1958 (5) TMI 2 - SC - Income Tax

Whether the appellant is chargeable to tax under section 42(2) Of the Act? Held that - What we have to decide is whether having regard to the course of dealings between the non-resident companies and the appellant it can be said of the former that they carry on business with the latter within the meaning of section 42(2). Now, it should be observed that section 42 speaks not of the non-residents carrying on business in the abstract but of their carrying on business with the resident, and in the context, it must include all activities between them having relationship to their business. That is the view taken by the learned judges in the court below, and we are in agreement with it. We are accordingly of opinion that, on the facts found, the non-resident companies must be held to have carried on business with the appellant as provided in section 42(2). Appeal dismissed.

Issues Involved:
1. Applicability of Section 42(2) of the Indian Income-tax Act, 1922.
2. Whether the appellant is chargeable to tax under Section 42(2).
3. Interpretation of the term "business" under Section 42(2).
4. Whether the profits chargeable under Section 42(2) must be separately assessed.

Detailed Analysis:

1. Applicability of Section 42(2) of the Indian Income-tax Act, 1922
The primary issue was whether the appellant, a private limited company, was chargeable to tax under Section 42(2) of the Indian Income-tax Act, 1922. The appellant's business involved repairing ships for two British companies without making any profit. The Income-tax Officer argued that the appellant had arranged its business in such a way that it produced no profits due to its close financial connection with the non-resident companies, thus making it liable to tax under Section 42(2).

2. Whether the appellant is chargeable to tax under Section 42(2)
The appellant contended that Section 42(2) imposes a charge only on a business carried on by a non-resident, and thus, no tax could be imposed on the appellant's business. The court found that the language of Section 42(2) was clear and unambiguous, indicating that the business of the resident (appellant) was the subject of taxation and not that of the non-resident. The court noted that the words "to the resident" and "therefrom" in Section 42(2) clearly referred to the business of the resident, thus rejecting the appellant's argument.

3. Interpretation of the term "business" under Section 42(2)
The appellant argued that the non-resident companies did not carry on business with the appellant but merely got their ships repaired by it. The court disagreed, stating that the term "business" in fiscal statutes should be construed broadly. The court noted that the non-resident companies engaged in continuous and organized activities with the appellant under a special agreement, which constituted carrying on business with the resident within the meaning of Section 42(2).

4. Whether the profits chargeable under Section 42(2) must be separately assessed
The appellant contended that the profits chargeable under Section 42(2) should be separately assessed and not added to other profits or income. This contention was based on the assumption that Section 42(2) imposed a vicarious liability on the appellant for the profits of the non-resident. The court rejected this argument, stating that the charge was on the business of the appellant and not on the non-resident companies, thus negating the need for separate assessment.

Conclusion:
The court dismissed the appeal, holding that the appellant was chargeable to tax under Section 42(2) of the Indian Income-tax Act, 1922. The court found that the business of the resident (appellant) was the subject of taxation, and the non-resident companies were carrying on business with the appellant. The profits chargeable under Section 42(2) did not need to be separately assessed. The appeal was dismissed with costs.

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