actually disputed by counsel for the petitioner ‑ the income which was exempt from tax under section 81 had formed part of the total income of the previous year. There was no need, therefore, for the Finance Act to make any deeming provi sion making what was not the income of the previous year as such income by a fiction. It is next contended that the language of section 2(1)(a)(ii) of the Finance Act is not appropriate for levy of additional surcharge on income exempted from tax under the Income‑tax Act. It is said that it is only where a tax can be levied that any question of its further increase by an additional surcharge for purposes of the Union can arise, and that, if there, was no tax at all levied under the statutory exemption, there s no basis for any increase. It seems to us that the language aforesaid is adopted to conform to the words used by article 271 of the Constitution, The increase in the tax is for purposes of the Union, and such increase being not part of the income‑tax, is not divisible as between the States on the prescribed percentage basis. But the point remains whether the additional surcharge levied can be said to be an increase of the tax for Union purposes. In our view, where a part of the income is not chargeable to tax at all, it may be inappropriate to increase the tax, which did not exist, by the additional levy. But this is not such a case. The income of the assessee from its business carried on as a co‑operative society was part of the total income as we have already mentioned, and it was chargeable to tax under sec tion

4. The charge would h ve been laid but for the exemption provided by section

81. In such a context, we think that, though the tax, because of the exemption, is not actually levied and collected, it will not be inappropriate to regard the additional surcharge levied as an increase to the tax, which, though charge able, is not actually levied and collected because of the exemption. The petition is dismissed with costs. Counsel's fee, Rs. 250.