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Issues Involved:
1. Whether the Tribunal is right in law in holding that unless the total income is assessed to tax, there can arise no liability under the provisions of the Companies (Profits) Surtax Act. 2. Whether the assessment under the Companies (Profits) Surtax Act is wrong and against law. Issue-wise Detailed Analysis: 1. Tribunal's Decision on Total Income Assessment: The Tribunal held that unless the total income is assessed to tax, no liability under the Companies (Profits) Surtax Act (the Act) can arise. The assessee, a non-resident company, argued that the assessment under section 172(4) of the Income-tax Act, 1961 (I.T. Act), was not a computation of total income and thus could not form the basis for surtax. The Tribunal agreed with this view, emphasizing that an assessment under section 172(4) is not the same as an assessment of total income under sections 143 or 144 of the I.T. Act. The Tribunal's decision was based on the interpretation that the surtax could only be levied on the total income as defined under section 2(45) of the I.T. Act. 2. Legality of Assessment under the Companies (Profits) Surtax Act: The Assessing Officer initially proposed to levy surtax based on the assessment under section 172(4) of the I.T. Act, treating the assessed income as chargeable profits under section 2(5) of the Act. However, the Commissioner of Income-tax (Appeals) and the Tribunal nullified this assessment, stating that the income assessed under section 172(4) was not the total income but only the income from specific shipping operations. They highlighted that section 172(7) of the I.T. Act provides an option for a comprehensive assessment of total income, which was not exercised by the assessee. Therefore, without such an assessment, the surtax levy was deemed incorrect and against the law. Relevant Provisions and Interpretation: The judgment delved into the relevant sections of both the I.T. Act and the Act. Section 172 of the I.T. Act deals with the shipping business of non-residents, allowing for a provisional assessment of income from shipping operations. Section 2(45) of the I.T. Act defines "total income," and section 2(5) of the Act defines "chargeable profits" as the total income computed under the I.T. Act, adjusted per the First Schedule. The court emphasized that sections 172(2) and (4) of the I.T. Act provide for provisional assessments, not comprehensive total income assessments. Section 44B of the I.T. Act, which deals with the profits and gains of shipping business for non-residents, further supports this distinction. Conclusion: The court concluded that the assessments under section 172(4) of the I.T. Act are provisional and do not constitute total income assessments required for surtax computation. The decision in A. S. Glittre's case was distinguished as it was rendered in a different context. The court affirmed the Tribunal's view that surtax under the Act is not leviable without a proper total income assessment under section 44B or section 172(7) of the I.T. Act. Therefore, the questions referred were answered in the affirmative, in favor of the assessee and against the Revenue.
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