{"id":155552,"date":"1967-04-25T00:00:00","date_gmt":"1967-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sundaram-company-p-ltd-vs-commissioner-of-income-tax-on-25-april-1967"},"modified":"2015-05-28T18:42:15","modified_gmt":"2015-05-28T13:12:15","slug":"sundaram-company-p-ltd-vs-commissioner-of-income-tax-on-25-april-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sundaram-company-p-ltd-vs-commissioner-of-income-tax-on-25-april-1967","title":{"rendered":"Sundaram & Company (P.) Ltd. … vs Commissioner Of Income-Tax, … on 25 April, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sundaram & Company (P.) Ltd. … vs Commissioner Of Income-Tax, … on 25 April, 1967<\/div>\n
Equivalent citations: 1968 AIR 124, \t\t 1967 SCR (3) 798<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nSUNDARAM & COMPANY (P.) LTD.  MADURAI\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME-TAX, MADRAS\n\nDATE OF JUDGMENT:\n25\/04\/1967\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nRAMASWAMI, V.\n\nCITATION:\n 1968 AIR  124\t\t  1967 SCR  (3) 798\n\n\nACT:\nIncome-tax Act, 1922 (11 of 1922), ss. 34(1)(b),  66-Finance\nAct,   1956,  proviso  2,  Paragraph  D-Notice\t to   reopen\nassessment on the ground of \"excessive relief\" but reduction\nof rebate on super tax on the ground \"assessed at too low  a\nrate\"-Duty to enquire whether proceedings validly initiated-\n\"Rate\"\tin  s.\t34(1) if means\tfraction  of  total  income-\nReference-Duty to decide all aspects of the question of\t law\nreferred  even\tthough not specifically\t argued\t before\t the\nTribunal.\n\n\n\nHEADNOTE:\nThe  Income-tax Officer issued a notice to the assessee\t for\nreopening the assessment for the year 1956-57 on the  ground\nthat \"excessive relief\" within the meaning of s. 34(1)(b) of\nthe  Income-tax Act, 1922 had been granted to the  assessee.\nRejecting the contention of the assessee that the income had\nnot been the subject of \"excessive relief\" and therefore the\nproceedings were unauthorised and that the amount deemed  to\nhave been distributed under orders under s. 23A could not be\ntaken  into  consideration for the purpose of  reducing\t the\nrebate of super-tax admissible under proviso 2 to  paragraph\nD  of the Finance Act, 1956, the Income-tax Officer  ordered\nthat  the  rebate  of super-tax\t granted  be  reduced.\t The\nAppellate  Assistant Commissioner held that only a  part  of\nthe  amount of dividend deemed to have been declared by\t the\nassessee  could be taken into consideration  in\t withdrawing\nthe rebate of super-tax.  On appeal by the Commissioner, the\nTribunal  held\tthat the case of the assessee did  not\tfall\nwithin\tany of the situations contemplated by s. 34(1)\t(b),\nbut   confirmed\t the  order  of\t the   Appellant   Assistant\nCommissioner.  On the question \"whether the setting aside of\nthe  assessment under s. 34(1) (b) was correct in  law\"\t the\nHigh  Court  was  of  the opinion  that\t the  claim  of\t the\ndepartment to initiate proceedings under s. 34(1)(b) on\t the\nground\tthat  excessive\t relief was  allowed  could  not  be\nsustained,  but held that the proceedings under the  section\ncould be initiated on the ground that the income profits and\ngains  of the asses-see were \" assessed at too low a  rate\".\nThe  High Court did not 'record its decision on the plea  of\nthe  assessee  that  in a  proceeding  to  re-assess  income\ninitiated  on  a  notice that income  had  been\t subject  to\n\"excessive  relief\", the Income-tax Officer was\t incompetent\nto re-assess income on the footing that income was  assessed\nat  too\t low a rate.  In appeal to this Court  the  assessee\ncontended that (i) the High Court was in error in  enlarging\nthe scope of the enquiry and entering upon a question  never\nmooted\tbefore\tthe  Tribunal and (ii) by  the\tuse  of\t the\nexpression \"assessed at too low a rate\" it was intended that\nthe  jurisdiction of  the  Income-tax  Officer\twould\tbe\nattracted  only when the wrong fraction had been applied  in\nthe determination of super-tax and not when the\t computation\nof tax depended on other factors.\nHELD  : (i) The case must be remanded to the High  Court  to\ndetermine whether the proceedings were validly initiated  on\nthe notice issued against the asscssee. [807B]\n\t\t\t    799\nThe scope of the enquiry arising out of the arguments before\nthe Tribunal was not whether the assessment was proper, but,\nwhether\t the Income-tax Officer was in the circumstances  of\nthe case competent to initiate the proceeding under s. 34(1)\n(b) of the Income-tax Act for bringing to tax the  excessive\n-rebate\t granted to the assessee.  The question referred  to\nthe High Court had to be reframed accordingly- The question,\nas  framed by the Tribunal, though defective, included\tthat\nenquiry.  The High Court was, therefore, bound to decide all\naspects\t of  that question and it was wrong  in\t making\t the\nassumption that because a particular aspect of the  question\nof  law\t raised\t was  not  specifically\t argued\t before\t the\nTribunal  the  High Court could not deal with  it.  [S02D-E;\n806F-H; 807A-B]\nP.   S. Sutbramanyan, Income-tax Officer, Companies Circle I\n(1)  and  Anr. v. Simplex Mills Ltd. 48 I.T.R.\t182  (S.C.),\nreferred to.\n(ii) The High Court was right in holding that the rebate  of\ntax  and  the  reduction of  such  rebate  were\t essentially\nmatters\t of  measure or Standards of rate.   The  expression\nrate  in s. 34(1) does not mean a fraction of total  income;\nit  is\toften  used in the sense  of  standard\tor  measure.\nProvided  the  tax  is computable by the  application  of  a\nprescribed standard or measure, though not directly  related\nto  taxable income, it may be said that the tax is  computed\nat  a certain rate.  The aim and object of the Finance\tAct,\n1956, is to prescribe the standard or measure of  income-tax\nor   super-tax,\t and  an  assessee  escaping  some  of\t its\nprovisions  and\t failing to pay the full measure of  tax  is\n\"assessed at too low a rate\". [806B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2453 of 1966.
\nAppeal\tfrom the judgment and order dated August 9, 1963  of
\nthe Madras High Court in T.C. No. 152 of 1961.
\nR.   Venkatram and R, Ganapathy Iyer, for the appellant.
\nB.   Sen and R. N. Sachthey, for the respondent.
\nThe Judgment of the Court was delivered by
\nShah,  J. In Sundaram & Company\t (Private)  Ltd.-hereinafter
\ncalled\t“the  Company”-the  public  are\t not   substantially
\ninterested  within  the\t meaning of S.\t23A  of\t the  Indian
\nIncome-tax  Act,  1922.\t In dealing with the  assessment  of
\nincome\tof the Company for the assessment years\t 1946-47  to
\n1951-52,  the  Income-tax Officer, Central  Circle,  Madras,
\npassed orders under s. 23A of the Income-tax Act, 1922,\t and
\ndirected that the total income of the Company as  determined
\nin  the\t years of assessment less tax payable be  deemed  to
\nhave  been  distributed\t amongst  the  shareholders  of\t the
\nCompany\t as  on\t the  relevant dates  of  the  General\tBody
\nMeetings.  The following table sets out the relevant details
\n800<\/span>
\nAssessment     Amount of divi-\t       Date of order passed
\nyear.\t   dend deemed to\t      under s. 23A deeming
\n\t   have been dec-\t\t    dividend to have
\n\t  been declared.\n<\/p>\n
\t  lared.\n<\/p>\n
1946-47\t       46,563\t\t\t March 18,1952\n1947-48\t       43,959\t\t\t     - do-\n1948-49\t       47,829\t\t\t     - do-\n1949-50\t       97,875\t\t\t     - do-\n1950-51\t       92,591\t\t\t     - do-\n1951-52\t       25,899\t\t\t March 30, 1955\n\t      3,54,716\n<\/pre>\n
On  July 7, 1955 the Company in a general  meeting  resolved
\nthat the amount of Rs. 3,54,716\/- which was under the orders
\nof the Income-tax Officer deemed to have been distributed as
\n;dividend amongst the shareholders pursuant to orders  under
\ns. 23A of the Income-tax Act, be distributed as dividend  to
\nthe  shareholders,  and\t in  pursuance\tof  that  resolution
\nproportionate  part of the dividend due to each\t shareholder
\nwas credited to his account.\n<\/p>\n
The  Income-tax\t Officer  completed the\t assessment  of\t the
\nCompany for the year 1956-57 and determined Rs.\t 5,69,396\/as
\nits  total  income.   The Income-tax  Officer  computed\t the
\nsupertax payable by the Company under the Finance Act, 1956,
\nat  the rate of six annas and nine pies in the rupee of\t the
\ntotal income and granted a rebate at the rate of four  annas
\nin  the\t rupee in accordance with the provisions of  Cl.   D
\nproviso\t (i)  (b)  &  (ii) ,of the  Schedule  to  that\tAct.
\nSometime thereafter  the Income-tax Officer being  of  the
\nopinion\t that  excessive  relief had  been  granted  to\t the
\nCompany\t within the meaning of S. 34 (1) (b) of the  Income-
\ntax  Act, issued a notice on January 31, 1959 for  reopening
\nthe assessment for the year 1956-57.  The Company filed\t its
\nreturn of income in compliance with the notice and contended
\nthat  the proceedings commenced by the,\t Income-tax  Officer
\nwere unauthorised, because the income of the Company had not
\nbeen the subject of “excessive relief” within the meaning of
\nS.  34(1)(b),  and  that actual\t distribution  of  dividends
\nalready\t deemed to have been distributed in accordance\twith
\nthe  orders  passed  under  s.’23A  cannot  be\ttaken\tinto
\nconsideration  for  the purpose of reducing  the  rebate  of
\nsuper-tax  admissible under the proviso 2 to Paragraph D  of
\nthe Finance Act, 1956.\tThe Income-tax Officer rejected\t the
\ncontentions and ordered that the rebate of super-tax to\t the
\nextent of Rs. 80,978\/- be withdrawn.\n<\/p>\n
In  appeal  to the Appellate Assistant Commissioner  it\t was
\nheld that in the circumstances of the case, assessment could
\nbe reopened under S. 34(1) (b) on the ground that the income
\nhad’  been made the subject of “excessive relief”, but\tonly
\nRs. 77,600\/and not the whole amount of Rs. 3,54,716\/-  which
\nwas deemed to be distributed under orders under s. 23A could
\nbe taken into
\n801<\/span>
\nconsideration as dividend distributed by the Company  during
\nthe previous year relevant to the assessment year 1956-57.
\nThe  Commissioner of Income-tax appealed to  the  Income-tax
\nAppellate Tribunal.  He, contended that in the circumstances
\nof  the case the amount of Rs. 3,54,716\/- was liable  to  be
\ntaken into consideration for the purpose of withdrawing\t the
\nrebate\tof supertax admissible under the Finance Act,  1956.
\nThe Tribunal held that the case of the Company “did not fall
\nwithin\tany of the situations contemplated by  s.  34(1)(b)”
\nand  the  Company’s  income  had not  been  the\t subject  of
\nexcessive  relief  as  the rebate  of  super-tax  originally
\ngranted was out of the tax otherwise computable and not from
\nthe  assessed income.  But the Tribunal confirmed the  order
\nof  the Appellate Assistant Commissioner directing that\t Rs.
\n77,600\/-  be  taken into account in  withdrawing  rebate  of
\nsuper-tax.\n<\/p>\n
The Tribunal then referred three questions to the High Court
\nof Judicature at Madras :\n<\/p>\n
“1. Whether the Tribunal was justified in disposing of\t‘the
\nappeal as it did.?\n<\/p>\n
2. Whether the Tribunal was right in law in entertaining the
\nassessee’s  contention relating to the applicability, of  s.
\n34(1) (b) under Rule 27 of the Appellate Tribunal Rules ?\n<\/p>\n
3.   Whether the setting aside of ‘the assessment under
\ns. 3 4 (I ) (b) was correct in law ? ”\n<\/p>\n
The High Court decided in favour of the Company on the first
\ntwo  questions.\t In considering the third question the\tHigh
\nCourt  observed\t that  the  plea of  the  Company  that\t re-
\nassessment proceedings under s. 34 (I) (b), on the ground of
\n“excessive  relief  cannot be initiated, must  be  accepted.
\nThe  Court then proceeded to consider whether  allowance  of
\nrebate\tto  which  the assessee was not\t entitled,  did\t not
\namount\tto assessing income at too low a rate, and  observed
\nthat  “there can be no question that the rebate of tax\trate
\nand a reduction of such rebate is essentially the arithmetic
\nof rate.  Reading however the provisions of the Finance Act,
\n1956,  as a whole in the perspective that its chief aim\t and
\nobject is to prescribe the rate of income-tax and super-tax,
\nit  seems  to  us  that an assessee  escaping  some  of\t its
\nprovisions  and\t failing to pay the full measure of  tax  is
\nassessed  at  too low a rate”.\tThe High  Court\t accordingly
\nheld that proceedings under s. 34(1) (b) could be  initiated
\nwhen  rebate in the payment of super-tax was -ranted to\t the
\nassessee without reducing it in the circumstances set out in
\nthe  second  proviso  to  Part\t11  of\tthe  First  Schedule
\nParagraph D in the Finance Act, 1956, on the ground that the
\nincome,\t profits and gains of the Company were\tassessed  to
\ntax
\n802<\/span>
\nat  too\t low  a rate.  The High\t Court\tanswered  the  third
\nquestion  in favour of the Commissioner.  Against the  order
\npassed by the High Court on the third question, this  appeal
\nis  preferred by the, Company.\tThe Commissioner of  Income-
\ntax  has not challenged the correctness of the decisions  on
\nQuestions I & 2.\n<\/p>\n
We  are unable to agree with counsel for the  assessee\tthat
\nthe  first  question raised an enquiry not only\t as  to\t the
\ncorrectness  of the procedure followed by the Tribunal,\t but
\nalso  to the right of the Income-tax Officer to\t initiate  a
\nproceeding  under S. 34(1) (b) to bring to tax rebate  which
\nwas not reduced.  In terms, the first question relates to  a
\nmatter\tof  procedure : and in the answer recorded  to\tthat
\nquestion  it is not implied that the Income-tax Officer\t had
\nno power to initiate the proceeding under S. 3 4 ( 1 ) (b).
\nThe  third  question raised by the Tribunal  was  defective.
\nThe  true scope of the enquiry arising out of  the  argument
\nbefore the Tribunal was not whether the order of  assessment
\nwas proper. but whether the proceeding for re-assessment was
\nproperly initiated under S. 34(1) (b).\tThat is how the High
\nCourt  also understood the question.  We therefore  re-frame
\nthe question as follows :\n<\/p>\n
\t      “Whether\tthe  Income-tax Officer was  in\t the
\n\t      circumstances   of  the  case   competent\t  to
\n\t      initiate the proceeding under s. 34 (I) (b) of
\n\t      the Indian Income-tax Act for bringing to\t tax
\n\t      the  excessive rebate granted to the  assessee
\n\t      ?”\n<\/p><\/blockquote>\n
Section 34(1) (b) of the Indian Income-tax Act, as it  stood
\nat the relevant time, provided
\n\t      “If-\n<\/p>\n
\t      (a)\n<\/p>\n
\t      (b)   notwithstanding  that there has been  no
\n\t      omission or failure as mentioned in clause (a)
\n\t      on  the part of the assessee,  the  Income-tax
\n\t      Officer  has in consequence of information  in
\n\t      his possession reason to believe that  income,
\n\t      profit% or gains chargeable to income-tax have
\n\t      escaped assessment for any year, or have\tbeen
\n\t      under-assessed, or assessed at too low a rate,
\n\t      or  have\tbeen made the subject  of  excessive
\n\t      relief  under this Act or that excessive\tloss
\n\t      or depreciation has been computed,
\n\t      he  may in cases falling under clause  (a)  at
\n\t      any time and in cases falling under clause (b)
\n\t      at  any time within four years of the  end  of
\n\t      that  year, serve on the assessee, or, if\t the
\n\t      assessee\tis  a  company,\t on  the   principal
\n\t      officer
\n\t      803<\/span>
\n\t      thereof, a notice containing all or any of the
\n\t      requirements which may be included in a notice
\n\t      under  subsection\t (2) of section 22  and\t may
\n\t      proceed  to  assess or reassess  such  income,
\n\t      profits  or  gains or recompute  the  loss  or
\n\t      depreciation allowance; and the provisions  of
\n\t      this  Act\t shall,\t so far\t as  may  be,  apply
\n\t      accordingly  as  if the notice were  a  notice
\n\t      issued under that sub-section
\nIt  was held by the High Court of Bombay in P. S.  Subraman-
\nyan,  Income-tax Officer, Companies Circle I (1) Bombay\t and
\nAnother\t v. Simplex Mills Ltd.<\/a>(1) that “the relief  referred
\nto in s. 34(1) (b) of the Income-tax Act, 1922, can only  be
\nsuch  relief as is granted to the assessee by reason of\t his
\nincome, profits and (rains being chargeable to tax.  It\t is,
\ntherefore, referable to the various kinds of relief afforded
\nto  the\t assessee under the Act in respect  of\this  income,
\nprofits and gains, such, for instance, as are granted  under
\nss.  15A, 15C, 49A, 49B, 49C, 49D and 60 of the\t Act.”\tThis
\nCourt  affirmed the judgment of the Bombay High Court in  P.
\nS.  Subramanyan, Income-tax Officer, Companies Circle I\t (1)
\nand Another v. Simplex Mills Ltd. 2 In Simplex Mills(2) case
\nadvance\t tax  paid by the assessee for the  assessment\tyear
\n1952-53\t was  found refundable and  the\t Income-tax  Officer
\nallowed\t interest  on the tax paid under s.  18A(5)  of\t the
\nIncometax Act, 1922, as it then stood.\tThe Act was  amended
\nby the Income-tax (Amendment) Act, 1953, with  retrospective
\neffect\tfrom April 1, 1952, and it was found  that  interest
\nallowed\t to  the  Company  was\texcessive.   The  Income-tax
\nOfficer then initiated a proceeding under s. 34 (1 ) (b)  to
\nreassess the tax on the ground that income for that year had
\nbeen  under-assessed  and  had\tbeen  made  the\t subject  of
\nexcessive relief.  The Bombay High Court rejected the  claim
\nof  the\t Income-tax Officer, and this Court  held  that\t the
\noriginal  assessment  could  not be reopened  under  s.\t 34,
\nbecause\t it could not be said either that there\t was  under-
\nassessment  of\tthe  income, or that  excessive\t relief\t was
\ngranted.   In  the light of that judgment,  the\t High  Court
\nopined\tthat  the  claim of the\t Department  to\t initiate  a
\nproceeding  under s. 34(1) (b) on the -round that  excessive
\nrelief\twas  allowed could not be sustained.  But  the\tHigh
\nCourt  held  that  a proceeding for  reassessment  could  be
\ninitiated on the ground that income had been assessed at too
\nlow a rate.  Counsel for the Company contends that the\tHigh
\nCourt was in error in proceeding to enlarge the scope of the
\nenquiry\t and  in entering upon a question  which  was  never
\nmooted before the Tribunal.\n<\/p>\n
Section\t 2 of the Finance Act, 1956, provides insofar as  it
\nis material, that :\n<\/p>\n
(1)  48 I.T.R. 980.\n<\/p>\n
(2) 48 1.T.R. 182 (S.  C.)
\n804<\/span>
\n.lm15
\n“Subject to the provisions of sub-sections (2), (3), (4) and
\n(5), for the year beginning on the 1st day of April, 1956,-\n<\/p>\n
(a)  income-tax\t shall be charged at the rates specified  in
\nPart I of the First Schedule………\n<\/p>\n
(b)  rates  of super-tax shall, for the purposes of  section
\n55   of\t  the\tIndian\t Income-tax   Act,   1922   (XI\t  of
\n1922)\t\t. . ., be those specified in Part 11 of\t the
\nFirst Schedule……………..\n<\/p>\n
Part 11 of the First Schedule specifies the rates of  super-
\ntax.\n<\/p>\n
Clause D provides :\n<\/p>\n
\t      “In the case of every company-\n<\/p><\/blockquote>\n
\t      on     the    whole    of\t    total     income\n\t      Rate\n\t\t\t\t      Six annas and nine\n\t\t\t\t\t pies in the rupee.\n\t      Provided that-\n\t      (i)\n<\/pre>\n
\t      (ii)  a  rebate at the rate of four annas\t per
\n\t      rupee of the total income shall be allowed  in
\n\t      the  case\t of  any  company  which   satisfies
\n\t      condition\t (a), but not condition (b)  of\t the
\n\t      preceding clause; and\n<\/p><\/blockquote>\n
\t      (iii)
\n\t      Provided further that-\n<\/p><\/blockquote>\n
\t      (i)   the\t  amount   of\tthe   rebate   under
\n\t      clause (i) or clause (ii), as the case may be,
\n\t      of  the preceding proviso shall be reduced  by
\n\t      the  sum, if any, equal to the amount  or\t the
\n\t      aggregate of the amounts, as the case may\t be,
\n\t      computed as here-\n<\/p><\/blockquote>\n
\t      under :-\n<\/p><\/blockquote>\n
\t      (a)   on\tthe  amount  representing  the\tface
\n\t      value of any bonus shares or the amount of any
\n\t      bonus  issued to its share-holders during\t the
\n\t      previous\tyear with a view to  increasing\t the
\n\t      paid-up capital, except to the extent to which
\n\t      such  bonus shares or bonus have\tbeen  issued
\n\t      out of premiums received in cash on the  issue
\n\t      of  its shares; and at the rate of  two  annas
\n\t      per rupee.\n<\/p><\/blockquote>\n
\t      805<\/span><\/p>\n
\t      (b)   in\taddition, in the case of  a  Company
\n\t      referred\tto in clause (ii) of  the  preceding
\n\t      proviso\twhich\thas   distributed   to\t its
\n\t      shareholders  during the previous\t year  divi-
\n\t      dends in excess of six per cent of its paid-up
\n\t      capital,\tnot  being dividends  payable  at  a
\n\t      fixed rate-\n<\/p><\/blockquote>\n
 on  that part of the said  divi-……at  the
\n\t      rate
\n dends\twhich exceeds 6 per cent.      of  two
\n\t      annas
\n but does not exceed 10 per\t\t   per
\n\t      rupee.\n<\/p>\n
 cent. of the paid-up capital;\n<\/p>\n
 on  that  part of the said divi-      at  the\n\t      rate of'\n dends\twhich  exceeds 10  per\tcent\t three\n\t      annas\n of the paid-up capital;\t\t   per\n\t      rupee.\n<\/pre>\n
Paragraph-D read with s. 2(b) of the Finance Act, 1956 fixes
\nthe  rate of super-tax payable by Companies for the  purpose
\nof  s. 55 of the Indian Income-tax Act.\t From the  super-tax
\ndeclared  payable, in certain conditions rebate is  granted,
\nand  that rebate is also related to the total income of\t the
\nassessee.  By the second proviso, part of the rebate may  be
\nwithdrawn,  if the Company has in the previous\tyear  issued
\nbonus shares or bonus or has distributed dividend in  excess
\nof six per cent. of its paid-up capital.  The super-tax\t and
\nthe rebate admissible are both related to the total  income,
\nwhereas the reduction of rebate is related to the face value
\nof  the bonus shares or of the value of bonus or the  amount
\nof dividends distributed.  Super-tax payable by a Company is
\ntherefore  determined  as a fraction of\t the  total  income,
\nreduced by a percentage of the value of the bonus shares  or
\nbonus or dividends distributed.\n<\/p>\n
Counsel\t for the Company contends that the  expression\t“too
\nlow a rate” used in s. 34(1) (b) must, having regard to\t the
\ncontext in which the expression is used and in the scheme of
\nthe  Indian  Income-tax\t Act,  be  regarded  merely  as\t the
\nfraction which determines tax liability of the assessee, but
\nwhen  in  computing  super-tax\tliability,  the\t  Income-tax
\nOfficer\t has  after determining the amount by  applying\t the
\nfraction  to reduce the resultant by reference to  a  factor
\nunrelated  to  total income, it cannot be said that  tax  is
\ncharged\t  at  a\t certain  rate.\t  Counsel  says\t  that\t the
\nLegislature has not used the expression “assessed at too low
\nan amount” but the expression used is “assessed at too low a
\nrate”\ttherefore   says  counsel  for\t the   Company\t the
\njurisdiction  of  the Income-tax Officer will  be  attracted
\nonly when the wrong fraction
\n806<\/span>
\nhas been applied in the determination of super-tax, and\t not
\nwhen the computation of tax depends on other factors.
\nWe  are\t unable to accept this contention.   The  assumption
\nthat  the  expression “rate” has been used in  s.  34(1)  as
\nmeaning -a fraction of total income is, in our judgment, not
\nwarranted.   By\t the  use of the expression  “rate”  in\t the
\ncontext\t in which it occurs, undoubtedly a relation  between
\nthe taxable income and the tax charged is intended, but\t the
\nrelation  need\tnot  be\t of the\t nature\t -of  proportion  or
\nfraction.  The expression “rate”‘ is often used in the sense
\nof a standard or measure.  Provided the tax is computable by
\nthe application of a prescribed standard or measure,  though
\nnot directly related to taxable income, it may be called tax
\ncomputed  at a certain rate.  We agree with the\t High  Court
\nthat the rebate of tax and the reduction of such rebate\t are
\nessentially  matters of measure or standards of\t rate.\t The
\nchief  aim  and\t object\t of the Finance\t Act,  1956,  is  to
\nprescribe  the standard or measure of income-tax and  super-
\ntax  and  it  seems that an assessee escaping  some  of\t its
\nprovisions,  and failing to pay the full measure -of tax  is
\nassessed at too low a rate.\n<\/p>\n
But  the view we have taken is not sufficient to dispose  of
\nthe  appeal.  It may be recalled that the  question  arising
\nout of the order of the Tribunal was about the competence of
\nthe Income-tax Officer, to initiate proceedings under S.  34
\n(I)  (b).   It\tis true that it was not\t argued\t before\t the
\nTribunal on behalf of the Company that on the notice  served
\nby the Income-tax Officer proceedings for reassessment could
\nonly  be  initiated on the ground that income had  been\t the
\nsubject\t of excessive relief, and not on any  other  ground.
\nBut  the  Company  did contend that the\t initiation  of\t the
\nreassessment proceeding was invalid, and the plea, that\t the
\ninitiation was invalid because the notice was defective\t was
\nonly  tin  aspect of the plea raised by\t the  Company.\t The
\nquestion  is  -originally  raised by the  Tribunal,  and  as
\nreframed by us, includes that enquiry.\n<\/p>\n
Counsel for the Company did argue before the High Court that
\nin  a  proceeding to reassess income initiated on  a  notice
\nthat  income  has  been subject\t to  excessive\trelief,\t the
\nIncome-tax Officer was incompetent to reassess income on the
\nfooting that income was assessed at too low a rate, but\t the
\nHigh Court did not record their decision on that plea : they
\nmerely\tsuggested  that it will be open to  the\t Company  to
\nraise  the  question when the matter is again taken  up\t for
\nconsideration.\t If however the question arising out of\t the
\norder  of the Tribunal was, as correctly pointed out by\t the
\nHigh  Court,  one  about  the  “validity  of  initiation  of
\nproceeding under s. 34(1) (b)”, the High Court was bound  to
\ndecide\tall  aspects of that question  raised  before  them,
\nbefore\trecording an answer : if they did not, the  Tribunal
\nwould
\n807<\/span>
\nbe powerless to enter upon an enquiry of any other aspect of
\nthe question after answer to the question is recorded by the
\nHigh,  Court.\tWe are unable to agree with  the  assumption
\nmade  by the High Court that because a particular aspect  of
\nthe  question  of  law raised was  not\tspecifically  argued
\nbefore\tthe Tribunal, the High Court cannot deal  with\tthat
\naspect.\n<\/p>\n
We  are,  in the state of the record before  us,  unable  to
\nrecord\tan  answer  to the question, and the  case  must  be
\nremanded  to  the  High\t Court\tto  determine  whether\t the
\nproceedings  were  validly initiated on\t the  notice  issued
\nagainst\t the Company.  The notice which was served upon\t the
\nCompany\t is not included in the paper book prepared for\t use
\nin this Court.\tThe notice must of necessity be part of\t the
\nrecord\tof the Income-tax Officer, even if it be not on\t the
\nrecord of the Tribunal.\t It will be open to the High  Court,
\nin determining the contention raised by the Company, to call
\nfor  a supplementary statement of the case relating  to\t the
\nform  and  contents of the notice and the  validity  thereof
\nfrom the Tribunal.  After receiving the supplementary state-
\nment, if any, the High Court will proceed to dispose of\t the
\nthird question in the light of the reasons set out by us  in
\nthis  judgment.. Costs of this appeal will be costs  in\t the
\nHigh Court.\n<\/p>\n
Y.P.\t\t\t\t\t Appeal\t   remanded.\nSupCI\/67-8\n808<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sundaram & Company (P.) Ltd. … vs Commissioner Of Income-Tax, … on 25 April, 1967 Equivalent citations: 1968 AIR 124, 1967 SCR (3) 798 Author: S C. Bench: Shah, J.C. PETITIONER: SUNDARAM & COMPANY (P.) LTD. MADURAI Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX, MADRAS DATE OF JUDGMENT: 25\/04\/1967 BENCH: SHAH, J.C. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-155552","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSundaram & Company (P.) 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