1979 (9) TMI 4 - SC - Income Tax

Interpretation of Article IV of the Agreement for Avoidance of Double Taxation in India and Pakistan - agriculture income - not taxable in Pakistan but taxable in India as foreign agricultural income - assessee is entitled to abatement of tax on the entire business income in Pakistan without setting it off against the agricultural loss, though the loss had to be taken into account and adjusted against the respondent s profits in India

Issues Involved:
1. Interpretation of Article IV of the Agreement for Avoidance of Double Taxation between India and Pakistan.
2. Set-off of agricultural loss in Pakistan against business income in Pakistan for the purpose of tax abatement.
3. Applicability of Section 49D(3) of the Indian Income Tax Act, 1922.
4. Distinction between avoidance of double taxation and relief against double taxation.

Detailed Analysis:

1. Interpretation of Article IV of the Agreement for Avoidance of Double Taxation between India and Pakistan:
The core issue revolves around the interpretation of Article IV of the Agreement for Avoidance of Double Taxation between India and Pakistan. The respondent, an Indian company with income from both India and Pakistan, claimed abatement on its entire profit from manufacturing business in Pakistan. The Tribunal and the High Court held that the assessee was entitled to abatement on the entire profit from the manufacturing business in Pakistan without setting off the agricultural loss incurred in Pakistan. The High Court affirmed that for purposes of abatement, income from each source or category specified in the Schedule to the Agreement had to be separately considered and dealt with.

2. Set-off of Agricultural Loss in Pakistan Against Business Income in Pakistan for the Purpose of Tax Abatement:
The Income Tax Officer (ITO) initially set off the agricultural loss in Pakistan against the manufacturing profit in Pakistan, granting relief only on the net profit. The Tribunal, however, held that the assessee was entitled to abatement on the entire profit from the manufacturing business in Pakistan, without setting off the agricultural loss. The High Court agreed, stating that the agricultural income in Pakistan was not covered by the Agreement and hence, no abatement could be allowed on it. The Supreme Court upheld this view, concluding that the assessee was entitled to relief on the business income in Pakistan without considering the agricultural loss.

3. Applicability of Section 49D(3) of the Indian Income Tax Act, 1922:
Section 49D(3) of the Indian Income Tax Act, 1922, was examined to determine its relevance. It was noted that if the agricultural income in Pakistan was chargeable to tax there, relief could only be granted under Section 49D(3). Since no tax was paid on the agricultural income in Pakistan due to it being a loss, Section 49D(3) was not applicable. The Supreme Court clarified that the loss had to be allowed in India while computing the total income of the assessee, but it would not affect the abatement of tax on the business income in Pakistan under the Agreement.

4. Distinction Between Avoidance of Double Taxation and Relief Against Double Taxation:
The judgment highlighted the distinction between avoidance of double taxation and relief against double taxation. Avoidance of double taxation ensures that the assessee does not have to pay tax first and then apply for relief, whereas relief against double taxation involves paying the tax and then seeking a refund. The Supreme Court emphasized that the Agreement between India and Pakistan was for avoidance of double taxation, and the relief had to be granted under the terms of the Agreement, not under Section 49D(1).

Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's decision that the assessee was entitled to abatement of tax on the entire profit from its manufacturing business in Pakistan without setting off the agricultural loss incurred in Pakistan. The judgment clarified the interpretation of Article IV of the Agreement, the applicability of Section 49D(3), and the distinction between avoidance of double taxation and relief against double taxation. The appeal was dismissed with costs.

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