.. , t 13 5 MADURAI DISTT. CENTRAL COOPERATIVE BANK LTD. c v. THE THIRD INCOME-TAX OFFICER, MADURAI July 28, 1975 [Y. V. CilANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.] Constitution of India-Article 246(1)-7th Schedule List I Entry 82- lncome-tax Act 1961-Sec. 2(8), 4 & Sl(i)(a)-Finance Act 1963-Sec. 2(1) (a), 2(8), 3, Part I, First Schedule-Whether tax can exceed taxable inconie- Finan<'e Act-Nature and scope of-Whether can impose fresh charge-Harshness r.:j a taxing statute if a ground for _chalfenge-Busint.?ss inco1ne of a cooperative society doing banking-Whether additional surcharge a tax-Whether additional surcharge call be levied 011 inco1ne exenzpted from payment of tax. The appellant is a Cooperative Society engaged in the business of banking. According to section 81(i) (a) of the Jncome Tax Act, 1961, a Cooperative Society engaged in the business of banking is not liable to pay income tax on its business income.
The Finance Act, 1963, however, by section 2(i) (a), 2(8), 3, paragraph A(ii) of Part I of the First Schedule and clause C of that port:on of Part I called surcharge on Income Tax provides for levy of additional surcharge tor the purposes of the Union calculated on the amount of the residual income at the rates mentioned therein. The tp'.al income of the appellant for the assessment year 1963-64 was Rs. 10,00,098. Out of this Rs. 9,48,335 was its business income. The tax amounting to Rs. 23.845 wa_s charged on Rs. 51,763. Applying the Finance Act of 1963, the residual incOme of the appellant was computed a-: Rs. 5,39,386 and a surcharge thereon was levied of Rs. 52,828. Thus, the total '~ax imposed on the c:tppellant came to Rs. 76,674. The assessn1ent order passed by the Income Tax Officer levying the tax as aforesaid \l.'as :hallenged by the appellant in the High Court by a Writ Petition. The main grievance of tl]_e appellant before the High Court ·was that whereas its taxable income was only Rs. 51,763, a tax of Rs. 76,674 was imposed on it. The relevant provisions of the Finance Act were challenged as invalid on the ground that(i) they imposed additional surcharge on income which was -exempt fron1 tax undt-r \he provisions of the Income Tax Act and that (ii) the additional surcharge \vas intended as additional levy on the income tax and had no indepen- dent existence apart from· it. The High Court rejected these contentions. On a·n nppeal by certificate, dismissing the appeal,
HELD'. 1. It is indisputable that the_ appellant is not required to pay income tax on ~he banking income. In view of section 81. It is also not liable to pay surcharge on its business in-come in view of section 99(l)(v). [139Cj 2. Thei grievance of the appellant that the tax levied upon it exceeds its taxable income can afford no true guide to the construction of the relevant provisions of the Income Tax Act or the Finance Act.
Harshness of a· taxing statute, apart from a possible challenge to it under Art. 13 of the Constitution cannot be an invalidating circumstance. But, the grievanoo on this score is
n!iu:on:eiv·~d. It assumes what has to be examined that no part of the income rxcmpted from Income Tax and Suoer Tax under the Income Tax Act can be brought to tax by a Finance Act. [140G-H]
3. The concession of the counsel for the appellant giving up challenge to the power cf the Parliament to impose a new charge by Finance Act was properly made. Under Art. 246(1) of the Constitution, Parliament has the
cx;:lusive pov.'er to make Jaws with respect '~o any of the matters in List I of the Se;venth Schedule. Entry 82 in List I relates to tax on income other than agricultural income. The Income Tax Act, 1961 and the annual Finance Acts are enacted by the Parliament in exercise· of the powers conferred by Art. 246( 1) read with entry 82 of List I. Once the Parliament has the legislative com- petence to enact a law with respect to certain subject n1atter, the limits of [1976J 1 S.C.R.
that con1petence cannot be judged further by the form or manner in which that power is exercised. Exigencies of the Financial year determine the scope and nature of the provisions of the Finance Act.
The primary purpose of the Finance Aci is to describe the rates at whi:::h the Income Tax will be charged under the Income Tax Act but that does not mean that new and distinct tax cannot be ch~rged under Finance Act. Therefore, what is not inconte under the Income Tax Act can b-:! made in:::ome by the Finance Act. An exen1ption
granted by the Income Tax A,:::t can be withdrawn by the Finance Act or the efficacy of that exemption )11ay be reduced by the imposition of a new charge. [141D-E; G-H] 4. 1'he contention of the appellant that surcharges a:re nothing but in~ome tax and, therefore. expression income tax occurring in Sec. 4 and 81 of the Act inciudes surcharges and as su.ch exempted cannot be accepted. The case of the C.l.T. Kera/a vs. K. Srlnivasan distinguished. There the essential point for Cetermina-tion was whether sur:harge is additional mode or rate for charging income tax.
The Court held there that it was so. The question before us i!i whether even if the surcharge is an additional mode or rate for charging income tax, the Finance Act of 1963 authorises by its terms the levy of additional surcharge on income wh:ch is exempt from income tax under the Income ·rax, Act, 1961. The residual income as defined by the 1963 Finance Act is not the han1e as the business income of a Cooperative Bank which is exempted under sec. 81. The additional surcharge is a distinct charge not dependent for its leviability on the assessee's liability to pay income ~V or Super Tax. The
decision of Allahabad High Court in AlldHabad District Co-operatire Bnnk Ltd. vs. Union of India over~wled. I143D-E] 5. The additional surcharge though levied by the Finance A:t 1963 i.ndepen .. dently of th~ Income Tax Act is but a mode of levying tax on a portion of the assessee's income computed in accordance! with the definition in section 2(8) of the Finance Act 1963.
[147FJ ARGUMENTS For the Appellant 1. Under section 81 read with section 4 of the Income-tax Act, 1961, income- tax is not payable by the appellant. a Co-operative Society, in respect of its incorrlt: from banking business.
Si1nilar1y super-tax is not payable under section 99(l)(v) read with section 4. 2. The primary purpose of the annual Finance Acts as envisaged by section 4 of the Income-tax Act is to prescribe the rates of income-tax on the total incon1e of an assessee, and this function as contemplated by section 4 is to be "subject to the other provisions of this Act'', namely, the Income-tax Act, 1961, which \vuuld include, inter alia, section 81.
3, The history of Indian income-tax shows that surcharges by way of increase to the an1ount of income~tax, which are added to the basic amou.nt, in vie\v cf article 271 of the Constitution of India, are nothing other than income-tax and a part of income-tax alone. Therefore the expression 'income-tax' in section 4 and 81 of the Income-tax Act, 1961, and sei:;.tion and Schedule I, Part 1 of the Finanee Act, 1963, includes surcharges.
4. Section 2 of the Finance Act, 1963, and Schedule I, Part I: Paragraph A all clearly contemplate that the surcharge. special surcharge and additional sur- charge are all only by way of increase of the amount of income-tax and not only partake of the character of income-tax but are actually a part of income- tax. They are merely rates of income-tax. The main part of section 2(1)(a) ~ays that ''inconle-tax shall be charged at the rates specified in Part I of the First Schedule" and clause (ii) of that section provides in the case referred to therein that income-tax "shall further be increased by an additional surcharge for the purpose of the Union calculated in -the manner provided in the First Schedule. Similarly in Paragraph .A of Part I of the First Schedule the heading to the provisions prescribing rates of surcharge is '~surcharges on income-tax" in the p]ural.
The main part in the heading also provides that "the amount of c c MADURAI COOPERATIVE BANK V. I.T.O. income-tax … shall be increased by the aggregate of the surcharges c..alculated as under~' Clause (c) thereafter provides for the additional surcharge for the purpose of the Union.
Par~graph A also therefore dearly indicates that the three surcharges are only of the same nature and that all the three surcharges are onlv by way of increase of the amount of income-tax; in other words part of the income.tax.
N~ither sect~on 2 nor paragraph A o{ Pa;-t I of the First Schedule can even re[llotely be said to contemplate any separate levy of addi- tional surcharge other than income-tax. 5. From "the assessment order it is seen that the following have been charged only on the real taxable income of the appellant namely Rs. 51,763: (i) income- t:ax (ii) surcharge on in:::ome-tax (iii) special surcharge on income-tax (iv) super-tax and (v) surcharge on super-tax. These items have not been charged on the to~al income of Rs. 10,00,098, because income-tax is not payable en the balance of the total income under section 81.
The Income-tax Officer has sought to impose only additional surcharge under clause (c) in respect to the total income of Rs. 10,00,098. In view of section 81 no additional surcharge is payable on the total income of Rs. 10,00,098.
It is payable only on the taxable inoome of Rs. 51.763. 6. Section 2 read with Paragraph A Part I of Schedule I to the Finance Act merely purports to lay down the method of computa' ion where income-ta.'< is payable. It does not either dire:::tly or by implication make any amendment or 1nodification in section 81.
7. Section 3 of the Finance Act 1963 also applies to a stage of computation only and ift regard to relief, rebate etc. It does not impose any liability or any tax. It operates only where additional surcharge is payable and not Other- wise, and where relief, rebate etc. is to be given from the tax payable by the assessee, e.g. deduction of tax based dn life insurance premia provident fund contribution. d0nations to charitable institution etc. Section 81 does not provide for any such relief or rebate.
8. Section 2(8) of the Finance Act, 1963~ defining "residual income" which requires deduction from the total income of income-tax, surcharge and special surcharge to as~ertain residual income also does not have the effect of imposing any liability or any tax but merely provides for computation. In a taxing Act one has to look merely at what is clearly said. There is no room for . any intendment. There is no equity about a tax.
There is no presumption as to tax. Nothing is to be read in, nothing is to be implied." ''In a case of reasonable doubt, the conS'Tuction most beneficial to the subject is to be adopted." The court will be very slow in reading an implied an1endment in a tax law because there is no intendment.
9. Income-tax is one tax, not several taxes on several he:ads or several items of income: For the Respondent 1. Jt is open to the Parilament to pass an Act relating to more than one topic or field of operation covered by the Entries in List I. It is not as if there must be as many Ena·:tments as the topics which the enactment covers. '· 2. The legislature has a wide range of selection and freedom in appraisal no'~ only in the subjects of taxation and the manner of taxation but also in the determination of the rate or rates applicable. If producfon were always to be taken into account there will have to be a settJement for every ye8.r and the tax win become a kind of i~come-tax.
T~e burden o.f proving discrimination is always heavy and heavier still when a. ta~1n~ st.atute is under atta7k. T~e burden is on the person complaining of d1scnm1nation. The bu.rden 1s proving not possible 'inequalitv'
but hostile 'unequal' treatment. This is more so when uniform taxes are levied. The State cannot be asked to demonstrate equality. 3. Income which is exempt from taxation is income which is assessable to tax and therefore liable to tax but tax is not imposed on account of the cxemp~ J 38
tion. This exemption can by subsequent legislation be \\l'holly or partially v.rhh- Oraw~ both as regards items of income and levies imposed for the purpose of taxation. Thus where the Income-tax Act 1961 says that business in:on1e of a cooperative society will be exempt from income-tax it would be open 'o the Parliament by enactment of the Finance Act of 1963 to say that this exemption s~all ~ partially withdrawn as regards ~esidual income and this partial exemp- tion will operate only for the purpose of income-tax but not surcharge on reside.al income.
The net result of the partial withdrawl of the exemption would 1nean that thoug~ the ~usiness in~om~ of a co-operative society will be exempt from 1ax the residual income which 1s only a part of the exemp!ed business income could be subjected to surcharge on incon1e-tax only.
4. Income-tax and surcharge on income-tax are twO different levies !hough the computation of ·he lat~er is based upon a percen~age of the form~r. The t\vo (}re in:lusive for the purpose of imposing tax but they are not one levy only. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1795 of 1970. From the Judgment and order dated the 15th October, 1968 of the Madras High Court in Writ Petition No. 2252 of 1965.
S. T. Desai and T. A. Ramachandran, for the appellant. N. D. Karkhanis and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J .-The appellant filed a writ petition in the High Court of Madras under Article 226 of the. Constitution to challenge an as.essment order dated August 22, 1963 made by the
respondent, levying additional surcharge on its residual income. The High Court dismissed the writ petition by its judgment dated October 15, 1968 but c it has granted to the appellant a certificate to file an appeal to this Court uadcr Articles 133 (•a) and ( c) of the Constitution.
The appellant is a co-opemtive society engaged in the business of· banking. Its total income for the assessment year 1963-64 was com- puted by the respondent at Rs. 10,00,098. Out of this, Rs. 9,48,335 was its business income while Rs. 51,763 was its income from other sources.
Since, under section 81(i) (a) of the Income-tax Act, 196[ a co-operative society engaged in the business of banking is not liable to pay income-i:'ax on its business income, the tax amounting to Rs. 23,845.47 was charged on Rs. 51,763 only though for the pur- poses of rate the income was taken at Rs. 9,48,335 in view of sectio>,1 110 of the Act.
Applying the Finance Act, XIII of 1963, the res- pondent computed the residual income of the appellant at Rs. 5,39,386 and levied on it an additional surcharge of Rs. 52,828.60. Thus !he
total tax levied on the appellant came to Rs. 23,845..\7 plus Rs. 52,828.60 i.e., Rs. 76,674.07. The main grievance of the appclla'at before the High Court was that whereas its taxable income was only Rs.
51,763, a tax of Rs. 76,674.07 was imposed on it. The relevant provisions of the Finance Act were accordingly said to be invalid as they could not subject to additional surcharge an income which was exempt from tax under the provisions of the [ncome-tax Act.
The additioaa\ surcharge, it was contended, was intended as an additional levy on the income- c MADURAI COOPERATIVE BANK v. J.T.o. (Chandrachud, !.) 139· tax and had no independent existence apart from it.
These contea-· tions were rejected by the High Court and hence this appeal. Section 81 of the Income-tax Act, 1961 was deleied by the Finance Act, XX of 1967, with effect from April !, 1968 but its pro- visions were incorporated by the same Finance Act la section SOP .. Section
Sl(i)~a) read thus: "81. Income of co-operative societies.-Jncome-tax shall not be payable by a co-operative society- ( i) in respect 'of the profits and gains of business carried on by it, if it is-
( a) a society en~aged in carrying on the business of ba:ak- ing or providing credit facilities to its members;" It is indisputable that by reason of this provision, the franking income of the appellant amounting to Rs. 9,48,335 is exempt from income-· tax.
It is equally clear that by reason of sectiola 99(l)(v) of the Act of l96 l , the appellant is not liable to pay supertax on its business income. That section provides that where the assessee is a co-opera- tive society, super-tax shall not be payable by it on any income in res- pect whereof no income-tax is payable by it by virtue of the provisions of section 81.
The dispute really centres round the provisio>as of Finance Act,· XIII of 1963. ·The provisions of that Act which are relevant for onr purpose are seclions 2(1)(a), 2(8), 3, Paragraph A(ii) of Part L of the First Schedule, and clause (c) of thaf portion of Part 1, called "Surcharges on Income Tax."
Section 2(1 )(a) of the Finance Act, 1963 provides that ; "2. Income-tax and super-tax-(!) Subject to the provi- sions of sub-section (2), (3), ( 4) and (S), for the assessme'nt year commencing on the !st d11y of April, 1963,-
(a) income-tax shall be charged at the rates specified in Part I of the First Schedule and,- (i) in the cases to which paragraphs A, C, C and E of that Part awly, shall be increased by a sur-
charge for purposes of the Union and, except in the cases to which the said paragraph E applies, a special surcharge, calculated in either case in the maaner provided therein; and
(ii) in the cases to which paragraphs A and C of the aforesaid Part apply, shall further be increased by an additional surcharge for purposes of the Union (hereinafter referred to as additional sur-
clmrge) calculated in the manner provided in the said Schedule;" Section 2(8) provides that: "For the purposes of paragraphs A and C of Part I of the First Schedule, the expression "residual income" means ihe amount of the total income as reduced by-
a4o (a) the amount of the capital gains, if any, included there- in; and (b) the amount of tax (exclusive of additonal surcharge) which would have been chargeable on such reduced total ~!!come if it had been the total income 110 part
of which. had been exempt from tax and on no portion of which deduction of tax had been admissible under any provisions of the Income-l'ax Act or this Act." -Section 3 provides that :
"Notwithstanding anything contained in the provisions of Chapter VII or Chapter VIII-A or section 110 ofl the Income- tax Act or sub-section (5) of section 2 of this Act in calculat- ing any relief rebate or deduction in respect of income-tax payable on the total income of an assessee which includes any income on which no income-tax is payable or in respect of
which a deduction of income-tax is admissible under any of the aforesaid prov.isions, no account shall be taken of the additional surcharge." The First Schedule of the Finance Act, 1963 consists of three parts .out of which we are only concerned with Part I. Part I which is called "Income-tax and surcharges on income-tax" consists of Paragraphs .A, B, C, D and E out of which we are concerned with Paragraph A only.
Clause (ii) of Paragraph A prescribes rate of income-tax for ·incomes accrThing, inter: alia, to "association of persons~'. Since a cOJ- ·Operative society is an association of persons, Paragraph A of Part I would apply to the case of the appellant !br lhe purposes of section 2(l)(a)(ii) of the Finance Act ofl 1963, though not for the purpose of bringing its exempted business income to income-tax.
That portion of Part I, Paragraph A, called "Surcharges on Income ·Tax" provides: "The amount of income-tax computed at the rates here- . Jnbefore specified shall be increased by the aggregate of the surcharges calculated as under". Clause (a) provides for a surcharge for the pur- poses of the Union at the rates mentioned in sub-clauses (i), (ii) and (iii). Clause (b) provides for the levy of a special surcharge. Clause ·-(c) with which we are concerned provides for the levy ofl "an additional surcharge for the purposes of the Union calculated on the amount of ·the residual income" at the rates mentioned therein.
The grievance of the appellant, which appears to have been pressed before the High Court with ,some earnestness, that the tax levied upon it exceeds its taxable income can afford no true guide to the construction ·of the relevant proviSlions of the Incom<1 tax Act or the Finance Act. Harshness of a taxing statute, apart fhcom a possible challenge to it under Article 13 of the Constjtut,ion, cannot be an invalidating circumstance. But the grievance on this score is basically misconceived. It assumes, what has to be examined, that no part of the income exempted from 'income-tax and 'Siuper-tax under the Income-tax Act can be brought to •tax by a Finance Act. The total income of the appellant was computed c
i 'I c MADURAI COOPERATIVE BANK v. I.T.O. (Chandrachud, !.) at Rs. 10,00,098. By r·eason of sections 81 (i)(a) and 99( 1) (v) of the: Income-tax Act, 1961 the appellant enjoys an exemption from income- tax and super-tax in respect of its business income which amounts to· Rs. 9,48,335. The balance, viz. Rs. 51,763 which was the appellant's income from other sources was alone taxable under the Act of 196t and a tax ofl Rs. 23 ,845 .4 7 was imp0sed on that. income: The Finance Act of 1963 subjects 'residual income' to certain charges and such in- come was computed, admittedly correctly, at Rs. 5,39,386. An addi- tional surcharge of Rs. 52,828.60 was levied on die residual income. Thus on the assumption· that the Finance Act, validly and on a true interpretation, imposes the additional -surcharge :on residual income,- the tax imposed on the appellant is Rs. 23,845.47 plus Rs. 52,828.60 .. The total tax of Rs. 76,674.07 thus imposed is far less than the appel- lant's total taxable 'income. arrived at by the addition of its non-business. income and the reo.idual income. That leads to the inquiry first as. regards the scope of a Finance Act and then qs· regards the interpreta- tion of the Finance Act of 1963.
Learned counsel for the appellant, during the course of his argu- ments, gave up J:he challenge to the pawer ofi the Parliament to impose a new charge by a Finance Act. This concession was properly inaile .. By Article 246(1) of the Constitution, Parliament has the excluslvt. power to make laws with respect to any of the matters in List I of the° Seventh Schedule. En:try 82 in List I relates to "taxes on income other than agricultural income".
The Income,tax Act, 1961 and the annuar. Finance Acts are enacted by the Parliament in exercise of the power cosferred by Article 246(1) read with Entry 82 of List J. Once the Parliament has the legislative competence to· enact a law. with respect to ·a certain subject-matter, the limits of that competence cannot be· judged further by the form or manner in which that power is exercised. Accordingly, though it would be unconventional for the Parliament te· amend a taxing statute by incorporating the amendiµg provision in an Act o~ a different pith and substance, 9uch a course would not be un-· oonstitutlonal.
Much more so can the Parliament introduce a charging provision· in a Finance Act. True, as said in Kesoram Itidustries and Cotton Mills. Ltd. v. Commissioner of Wealth Tax, (Central) Ca/cufta(1), that the Income-tax Act is a permanent Act while :the Finance Acts are passed every year and their primary purpose is to prescribe the rates at which the income-tax wdi be charged under the Income tax Act. But ·that does nClt mean that a new and distinct charge cannot be introduced under the Finance Act. . Exigencies of the Financial year determine the· scope and nature of its provisions. If the Parliament has the legislative competence to fotroduce a new charge of tax; it may exercise that power either by incorporating that charge in the Income-tax Act or by intro- ducing it in the Financ~ Act or for'the matter of that in any other Statute. The alternative in this regard is.generally determined by the considera- tion whether the new charge is intended to be more or less of a perma- nent nature or whether its introduction is dictated by the .financial exi- gencies of the particular year. Therefore, what is not 'income' under (1) (1966) 2 S. C.R. 688, 704.
14 2 the Income-tax Act can be made 'iocome' by a Finance Act, an exemp- 1ion granted by the Income-tax Act can be withdrawn by the Finance Act or the efficacy of that cxemptio11 may be reduced by the imposition of a new charge. Subject to constitutional limitations, addit,ional tax- re¥enue may be collected either by. enhancing the rate or by the levy ·of a fresh charge. The Parliament, through the medium of a Finance Act, may as much do the one as the other.
In McGregor and IJalfour Ltd., Calcutta v. C.I.T., West Benga/( 1), which was affirmed by this <Court in 36 I.T.R. 65, Chakravartti CJ. delivering the judgment of a Divi~ion Bench observr,d that the Finance Acts though annual Acts are not necessarily temporary Act9 fOT they may and often do contain provisions of a general character which arc of a permanent operation. In Hari Krishna Bhargav v. Union of India and Anr.('). an assessee challenged the schem.e of Annuity Deposits on the ground that the Parliament has no competence to incorporate in the Income,tax Act a provJsion which was substantially one relating to borrowings by the Central Government from a class of tax-payers. That scheme was in- troduced by Finance Act 5 of 1964 which incorporated Chapter XXU-A containing section 280-A to section 280-X in the lncomQ tax Act, 1961. The challenge was repelled by this Court on the ground that if the Parliament had the legislative competence to pass an Act for collecting Annuity Deposits from tax-payers, nothing contained in the Constitution disentitled it "as a matter of legislative arrangement to incorporate the provisions· relating to· borrowing from tax-payers in the Income-tax Act or anY other statute".
c This discussion became necessary in spite of the appellant's con- cession on the Parliament's legislative competence because for a proper understanding of the provisions of the Finance Act 1963, it is essential to appreciate that a Finance Act may not only prescribe rates but also int'roduce a new charge.
We w.iU now proceed to consider the proyisions of the Financ.! Act, 1963. under which the respandent ha~ levied additional surcharge on the appell;mt's residual income. The question for consideration is
whether clause (c) of the portion "Surcharges on Income Tax" occur- ring in Paragraph A of Part I introduces a new charge in the shape of additional surcharge so that the said charge can be levied even on a part of the appellant's income which is exempt from income-tax and .,;uper-tax under sections 81(i){a) and 99(1)(v) of the Act of 1961. The history of Indian income-tax, according to appellant's counsel, shows that surcharges by way of increase in the amount of income-tax are nothing but income-tax and therefore the expression "income-tax" -occurring in sections 4 and 81 of the Act of 1961 and in section 2 and . the First Schedule of the F.inance Act, 1963 includes surcharges. To put _it differently, the argument is that the exemption granted by section 8l(1)(a) extend, to surcharges also as a result whereof a co-operative society engaged in the business of banking is neither liable to pay in- come-tax nor any of the surcharges on its business income. (I) 27 t T. R. 389.
(2) [1966] 2 S. C.R. 22. -I ' t MADURAI COOPERATIVE BANK v. I.T.O. (Chandrachud, !.) 14 3 In C.l.T., Kerala v. K. Srinivasan(11) on which the appellant relies, this Court has traced the history ofl the concept of 'surcharge' in the tax laws of our country. After considering the report of the Committee on Indian Constitutional Reforms, the provisions of the Government of India Act, 1935, the provisions of Articles 269, 270 and 271 of the Constitution and the. various Finance Acts, this Court held, differing from the High Court, that the word "income-tax" in section 2(2) of the Finance Act, 1964 includes surcharges and the additional surcharge. This case does not touch the point before us. In that case, the assessee's income for the accountin~ year ending March 30, 1964 con- sill!ed· mainly of his salary. Sectioa 2(2)(a) of the Finance Act, 1964 did not by itself refer to any surcharge but it provided that in making the assessment for the assessment year commencing on April 1, 1964 the "income-tax" payable by the assessee on his salary-income shall be an amount bearing to the total amount of "income-tax" payable acccird- ing to the rates applicable under the operation of the Finance Act, 1963 0Jt.lbis;totalinco1DC, the same proportion as the salary income bears to the total income. Tlie question which arose for consideration was under the total income.
The question which arose for consideration was whether the words "income-tax payable according to the rates appllca- bltl under the operation of the Finance Act, 1963" included surcharges vllfJch were leviable under the Act of 1963. The question was an5wer- ed'by. this Court in the affirmative' As the judgment shows, "the essen- tial'·pninr fbt determination" Was "whether surcharge is an additional nQ!e: or rate fbr cliarging income tax" (p. 351). The Court held that it-1$111. 'l1ie qliestiorr before·us is whether, even if the·surcharge is but all"• additional'. mode ot rate for charging incO!lie'tax-, the Finance Act o~ 1.963: aUthot.ises by its terms the levy of. add1tionat surcharge on in- ctmt:~lfiehtis~rnpt'ftom income-tax under the Ihcome-tax Act, 1961 flt.'ff. SrittiVll.ran's case the Court declined to express atly opinion on the distinction made by the High Court that surcharges are leviedcunder the Finance Act while income0tax was levied under the Income-tax Act (p. 3~!). ·Jn the instant ca>e lt ;is not disputed by the revenue that a s\Jrcharge partake& of the essential characteristics of income-tax and is an increase in income-tax.
What we have to determine is whether tlie. Act of 1963 provides for the levy of additional surcharge. 6railtihgc that the W_£>rd "inccme-tax" includes surcharges, it may be argµable thatthe exempt;ion-from the payment of income-tax under section 81(i) (a) of the 1961 Act would extend to S1Jrcharges. But the matterdoes not rest with what section 81(i)(a) says. Even if that section were· to grant an express exemption from surcharges on business;income, the Parliament could take away that exemption or curtail the ·benefit available under it by making an appropriate provision in the Finance Act. If while legislating on a matter within its competence the Parlia- ment can grant an exemption, it is surely competent to it to withdraw that exemption ;;n exercise oft the self-same power.
The Finance Act, 1963, like its annual counterparts, contains pro- visions not only prescribing rates of taxation but making extensive and important modifications in the Income-tax Act itself.
By sections 4 to (I) 83 I. T. R. 346. 20 of the Act of 1963, var,ious provis_ions of the Income-tax Act have been amended. By these amendments, some of which are given retros- pective effect, old provisions are deleted, new ones are added and in- deed new concepts of taxation altogether are introduced. Such inno- vations .fall within the legitimate scope of Finance Acts. Section 11(14) of the Indian Finance Act, 1946 made in the amount of excess prolits tax repaid under &ection 28 of the U.K. Finance Act, 1941, ·'income"- for the purpose of the l!1dian Income-tax Act and further provided that that "income shall be treated for purposes of assessment to income- tax and super-tax as the income of the previous year. lt was held by. this Court iu McGref!:or aiid Balfour Lid. v. C.I.T. West Benga~(' l. that section 11(14) charged the amount with a liability to tax by jts own. forc,e. ·It was further held that the particular provision, framed as it was;' applied to subsequent assessment years just as it applied to the_' assessment year 1946-4 7.
· ffaving seen the nature and scope of Finance Acts, the . specific question· 'which we have to consider is whether, as contended by the ap- pellant, section 2 read with Paragraph A, Part I of the First Schedule of tJ\e Finance Act, 1963 merely lays down a meithod of computation in cases where income-tax is in fact payable or whether, as contended· by the revenue, the Finance Act provides ~r the. levy of a new anc! independent charge. According to the appellant, these provisions of the finance Act do not, directly or indirectlY, bring about any amend- m.entto section 81 (i) (a) of the Income-tax Act but merely prescribe rtiaUrl cases where the income-tax is payable, "The amount of income· tax.::. shall be increased by the aggregate of the surcharges". ~e
heading _"Surcharges on Income Tax" under which provision is madt> in the Finance Act for the calculation of a surcharge, a special surcharge and a·n additional surcharge is also said to bear out the contention that· the levy of additional surcharge on the residual income cannot be dis· sodatedfrom the main charge of income-tax.
i .We are unable· to accept this contention Article 269(1) of the Cons; titu,tipµ provides that the duties and taxes mentioned therein shall he levied and collected by the Government of India but shall be assigned to the States in the manner provided in clause (2). Article 270(1) pro- vides tliat Taxes on income other than agricultural income shall be le- vied ·and rollected by the Government of India and distriibuted between the Unibn and the States in the manner provided in clauSe (2). BY.
Article 271, notwithstanding anything in Articles 269 and 270, ParJiac ment may increase any of the duties or taxes referred to in those Articles by a srircharge for purposes of the Union.
Surcharges leviable under section 2 (1) of the Finance Act, 1963 are relatable to Article 271 of the Constitution. Section 2(1)(a)(ii) of that Act provides, in so far as relevant, that for the assessment year commencing on April 1, 1963 income-tax shall be charged at the rate~ specified in Part I of First Schedule and in cases to which Paragraph A of Part I applies, the income-tax shall further ———-
(!) 36 LT. R. 65. j r c MADURAI COOPERATIVE BANK v. l.T.O. (Chandrachud, /.) be increased by an additional surcharge for purposes of the Union calculated in the manner provided in the First Schedule. Clause l c) of Paragraph A prescribes the manner in which the additional surcharge is to be calculated. It provides that additional surcharge for purposes of the Union shall be calculated "on the amount of the residual mcome•· at the rates mentioned in that clause. Thus, both the purpose and con- cept of the additional surcharge are different from those of income-tax. The additional surcharge is leviable exclusively for purposes of the Union so that the entire proceeds of such surcharge may under Article 271 of the Constitution, from part of the Consolidated Fund of India. Taxes and duties mentioned in Article 269 (I), though levied and col- lected by the Government, have to be assigned to the States in the man- ner provided in clause (2) of that Article. Then again, the additional surcharge levied for purposes of the Union is to be calculated not on total income like the income-tax but it is to be calculated on the residual income. Section 2(8) of the Act of 1963 dcfmes residual income as total income reduced by (a) capital gains, if any, included in that total income and (bl the amount of tax (exclusive of additional surcharge) which would have been chargeable on such reduced total income if it had been the total income no part of which had been exempt from tax and on no portion of which deduction of tax had been admissible. In order that the exemption granted to co-operative banks by section 81 (i)(a) may not lose its meaning and content, section 2(8) of the Fin- ance Act introduces the concept of residual income on which alone the additional surcharge is payable; The residual income is not the same as the business income of a co-operative bank, which is exempt under section 81 (i)(a) from income tax. For ascertaining the residual in- come- the total income is reduced by the amount of capital gains and further by the amount of tax (other than additional surcharge) which. would have been charged on such reduced total income on the assump- tion that the whole of it was liable to be brought to tax. Thus, in the instant case the additional surcharge is not levied on the appellant's business income of Rs. 9,48,335 which is exempt from income-tax and super-tax. It is levied on the residual income of Rs. 5,39,386 which is arrived at after deducting Gross taxes (exclusive of additional surcharge) amounting to Rs. 4,60,712 from the assessee's gr0<.s income of Rs. 10,00,098. By section 3 of the Finance Act of 1963 no account can be taken of the additional surcharge in calculating any relief, rebate or deduct.ion in respect of income-tax payable on the total income of an assessee which includes any income on which no income-tax is payable or in respect of which a deduction of income-tax is admissible.
Section 3, by its terms, has precedence over anything contained in Chapter VII or Chapter VITI·· A or in sec:tion 110 of the Income·tax Act or section 2(5) of the Finance Act itself. Additional surcharge is treated in this way as falling fr1 a separate category. Thus, additional surcharge is a district charge, not dependen't for its lcviability on the assessee's liability to pay income-tax or super-tax. Such a qualification cannot be read .into 'cction 2(1 )(a)(ii) of the Act of 1963 as argued by the appellant. That seotion mes the language that "income-tax …. shall further be increased by an additional sur- 11-7!4SC1/75
charge", not for making the assessability to surcharge dependent upon assessability to income tax but for the simple reason that it an assessee's total income includes income on which no tax is payable, tax has all the same to be computed for purposes of rate. Section 110 of the In- come-tax Act, 1961 provides tha:t where there is included in the total income of an asscssee any income on which no income-tax is payable, the assessee shall be entitled to deduction, from the amount of income- tax with which he is chargeable on his total income, of an amount equal to the income-tax calculated at the average rate of income tax on the amount on which no income-tax is payable. The income-tax computed v
at a certain rate is by section 2( 1 )( a)(ii) to be further increased by an additional surcharge for purposes of the Union. This becomes clea- rer still from the language of Paragraph A, under the heading "Sur- charges On Income Tax". It says : "The amount of income-tax com- puted at the rate hereinbefore specified shall be increased by the aggre- gate of the surcharges". . If the intention was to limit the liability to pay additional surcharge to income which can be brought to income- tax, appropriate language could have been used to convey that simple sense.
The weakness of the appellant's contention becomes manifest when it is realised that were the contention right, the appellant would not be liable to pay additional surcharge even on that portion of its non-busi- ness income which is contained in the residual income. By the defini- tion in section 2(8) of:the Act of 1963, residual income means the total income as reduced and therefore, the non business income ·which is chargeable to income-tax must form a component of the residual in- come. Concededly, the appellant is liable to pay additional surcharge on its non-business income.
This is so. not because additional sur- charge is payable by law on non-business income but because it is payable on residual .income and residual income, by definition, includes non business income as reduced. In fact, it consists of the amount ot total income as reduced by the amounts mentioned in clauses (a) and (b) of section 2(8).
Relying on United Commercial Bank Ltd. v. Commissioner of ln- come-tax. West Bengal(!), East India Housing and Land Development Trust Ltd. v. Commissioner of Income-tax West Bengal('), and K. V. Al. M. Ramanathan Che/liar v. Commissioner of Income-tax, Mad- ras("), the appellant's counsel urged that income-tax is a single levy, that it is one tax and not so many taxes separately levied on several heads of income. This partly is the same argument in a different dis- guise that an asscesee who is not liable to pay income-tax cannot be made liable to pay addit;ional surcharge under the Finance Act, 1963. We have rejected that contention. Partly, the argument is designed to establish correlation with section 146 of the income tax Act, 196! by which, when any tax, interest, penalty, fine or any other sum is poy- able in consequence of any order passed under the Act, the Inconie-tax Officer has to ·serve upon the assessee a no1tice of demand in the pres- cribed form specifying the sum so payable. This provision presents no I() 321. T. R. 688.
(2) 42 I. T, R. 49. (3) SP I. T. R. 169, 191. IB c ' '} 'MADURAI COOPERATIVE BANK v. I.T.O. (Chandrachud, J.) difficulty for, if an ass_essee is liable to pay additional surcharge but no .income-tax or super-tax, the notice of demand will mention the parti• £ular amount payable as .tax due.
The appellant being liable [to pay .tax on it~ non-business income and additional surcharge on its residual .income, the demand notice will call for payment of the total amount .due from the appellant by way of tax.
The interpretation put by us on the Finance Act, 1963. does no vio- lence to section 4 of the Income-tax Act, 1961 under which income-tax at the rates prescribed by the Finance Act is to be charged "in accor- dance with, and subject. to the provisions of," the Income-'lax Act. The Income-tax Act exempts the assessee's business income from income- tax and super-tax.
The Finance Act brings to tax its residual income. The decision of the Allahabad High Court in Allahabad District Co- operative Bank Ltd. v. Union of llldia and Ors. (1) is directly in favour of the appellant and naturallY, learned counsel for the appellant relie~ on it very strongly. But that case, in our opinion, is incorrectly de- cided. The learned Judges were in error in holding that section 2 of the Finance Act, 1963 "does not provide for the levy of a tax other than income-tax" and that therefore, additional surcharge is not pay- able to the ex.tent oft the income which is exem]'.1t under section 81 of the Income-tax Act. One of the difficulties which the learned Judges felt in accepting the revenue's contention was ·that if "the additional <lllrcharge mentioned in the Finance Act of J 963 was not partake of the nature o~ ;income-tax it will not be possible to demand and realise it under the provisions of the Income-tax Act, and the notice of demand and recovery proceedings would be vitiated on that account". The very assumption of this observation is falacious because additional surcharge indubitably partakes of the nature and essential characteristics of in- come-tax. It is a tax on residual income and by reason of the definition contained in section 2(8) of the Act of 1963, "residual income" would include non-business income which under the Income-tax Act is charge- able to income-tax.
Thus, the additional surcharge, though levied by the Finance Act, 1963 independently of the Income-tax Act, is but a mode of levying tax on a portion of the assessee's income computed in accordance with the definition in section 2(8) of the Act of 1963. There- fore, the notice of demand under section 15 6 of the Income-tax Act can lawfully call for the payment of amount due from an assessee by way of additional surcharge.
For these reasons, we confirm the judgment of the High Court but in the circumstances there will be no order as to co9ts. P.H.P. Appeal dismissed. (I) 831. T. R. 895.