{"id":46393,"date":"1961-03-01T00:00:00","date_gmt":"1961-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/donald-miranda-vs-the-commissioner-of-income-tax-on-1-march-1961"},"modified":"2015-06-15T06:57:03","modified_gmt":"2015-06-15T01:27:03","slug":"donald-miranda-vs-the-commissioner-of-income-tax-on-1-march-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/donald-miranda-vs-the-commissioner-of-income-tax-on-1-march-1961","title":{"rendered":"Donald Miranda vs The Commissioner Of Income-Tax, … on 1 March, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Donald Miranda vs The Commissioner Of Income-Tax, … on 1 March, 1961<\/div>\n
Equivalent citations: 1961 AIR 1233, \t\t 1962 SCR (1) 133<\/div>\n
Author: K L.<\/div>\n
Bench: Kapur, J.L.<\/div>\n
           PETITIONER:\nDONALD MIRANDA\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME-TAX, BOMBAY CITY-II(and,connected\n\nDATE OF JUDGMENT:\n01\/03\/1961\n\nBENCH:\nKAPUR, J.L.\nBENCH:\nKAPUR, J.L.\nHIDAYATULLAH, M.\nSHAH, J.C.\n\nCITATION:\n 1961 AIR 1233\t\t  1962 SCR  (1) 133\n CITATOR INFO :\n RF\t    1969 SC 572\t (4,5)\n\n\nACT:\nIncome Tax-Refund of excess profits tax-Liability to income-\ntax-Discontinuance of business Profits for accounting\tyear\nexempt from tax-Excess Profits Tax Act 1940 (15 of 1940), S.\n12(1)-Indian Finance Act, 1946 (7 of 1946), S.\t11(11)-India\nIncome-tax Act, 1922 (11 of.1922), SS. 10, 12.\n\n\n\nHEADNOTE:\nThe appellants were partners in a registered firm which\t was\ndissolved  on  March 24, 1945.\tA  private  limited  company\nsucceeded  to the business of the firm from March 25,  1945.\nFor the accounting period April 1, 1944, to March 24,  1945,\nthe firm was assessed to excess profits tax under the Excess\nProfits\t Tax  Act, 1940.  It had deposited certain  sums  of\nmoney  as required under s. 10 of the Indian  Finance-\tAct,\n1942,  read with S. 2 Of the Excess Profits  Tax  Ordinance,\n1943,  and  in\taccordance  with  those\t provisions   became\nentitled  to  repayment of a portion of the  excess  profits\ntax.   The appellant's claim before the Income. tax  Officer\nunder s. 25(4) of the 'Indian Income-tax Act, 1922, that  no\ntax  was payable on the profits of the firm for\t the  period\nbetween\t April 1, 1944, to March 24, 1945, was allowed,\t but\ntheir  plea that the amount of refund of the excess  profits\ntax was business profit and therefore similarly exempt\tfrom\ntax, was rejected.  The High Court, on a reference, took the\nview that the amount refunded was income from other  sources\ntaxable under s. 12 Of the Indian Income-tax Act, 1922,\t and\nthat,  therefore,  the appellants were not entitled  to\t the\nbenefit of S. 25(4) Of that Act.\nHeld,  that  in view of s. 12(1) of the Excess\tProfits\t Tax\nAct,  1940, and s. II(II) of the Indian Finance\t Act,  1946,\nthe  amount  refunded  was  income  from  business  for\t the\npurposes  of  the Indian Income-tax Act, 1922, and  did\t not\nlose its character which it had before the deposit.  It fell\nunder s. 10 of the Indian Income-tax Act and was, therefore,\nexempt under S. 25(4) of that Act.\nMc  Gregor and Baljbur Ltd. v. Commissioner  of\t Income-tax,\nBengal,\t [1959]\t 36 I.T R. 65 and A. & W.  Nesbitt  Ltd.  v.\nMitchell, [1926] II T.C. 2II, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 173 to\t 175
\nof 1960.\n<\/p>\n
134<\/span><\/p>\n
Appeals\t from the judgment and orders dated March 11,  1958,
\nof the Bombay High Court in I. T. R. No. 36 of 1957.
\nof…A.\t  V.  ViSwanatha  Sastri,  S.  M.  Dubash   and\t  G.
\nGopalakrishnan, for the appellants.\n<\/p>\n
K. N. Rajagopal Sastri and D. Gupta, for respondents.
\n1961.  March 1. The Judgment of the Court was delivered by
\nKAPUR, J.-These are three appeals pursuant to a\t certificate
\nunder\ta.  66A(2)  of\tthe  Indian  Income-tax\t Act,\t1922
\n(hereinafter  called  the ‘Act), against  the  judgment\t and
\norders\tof the High Court of Bombay in Income-tax  Reference
\nNo. 36 of 1957.\n<\/p>\n
The appeals though directed against the same order are three
\nin  number  because each partner of the firm has  brought  a
\nseparate  appeal.  The firm was carrying on the business  of
\nwine  merchants at Bombay and came into existence  prior  to
\nApril  1,  1939.  The firm had been assessed  to  income-tax
\nunder  the  provisions of the Income-tax Act of\t 1918.\t The
\nfirm  which  was  registered under  the\t provisions  of\t the
\nIncome-tax  Act\t of 1922 (hereinafter termed  the  Act)\t was
\ndissolved on March 24, 1945, and from the day following that
\ni.e.  March 25, 1945, a Private limited company i.e.  S.  S.
\nMiranda and Co. Ltd. succeeded to the business of the  firm.
\nA claim made under s. 25(4) of the Act to the effect that no
\ntax  was payable on the profits of the registered  firm\t for
\nthe  period  between April 1, 1944, to March 24,  1945,\t was
\nallowed.   In  respect of the chargeable  accounting  period
\nApril  1, 1944, to March 24, 1945, the registered  firm\t was
\ntaxed  to  excess profits tax under the Excess\tProfits\t Tax
\nAct,  1940.  It also deposited as required certain  sums  of
\nmoney tinder s. 10 of the Finance Act, 1942, read with s.  2
\nof  the Excess Profits Tax Ordinance, 1943.   In  accordance
\nwith those provisions the firm became entitled to  repayment
\nof a portion of the excess profits tax amounting to a sum of
\nRs.  2,35,704.\t The shares of the three  partners  who\t are
\nrespective appellants in
\n135<\/span>
\nthe  three  appeals were James Miranda Rs..  58,926,  Donald
\nMiranda Rs. 58,926 and Mrs. N. Q. Miranda Rs. 1,17,854.\t  It
\nwas submitted that the amount refunded, was business  profit
\nand therefore exempt con from tax under s. 25(4) of the Act.
\nThe  Income-tax\t  Officer rejected that submission  and\t the
\nshare  of each of the appellants was assessed to  income-tax
\nand  super tax and the balance after deducting the  same  he
\nrepaid\tto  each of the partners but he\t computed  the\trate
\napplicable  to\tthe tax by including the  appellants’  total
\nbusiness income which was exempt under s;. 25(4) of the Act.
\nOn  appeal  this  assessment was confirmed  but\t on  further
\nappeal the Income-tax, Appellate Tribunal held that the\t sum
\nwhich  was  refunded  was  income  from\t business  and\t was
\ntherefore, exempt from income-tax under s. 25(4) of the Act.
\nAt  the\t instance  of the Commissioner\tof  Income-tax,\t the
\nTribunal  referred  the following question of  law  for\t the
\nopinion of the High Court:\n<\/p>\n
\t      “Whether\tthe repayment of excess profits\t tax
\n\t      made by the Central Government in pursuance of
\n\t      Section 10 of the Indian Finance Act, 1942, or
\n\t      Section 2 of the Excess Profits Tax Ordinance,
\n\t      1943,   is  profits  from\t business  for\t the
\n\t      purposes\tof  Section  25(4)  of\tthe   Indian
\n\t      Income-tax Act?”\n<\/p><\/blockquote>\n
The  High Court held that the amount so refunded was  income
\nfrom  other sources taxable under s. 12 of the Act  and\t the
\nappellants were therefore not entitled to the benefit of  s.
\n25(4) of the Act.  In dealing with the nature of the tax the
\nlearned Chief Justice said:-\n<\/p>\n
 .lm15
\n“Clearly  the view of the Legislature was that\tthis  income
\nshould\t be   treated  as  a  statutory\t income\t  with\t the
\nconsequences  that must necessarily follow by reason of\t its
\nbeing a statutory income.”\n<\/p>\n
It  was argued on behalf of the appellants that\t the  amount
\nrefunded  was  income, profits and gains from  business\t and
\nfell  under s. 10 of the Act and was therefore exempt  under
\ns. 25(4) of the Act.  For the determination of this question
\nit  is necessary to refer to the relevant provisions of\t the
\nExcess\tProfits\t Tax Act, 1940, and the Finance\t Act,  1946.
\nSection 12(1) of the Excess Profits Tax Act was as follows:-\n<\/p>\n
136<\/span><\/p>\n
.lm15
\nS….12(1) “The amount of the excess profits tax payable  in
\nrespect\t of a business for any chargeable accounting  period
\ndiminished  by any amount allowable by way of  relief  under
\nthe  provisions\t of  section 11 or section  11-A  shall,  in
\ncomputing  for the purposes of income-tax or super  tax\t the
\nprofits\t and  gains  of\t that business,\t be  allowed  to  be
\ndeducted as an expense incurred in that period.”,
\nThe  relevant part of s. 11(11) of the Indian  Finance\tAct,
\n1946, provided:–\n<\/p>\n
\t      “Any  sum being excess profits tax  repaid  in
\n\t      respect  of any chargeable  accounting  period
\n\t      under  the  provision; of section\t 10  of\t the
\n\t      Indian  Finance Act, 1942, or of section 2  of
\n\t      the Excess Profits Tax Ordinance, 1943,  shall
\n\t      be deemed to be income for the purposes of the
\n\t      Indian  Income-tax  Act  192  2,\tand   shall,
\n\t      notwithstanding  the provisions of section  34
\n\t      of  that\tAct,  be treated as  income  of\t the
\n\t      previous\tyear which constitutes\tor  includes
\n\t      the chargeable accounting period in respect of
\n\t      which the said sum is repayable:\n<\/p><\/blockquote>\n
\t      Provided\tthat any such sum repaid in  respect
\n\t      of  any profits which are. also assessable  to
\n\t      excess  profits tax under the law in force  in
\n\t      the  United Kingdom shall be treated, for\t the
\n\t      purpose of assessment to income-tax and  super
\n\t      tax,  as income of the previous  year  during.
\n\t      which the repayment is made.”\n<\/p><\/blockquote>\n
It  is not necessary to quote s. 10(1) of the  Finance\tAct,
\n1942,  or the relevant provisions of the Excess Profits\t Tax
\nOrdinance,  1943.  Section 12(1) of the Excess\tProfits\t Tax
\nAct shows that the amount of excess profits tax payable\t ,in
\nrespect\t of a business for any chargeable accounting  period
\nwas an allowable expenditure.  Under s. ll(ll) of the Indian
\nFinance\t Act,  1946, any excess profits refunded  under\t the
\nprovisions  of Indian Finance Act, 1942, or of s. 2  of\t the
\nExcess Profits Tax Ordinance, 1943, were deemed to be income
\nand were to be treated as income of the previous year  which
\nconstituted  or\t which included\t the  chargeable  accounting
\nperiod\tin  respect of ‘which the said\tsum  was  repayable.
\nThus the sum repaid was
\n137<\/span>
\nto be treated as income for the purposes of the Act for\t the
\nprevious year, notwithstanding s. 34 of the Act.
\nThe  preamble of the Excess Profits Tax Act shows  that\t the
\nobject\tof that Act was to impose a tax on  profits  arising
\nout  of certain businesses.  Therefore when any\t portion  of
\nthe  tax collected on excess profits tax was refunded  under
\nthe  provisions\t of  the Finance Act,  1942  or\t the  Excess
\nProfits\t Tail, Ordinance,’1943, it necessarily had the\tsame
\nquality\t which\tit had before the amount which\twas  charged
\nwith  the payment of tax had under the provisions  of  those
\nActs.  In a, judgment of this Court, Mc Gregor. and  Balfour
\nLtd.  v.  Commissioner of Income Tax, West Bengal<\/a>  (1),\t the
\namount\treceived as a refund by the assessee was held to  be
\nincome for the purpose of the Act and for assessment it\t was
\ntreated as income of the previous year.\t After reference  in
\nthat case to R. 4(1) of the Rules applicable to oases I\t and
\nII  of Schedule ‘D’. of the English Income Tax Act, 1918  (8
\nand 9 Geo.  V, c. 40), it was observed
\n\t       “The object and purpose of the legislation in
\n\t      each  case  is the same, and  though  the\t two
\n\t      provisions  are not ipsissima verba, they\t are
\n\t      substantially  in the same words and  also  in
\n\t      pari materia.\n<\/p>\n
\t      There  can  be  no doubt\tthat  the  intention
\n\t      underlying the two provisions is the same\t and
\n\t      the language is substantially similar.”
\nThus this Court was of the opinion that the intention of the
\nlegislature  ins. 11(14), of the Indian Finance\t Act,  1946,
\nwhich was the section applicable in that case and of R. 4(1)
\nof  the English Income Tax Act was the same.  The  operative
\nwords  of  s.  11(11) of the Finance Act, 1946,\t and  of  s.
\n11(14) of that Act are almost identical.\n<\/p>\n
It would, thus appear that the amount of excess profits\t tax
\nwas an allowable deduction for the purpose of computation of
\nthe  business profits of an, assessee under s. 12(1) of\t the
\nExcess\tProfits Tax Act and when it or a portion of  it\t wag
\nrefunded  it  had to be treated as income of  the  assessee.
\nWhen it was deposited with
\n138<\/span>
\nthe  Central Government it was a portion of the\t profits  of
\nthe business of the assessee and when it was returned to the
\nassessee  it must be restored to its character\t of being  a
\npart  of the profits of a business.  It cannot be said\tthat
\nits  nature  changes  merely because it is  refunded  as  ‘a
\nconsequence  of\t some provisions in the Finance Act  or\t the
\nExcess Profits Tax Ordinance.  Its nature remains the  same.
\nThe  effect of the deposit under the  Acts  above-mentioned,
\nwas  as\t if  a slice of the business profit  was  taken\t and
\ndeposited with the Central Government Treasury and then when
\nit  was found that a larger amount had been  deposited\tthan
\nwas exigible a portion of it was returned.  By being put  in
\na  Government Treasury it does not cease to be what  it\t was
\nbefore\ti.e. profits of a business.  As we have said  it  is
\nsignificantly  clear  from the very preamble of\t the  Excess
\nProfits\t Tax  Act  i.e., it was a  tax\timposed\t on  profits
\narising\t out of certain businesses.  An argument was  raised
\non behalf of the Commissioner that the tax was not paid\t out
\nof  the\t profits  of the business, but\tin  respect  of\t the
\nprofits.   That\t is immaterial; it was charged,\t levied\t and
\npaid  on  the  amount  by  which  the  profits\tduring\t any
\nchargeable accounting period exceeded the standard  profits.
\nIt  would  be mere quibbling with words if one were  to\t say
\nthat  it  was  not a slice taken out of\t the  profits  of  a
\nbusiness.\n<\/p>\n
In  the cage Mc Gregor and Balfour Ltd.\t v.  Commissioner,of
\nIncome\t Tax<\/a>  (1)  this\t Court\tquoted\twith  approval\t the
\nobservation, of the Master of the Rolls in
\nA.   &\tW. Nesbitt Ltd. v. Mitchell (1) where it was said:-\n<\/p>\n
\t      “But in respect of what is that payment  made?
\n\t      It is not a legacy, it is not a sum which\t has
\n\t      fallen  from the skies;-it is a sum  which  is
\n\t      repaid because there was too large a sum\tpaid
\n\t      by the company to the revenue authorities over
\n\t      the whole period ‘during which Excess  Profits
\n\t      Duty  was\t paid, and that sum,  means  and  is
\n\t      intend to represent a repayment of a sum which
\n\t      was  paid\t by  them in  respect  of  the\tduty
\n\t      charged  upon  the  excess  profits  of  their
\n\t      trading.\t It  comes  back,,  therefore,\t not
\n\t      having lost its character but being still\t the
\n\t      repayment of a sum too much, it is true-but  a
\n\t      sum taken
\n\t      (1) [1959] 36 I.T.R. 65.\n<\/p><\/blockquote>\n
\t      (2) (1926) 11 T.C. 211, 217, 218-\n<\/p><\/blockquote>\n
\t      139<\/span><\/p>\n
\t      out  of  the profits which were  made  by\t the
\n\t      company in the course of its trading, profit,;
\n\t      which at the time they were made were  subject
\n\t      to  income-tax and subject to  excess  profits
\n\t      duty,  and  that\tis  the\t character  of\t the
\n\t      repayment that has been made.”\n<\/p><\/blockquote>\n
The   amount  deposited\t comes\tback  without\tlosing\t its
\ncharacter.   No\t doubt\tthe words in the  English  Rule\t are
\n“shall\tbe  treated  as profits for the year  in  which\t the
\npayment is received”, and in B 11(11) of the Indian  Finance
\nAct,  1946,  such  sum has to be treated as  income  of\t the
\nprevious  year but as pointed out by this Court\t in  Balfour
\nand  Mc\t Gregor case (1), the intention underlying  the\t two
\nprovisions is the same and even the language used in the two
\nprovisions is substantially the same.\n<\/p>\n
Counsel\t for the Commissioner drew our attention to  Kirke’s
\nTrustees v. Commissioners of Inland Revenue (2), and it\t was
\nsubmitted  that the Lord Chancellor held at p. 329 that\t for
\nthe amount so received the assessment falls to be made under
\nCase VI of Schedule ‘D’.  Lord Shaw of Dunfermline at p. 332
\nsaid that the repayment was to be treated as trading profits
\nfor  the year of repayment and therefore assessable as\tsuch
\nunder  Schedule\t ‘D’.  He was also of the opinion  that\t the
\ncharge\twas to be one under Case VI.  Lord Sumner said\tthat
\nit became a minor matter to decide whether the charge was to
\nbe  made  under\t Case  I  or Case  VI  but  this  is  little
\nconsolation  to the respondent (the Commissioner of  Income-
\ntax) because Case VI was also dealing with taxes in  respect
\nof annual profits and gains which do not fall in one of\t the
\nother cases.\n<\/p>\n
In  our\t opinion  the  amount  refunded\t did  not  lose\t its
\ncharacter  which it had before the deposit and therefore  it
\nis an erroneous view to take that the income was  assessable
\nunder  s.  12  of the Act and not under B. 10.\t If  it\t was
\nincome\tfalling under s. 10, as in our opinion it was,\tthen
\nthe appellants were entitled to get the benefit of s.  25(4)
\nof the Act and the amount was not liable to taxation.
\nThe  appeals are therefore allowed with costs.\tOne  hearing
\nfee.\n<\/p>\n
Appeals allowed.\n<\/p>\n
(1)..[1959] 36 I.T.R. 65.\n<\/p>\n
(2)..(1926) 11 T.C. 323.\n<\/p>\n
140<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Donald Miranda vs The Commissioner Of Income-Tax, … on 1 March, 1961 Equivalent citations: 1961 AIR 1233, 1962 SCR (1) 133 Author: K L. Bench: Kapur, J.L. PETITIONER: DONALD MIRANDA Vs. RESPONDENT: THE COMMISSIONER OF INCOME-TAX, BOMBAY CITY-II(and,connected DATE OF JUDGMENT: 01\/03\/1961 BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. HIDAYATULLAH, M. SHAH, […]<\/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-46393","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDonald Miranda vs The Commissioner Of Income-Tax, ... on 1 March, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/donald-miranda-vs-the-commissioner-of-income-tax-on-1-march-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Donald Miranda vs The Commissioner Of Income-Tax, ... on 1 March, 1961 - 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