1971 PLP 1066 (PTD)

K. R. Ramamani and S. V. Subramaniam for the Assessee. V. Balasubrahmanyan and J. Jayaraman for the Commis sioner. VEFRASWAMI, J.‑--This common reference under section 66(l) of the Indian Income‑tax Act relates to the assessment years 1953 54 to 1955‑

56. The assessee, one K.V. AL. M. Ramanathan Chettiar, who is now dead and succeeded by his legal representa tives, was doing money‑lending business in Malaya as well as in this country. It appears, he also owned rubber gardens in that foreign territory. The point in the reference turns on the proper application of section 49‑D of the Income‑tax Act to the facts In each of the years. Three questions have been formulated for the first year and two common questions for the next two years. The first question as to the jurisdiction of the Commissioner to revise an order of refund made by the Income‑tax Officer on his view of section 49‑D is not pressed by the assessee and it is, therefore, answered against him. The two other questions in that year are : "(2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in its view that the order of refund under section 48 read with section 49‑D is independent and distinct from the assessment order? (3) Whether, on the facts and in the circumstances of the case, the Tribunal is right in confirming the computation of relief as modified by the Commissioner?" The two common questions for the last two years are much to the same effect. It may be seen that all these questions, as we said, revolve on the effect of section 49‑D on the facts. On a certain view of the section the Income‑tax Officer gave double taxation relief which was not acceptable to the Commissioner of Income‑tax who re‑computed the relief which necessitated recovery of the excess relief that had been directed by the Income‑tax Officer. To appreciate the point it is enough to notice the facts relevant to the first year. There is no dispute that the assessee made a foreign income of Rs. 2,22,

532. He returned a business loss of Rs. 68,858 and an income of Rs. 39,142 under the head "Other sources" for purposes of the Indian income‑tax. The Income‑tax Officer allowed double taxation relief on a sum of Rs. 1,92,

816. He arrived at this' figure by adding the Indian income under the bead "Other sources" to the head "Foreign income" and deduct ing from the total the loss of Rs. 68,

858. The Commissioner of Income‑tax considered that relief was permissible only on a Burn of Rs. 1,53,

674. In his view, since Rs. 2,22,532 related to foreign business income, the loss in India under a similar head alone could be deducted and the Indian income from other sources could not be taken. into account at all. It was on this process of reasoning he arrived at the figure of Rs. 1,53,674 for computing the double tax relief. In our opinion, the conclusion arrived at by the Commissioner of Income‑tax is correct. But we are not prepared to go by the' mode of the Commissioner to arrive at that result. The crux of double tax relief under section 49‑D is to be found in the identity of the income from Indian and foreign sources which has suffered tax at both ends and numerical and comparative equivalence of the identical income subjected to Indian as well as foreign income‑tax. The only and primary question for this purpose is to examine whether any part of the income charged try Indian income‑tax has also been charged to tax under a foreign jurisdiction. Any other mode of approach from the standpoint of the computation of the total world income for purposes of the Indian charge including foreign income and of the complex process of granting allowances, deductions and set‑off of losses in quantifying Indian tax is likely to confuse the issue and involve the enquiry in a wrong perspective. Section 49‑D grants relief on "such doubly taxed income" which has reference to the factual double incidence under‑ two different jurisdictions of tax on identical amount of income. Whatever reasoning or process is applied its sole purpose cannot but be to reach that factual doubly taxed income, that is to say, an identical income on which two taxes have been imposed, one under the Indian jurisdiction and the other by a foreign authority. A departure from tars procedure is not likely to lead to a correct assessment of the relief, but nay lead to grant of relief where none is justified. By whatever process the question is approached, the sum of Rs. 39,142, which the assessee derived in the first year from "Other sources", cannot, on any view of the matter, be said to have suffered foreign income‑tax besides the Indian income‑tax. That being the case, we fail to see how, by a mere jugglery of figures and the computation thereof, double income‑tax relief be granted in respect of this sum which has suffered but one tax under the provisions of the Indian Income‑tax Act. it has been argued that for determining total world income for the purpose of the Indian Income‑tax Act, the sum of Rs. 39,142 comes into the computation. That is perfectly true. But it does not follow from it that merely because it comes into the computation, it has also suffered double tax. The view that we have expressed receives support from the ratio of Commissioner of Income‑tax v. Arunachalam Chettiar ((1963) 49 I T R 574.). Our attention has been invited to Commissioner of Income‑tax v. New Citizen Bank of India Ltd. ((1965) 58 I T R 468). But we find that the Court there was not concerned with section 49‑D, but a rule providing for double income‑tax relief in respect of Native State taxation. The questions referred to us are answered against the assessee with costs, one set. Counsel's fee Rs, 250.