{"id":64269,"date":"1997-03-21T00:00:00","date_gmt":"1997-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-ms-banque-nationale-de-paris-on-21-march-1997"},"modified":"2017-01-27T23:30:22","modified_gmt":"2017-01-27T18:00:22","slug":"commissioner-of-income-tax-vs-ms-banque-nationale-de-paris-on-21-march-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-ms-banque-nationale-de-paris-on-21-march-1997","title":{"rendered":"Commissioner Of Income Tax, … vs M\/S. Banque Nationale De-Paris on 21 March, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Income Tax, … vs M\/S. Banque Nationale De-Paris on 21 March, 1997<\/div>\n
Author: Pattanaik<\/div>\n
Bench: S.C. Agrawal, G.B. Pattanaik<\/div>\n
           PETITIONER:\nCOMMISSIONER OF INCOME TAX, BOMBAY\n\n\tVs.\n\nRESPONDENT:\nM\/S. BANQUE NATIONALE DE-PARIS\n\nDATE OF JUDGMENT:\t21\/03\/1997\n\nBENCH:\nS.C. AGRAWAL, G.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t       J U D G M E NT
\nPATTANAIK, J.\n<\/p>\n
     This appeal by special leave is against the judgment of
\nthe Bombay  High Court\tin Income  Tax Reference  No. 86  of
\n1970. At the instance of the Revenue on an application being
\nfiled under  Section 256(1) of the Income Tax Act, 1961, the
\nTribunal referred  the following  two questions\t to the High
\ncourt for  being answered  and the  High Court answered both
\nthe questions  in the  affirmative in favour of the assessee
\nand against the Revenue.\n<\/p>\n
The two questions are:-\n<\/p>\n
     “(1)   Whether, on the facts and in
\n     the  circumstances\t  of  the  case,
\n     Income by\tway of\tany “interest on
\n     securities”      received\t    from
\n     Government could be excluded in the
\n     computation of  chargeable\t profits
\n     in terms of Clause (x) of Rule 1 of
\n     the First\tschedule too  the  super
\n     profits Tax Act, 1963.\n<\/p><\/blockquote>\n
     (2) Whether  , on\tthe fact  and in
\n     the Circumstances of the case , the
\n     Tribunal was  right in holding that
\n     only the  proportionate interest of
\n     Rs. 5,19,804\/- on borrowings should
\n     be\t deducted   from  the\tinterest
\n     amount of\tRs. 12,93,828\/- received
\n     by the  assessee  from  the  Indian
\n     concerns, and  not the whole of the
\n     interest amount  of Rs. 10,12,252\/-<\/p><\/blockquote>\n
     paid by   the  assessee to\t various
\n     parties, in  order to determine the
\n     net  interest     income\tfor  the
\n     purposes  of   exclusion  from  the
\n     chargeable\t profits   in  terms  of
\n     Clause(X) of  Rule 1  of the  First
\n     Schedule to  the super  profits Tax
\n     Act, 1963.”<\/p><\/blockquote>\n
     The short facts leading to the questions being referred
\nare that  the assessee\tM\/s. Banque  Nationale De-Paris is a
\nnon-resident company  and admittedly  it had  not  made\t any
\narrangement for declaration of payment of dividends in India
\nduring the calendar year 1961. A sum of Rs. 2,18,802\/- which
\nthe assessee had received towards interest on securities had
\nbeen included\tin  the\t assessee’s  total  income  for\t the
\npurpose of  assessment. The  assessee’s contention was\tthat
\nthe super  profits Tax\tassessment made\t by the Departmental
\nAuthority is  erroneous as  the\t assessee  was\tentitled  to
\nexclusion of  the aforesaid interest amount in computing the
\nchargeable   profits in accordance  with Clause(X) Rule I of
\nthe First  Schedule of\tthe super  Profits Tax Act, 1963, as
\nthe entire  interest  amount  had  been\t received  from\t the
\nGovernment. Since  the super  profits Tax  officer  did\t not
\nexclude the  aforesaid amount  as contended  by the assessee
\nthe matter was carried in appeal to the Appellate  Assistant
\nCommissioner. The  said Appellate  Authority  was    of\t the
\nopinion that  the interest  on security\t received  from\t the
\nGovernment was\tto be  excluded from the chargeable  profits
\nfor  the   purpose  of\t super\tprofits\t Tax  assessment  in
\naccordance with\t clause X Of Rule I of the First Schedule of
\nthe  super   profits  Tax   Act\t but   the  said   Assistant
\nCommissioner Came  to the  Conclusion  that  the  figure  of
\nincome from  interest on security which the assessee claimed
\nto be  deducted in  computing the chargeable  profits is not
\ncorrect and  it accordingly reduced the same to Rs. 18,904\/-
\nin respect  of interest\t on borrowings\tand Rs.\t 19,333\/- in
\nrespect\t of  other  expenses.  According  to  the  Appellate
\nAuthority the  net amount  of interest\ton securities is Rs.
\n37,683\/-  which\t should\t be  excluded  from  the  chargeable
\nprofits. The Department filed the appeal before the Tribunal
\nagainst the aforesaid order to the Authority contending that
\nthe interest  on security  can not  be excluded in computing
\nchargeable profits  for super Profits Tax purposes as Clause
\nX of  Rule I  of the  First Schedule  does not\tapply to the
\ninterest on government\tsecurities. According to Revenue the
\ninterest in  securities to  be excluded\t from the Chargeable
\nprofits has  been dealt\t with under  Clause VI\tof Rule I of
\nFirst  Schedule\t  and,\tthere  fore,  the  decision  of\t the
\nAppellate Authority  is incorrect.  The Tribunal  , however,
\nrejected  the  contention  of  the  revenue  and  held\tthat
\ninterest received  by  non-resident  company  from  whatever
\nsource and  from the  Government or  Local Authority  or any
\nIndian concern\twould be deductable under Clause X of Rule I
\nof First  schedule and,\t therefore, the\t Appellate Authority
\ncame  to   the\tcorrect\t conclusion  law.  It,\ttherefore  ,
\ndismissed the appeal filed by the Revenue and on these facts
\nthe first  question was referred to the High Court which the
\nHigh Court  also answered  in favour  of  the  assessee\t and
\nagainst the Revenue.\n<\/p>\n
     The  assessee  during  the\t relevant  period  had\talso
\nreceived a  sum of  Rs. 12,93,822\/-  by way  of interest  on
\nadvances given\tto Indian  concerns.  The  total  amount  of
\ninterest which\tthe assessee  received from  various sources
\nwas Rs.\t 25,19,560\/- The  assessee before  the super profits
\nTax  officer   had  claimed  the  deduction  of\t entire\t Rs.
\n12,93,822\/- which  it had  received by\tway of\tinterest  on
\nadvances given\t to  Indian concerns.  The super profits Tax
\nofficer in computing the income the income  by way of income
\nfrom Indian concerns arrived at the figure of Rs. 1,16,617\/-
\n. The  super profits  Tax officer  was of  the view that the
\ninterest to  be excluded  from the chargeable profits is the
\nnet amount  of interest\t after\tdeducting the interest which
\nthe assessee  paid to  its depositors and  creditors as well
\nas after  deducting other  proportionate   expanses and thus
\nthe said  super profits Tax officer  determined that the net
\nincome by way of interest to be excluded from the chargeable
\nprofits on  this head  is Rs.  1,61,617\/-. The assessee then
\ncarried the  matter in\tappeal to  the\tAppellate  Assistant
\nCommissioner who  came to  the conclusion  that the interest
\nwhich the  asessee received  from  Indian  concerns  to\t the
\nextent\tof   Rs.  12,93,828\/-  should  be  reduced  by\tthat
\nproportion of  the interest  which the\tassessee himself had
\nreceived from  Indian concerns\tbears to  the total interest
\nreceipt\t of   the  assessee.   According  to  the  Appellate
\nAuthority such\tproportion would  work out at Rs. 5,19,804\/-
\nand the\t proportionate\texpenses  is  Rs.  5,51,207\/-  which
\ntogether would\twork out at Rs. 10,71,011 \/- and this amount
\nshould be  deducted from  the gross interest receipts of Rs.
\n12,93,828\/- and\t therefore ,  the Appellate Authority worked
\nout the net amount of interest received by the assessee from
\nIndian concerns\t at Rs.\t 2,22,817\/- which  amount should  be
\nexcluded from  the chargeable profits. Against the aforesaid
\ndecision the  Revenue felt  aggrieved and carried the matter
\nthe second  appeal. The Tribunal came to the conclusion that
\nthe formula  adopted by the Appellate Assistant Commissioner
\nwas extremely  fair and no exception could b taken to it and
\nultimately did\tnot interfere with the order of the Tribunal
\nand on\tthese  set  of\tfacts  and  conclusions\t the  second
\nquestion was  referred by  the Tribunal\t and on these set of
\nfacts and  conclusions the  second questions was referred by
\nthe Tribunal.\n<\/p>\n
     After  arguing   for  considerable\t  period  Dr.  Gauri
\nShanker, Learned  senior counsel appearing for the appellant
\ndid not\t press the second question and, therefore we are not
\nrequired  to deal with the said question in this appeal. Dr.
\nGauri shanker,\tlearned senior\tcounsel\t appearing  for\t the
\nRevenue, however, so far as the first question is concerned,
\ncontended that under section 4 of the super profits Tax Act,
\na super\t profit Tax is to be charged on every company on the
\namount on  which the chargeable profits of the previous Year
\nexceeds the  standard deduction at the rate specified in the
\nIIIrd schedule. The Chargeable profit has been defined under
\nsection 2(5)  to  mean\tthe  total  income  of\tan  assessee
\ncomputed under\tthe Income  Tax Act.  1961 for\tany Previous
\nyear and  adjusted in  accordance with the provisions of the
\nFirst  Schedule.  First\t Schedule  Provides  the  rules\t for
\ncomputing  the\tchargeable  profits  and  in  making\tsuch
\ncomputation it\tstipulates that while computing the total
\nincome for the year in question under Income Tax Act certain
\namount as indicated in different clauses of Rule I are to be
\nExcluded. Rule I therefore provides :\n<\/p>\n
     “Income, profits\t and  gains  and
\n     other  sums   falling  within   the
\n     following clauses shall be excluded
\n     from such total income”………..<\/p><\/blockquote>\n
     Since Clause  VI indicates\t that the  income chargeable
\nunder the  Income  Tax\tAct  Under  the\t head  “interest  on
\nSecurity” it  is that  clause which  is applicable  and\t not
\nclause X  as has been applied by the Appellate Authority and
\nconfirmed by  the Tribunal  and\t even  the  High  court\t has
\nanswered the question framed in favour of the assessee.\n<\/p>\n
     Mr. Ganesh.  learned counsel appearing for the assessee
\non the\tother  hand contended that the assessee being a non-
\nresident company  and clause  X having\tmade it\t clear\tthat
\nincome by  way of any interest\twhich the company and clause
\nX having  made it  clear that  income by way of any interest
\nwhich the  company receives  from any  Government  or  local
\nauthority or Indian concern, it is Clause X that would apply
\nand ,  therefore, the High court has not committed any error
\nin answering  the question  posed in favour of the assessee.
\nFor better  appreciation   of point  in\t issue\tit  will  be
\nappropriate  to extract Clauses VI and X in extenso;-\n<\/p>\n
     “(VI) income  chargeable under  the
\n     Income  -Tax  Act\tunder  the  head
\n     “interest\ton  securities”\t derived
\n     from any  security of  the\t Central
\n     Government issued or declared to be
\n     income-Tax\t  free\t or   from   any
\n     security  of   a  state  Government
\n     issued income-tax\tfree, the income\n<\/p><\/blockquote>\n
     -tax  whereon  is\tpayable\t by  the
\n     state Government  issued income-tax
\n     free,  the\t income-tax  whereon  is
\n     payable  by the state Government:<\/p><\/blockquote>\n
     (X) in  the case  of a non-resident
\n     company  which  has  not  made  the
\n     prescribed\t arrangements\tfor  the
\n     declaration    and\t   payment    of
\n     dividends within  India, its income
\n     by way  of any interest or fees for
\n     rendering\t  technical\tservices
\n     received from Government or a local
\n     authority or any Indian concern;”<\/p><\/blockquote>\n
     The question that arises for consideration, therefore ,
\nis that\t in computing the chargeable profits of the assessee
\nof a  previous year  from the  total income computed for the
\nyear under  the Income\tTax Act the adjustment would be made
\nin the\tcase of the assessee in accordance with Clause VI or
\nClause X.  According to\t Mr. Ganesh,  the   learned  counsel
\nappearing for  the respondent the expression  “any interest”
\nin clause  X is\t of widest  ambit and  cover every  type  of
\nincome by  way of  interest of a non-resident company and in
\nthat view  of the matter there is no justification to give a
\nrestrictive  meaning   to  the\t aforesaid  expression\t“any
\nInterest” to  mean interest  other than\t those covered under
\nClause VI.  The learned counsel also urged that the court in
\ninterpreting a\tparticular provisions  of a statute need not
\nadd or\tsubtract  words\t into  it  if  the  meaning  of\t the
\nProvision is  clear  and  it  is  only\twhen  there  is\t any
\nambiguity or  absurdity in giving plain meaning of a word of
\nstatute it  will be  Permissible for  a\t  court to add words
\ninto it.  This being  the principle  of\t interpretation\t and
\nthere being   no  ambiguity in\tclause X   it  would not  be
\npermissible for the court to interpret the said Clause X  by
\ninserting  the\t words\t  “other  than\tthe  interest  ”  on
\nsecurities  derived   from  any\t  security  of\tthe  central
\nGovernment or  state Government\t after the  expression\t“any
\ninterest” in  Clause X.\t According to  Mr.  Ganesh,  learned
\ncounsel Clause\tX being\t a specific  clause dealing with the
\ncase of\t a non-resident company the said Clause should apply
\nand not the general clause in clause VI. Dr. Gauri Shanker ,
\nLearned senior\tcounsel appearing  for the  Revenue  on\t the
\nother hand  contended, that the rule Of schedule II of super
\nProfits\t Tax  Act  provides  the  method  of  computing\t the
\nchargeable profits  of an  assessee of\ta previous  year  an
\nwhile the  total income\t for the  previous  year  under\t the
\nIncome Tax  Act is  taken into\taccount for  determining the
\nchargeable profits  certain sums  falling  within  different
\nclauses of  Rule I  are\t to  be\t excluded.  When  Clause  VI
\nspecifically provides  that the\t income chargeable under the
\nhead “Interest on security” derived from any security of the
\nCentral Government  or state Government then even in case of
\na Non-resident\tCompany the  Computation has  to be  made in
\naccordance with\t the said  Clause ,  so far  as the interest
\nreceived on Government securities are concerned and Clause X
\nwould apply  only in  respect of  other\t income\t by  way  of
\ninterest for  the non  resident company\t not covered   under
\nClause VI  . According\tto Dr.\tGauri Shanker,\tthe  learned
\nsenior counsel\tappearing for the appellant, the emphasis is
\non the\thead from which the income is derived and not on the
\nstatus of the assessee.\n<\/p>\n
     Having  considered\t  the  rival   submissions  we\tfind
\nconsiderable force  in the  argument advanced by the learned
\ncounsel appearing  for the  Revenue. Under Chapter IV of the
\nIncome Tax  Act the  total income of an assessee is computed
\nand under  section 14  there are only five heads of income ,
\nnamely:-\n<\/p>\n
     A.\t  Salaries
\n     B.\t  Interest on securities;
\n     C.\t  Income from house property;
\n     D.\t  Profits and  gains of Business
\n     or Profession;<\/p><\/blockquote>\n
     E.\t  Capital gains ;and
\n     F.\t  Income from other sources
\n     Head B has been omitted by Finance Act 1988 with effect
\nfrom 1.4.89  but was  there during the relevant\t period with
\nwhich we  are concerned in the present case . Section 18, as
\nit stood  , deals  with\t “interest  on\tsecurities”  and  it
\nprovided that  the amounts  due to  assessee in the previous
\nyear shall  be\tchargeable  to\tincome-tax  under  the\thead
\n“interest on securities” are :\n<\/p>\n
     (i) interest  on a\t security  of  a
\n     Central or State Government;\n<\/p><\/blockquote>\n
     (ii)  interest   on  debentures  or
\n     other securities  for money  issued
\n     by\t or   on  behalf  of  the  local
\n     authority or company or corporation
\n     established by  the Central,  State
\n     or Provincial Act.<\/p><\/blockquote>\n
     When Clause VI of Rule I of the First Schedule of super
\nProfits Tax  Act Stipulates that the Income Chargeable Under
\nthe Income  Tax Act  under the Head “Interest on securities”
\nderived from  any Security  of the  central Government\tor a
\nState Government  , it\tis therefore , Necessarily referable
\nto section  14(b) so far as the head of income is concerned,
\nand section  18 so  far as the type of securities , interest
\nfrom which  has to  be computed in arriving at the income of
\nthe assessee.  It does\tnot make  any distinction  between a
\nnon-resident company  or any other individual assessee. That
\nbeing the  position in\tallowing adjustment in computing the
\nchargeable profits  of a  previous year\t of an assessee from
\nthe total  income computed for the year under the Income Tax
\nAct what  would be  deducted so\t far as interest on security
\nderived from  the Central  Government or state Government is
\nconcerned in  accordance with  Clause VI  of Rule I of First
\nSchedule has  no application  . Clause\tX  Provides  for  an
\nadditional deduction  to be  made in  case of a non-resident
\ncompany if the said company has derived any income by way of
\ninterest  which\t  it  received\t from  government  or  local
\nauthority or  any Indian  concern which\t is not\t covered  by
\nClause VI.  In the  case of  United Commercial Bank Ltd. Vs.
\nCommissioner  of  Income-Tax,  West  Bengal  32\t Income\t Tax
\nReports 1957 page 688, the question for consideration before
\nthis court  was whether\t income from  interest\ton  security
\nWould fall under section 8 or under section 10 of the Income
\nTax Act,  1922? This  court construed  sections\t 8,  10\t and
\n24(2)of
\n     versa, and therefore no question of
\n     the applicability\tof the principle
\n     generalia speciialibus non derogant
\n     arises. This finds support from the
\n     decided  cases   which  have   been
\n     discussed\tabove.\t Thus  both  the
\n     precedent\t and\ton   a\t  proper
\n     construction , the source of income
\n     “Interest on Securities” would fall
\n     under  section   8\t and  not  under
\n     section 10\t as it\tis  specifically
\n     made chargeable  under the distinct
\n     head   “interest\ton   securities”<\/p>\n
     falling under  section 8 of the Act
\n     and cannot\t   be  brought\tunder  a
\n     different\thead   even  though  the
\n     securities are  held as  a\t trading
\n     asset in the Course of its business
\n     by a banker.”\n<\/p>\n
     Though this  case is  not a  direct  authority  on\t the
\nquestion of  interpretation of\tRule I of the First schedule
\nto the\tsuper profits  Tax Act,\t 1963 ,\t but the  principles
\nthere would apply with full force and, therefore, the income
\nunder the  head “interest on security” derived from security
\nof the\tCentral or  State Government having fallen under the
\nhead under  section 14(B)  of the Income Tax Act as it stood
\nthen , as well as under section 18(B) of the said Income Tax
\nAct as\tit stood  at the  relevant point  of time,  when the
\nquestion of  Computation of Chargeable profits of a previous
\nyear under  the super  profits Tax  Act crops  up, then\t the
\nadjustment as provided under clause VI of Rule I of the said
\nFirst Schedule has to be made from the total income Computed
\nfor the\t said year  under the Income Tax Act for the purpose
\nof levy\t of super tax. The Appellate Assistant Commissioner,
\nthe Tribunal  and the  High Court  have committed  error  in
\nholding that Clause X of Rule I of the First Schedule to the
\nsuper profits  Tax Act\twould apply.  The  income  which  is
\nderived by  the assessee  as interest  from  the  government
\nsecurities being  an income  liable for\t tax under  the head
\n“income from the interest on securities” under section 14 of
\nthe Indian  Income Tax\tAct, the  Character and incidence of
\nthat income  is not altered merely because it is earned By a
\nNon-resident company.\n<\/p>\n
     In the  aforesaid premises\t we are\t of  the  considered
\nopinion that  in the matter of computation of the chargeable
\nprofits of  the assessee  for the  purpose of  levy of super
\nprofits tax  under provisions  of the super profits Tax Act,
\n1963 from  the total income of the assessee computed for the
\nyear in\t question under\t the Income  Tax  Act  he  would  be
\nentitled  to  the  adjustment  of  the\tamount\treceived  as
\ninterest on  securities derived\t from any  security  of\t the
\nCentral Government  or the State Government as per Clause VI
\nof Rule I of the First schedule inasmuch  the said amount is
\nchargeable under the Income Tax Act under the head “interest
\non securities” which was in force at the relevant period and
\nnot under  Clause X  of Rule  I of the First Schedule of the
\nsuper profits  Tax Act\tas  held  by  the  High\t Court.\t The
\nimpugned Judgment of the High Court is accordingly set aside
\nand the\t first question posed by the Tribunal is answered in
\nfavour of  the Revenue\tand against the assessee. The appeal
\nis accordingly allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Income Tax, … vs M\/S. Banque Nationale De-Paris on 21 March, 1997 Author: Pattanaik Bench: S.C. Agrawal, G.B. Pattanaik PETITIONER: COMMISSIONER OF INCOME TAX, BOMBAY Vs. RESPONDENT: M\/S. BANQUE NATIONALE DE-PARIS DATE OF JUDGMENT: 21\/03\/1997 BENCH: S.C. AGRAWAL, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT: J U D G M E […]<\/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-64269","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Income Tax, ... vs M\/S. 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