9911796707
TMI Blog1994 (11) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Surtax Act, 1964, to the deduction allowed under Chapter VIA of the Income-tax Act, 1961, for the assessment years 1968 69 to 1974-75 ? (2) Whether the Appellate Tribunal was right in holding that the amendment to the provisions of section 14 of -the Surtax Act, 1964, intro duced by the Taxation Laws (Amendment) Act, 1970, with effect from April 1, 1971, are applicable to the assessment years 1969-70 to 1970-71 ? (3) Whether the Appellate Tribunal was right in holding that the proposed dividend declared subsequent to the end of the accounting year should be treated as a reserve for the assessment year 1972-73 ? " So far as question No. 1 is concerned, at the time of hearing learned standing counsel for the department represented tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T.A. Nos. 505 and 506 of 1972-73, 106 of 1975-76, 502 of 1973- 74, 323 and 324 of 1974-75 dated November 13, 1978. In fact, the Commissioner of Income-tax (Appeals) has directed for the assessment years 196970 and 1970-71 that the assessee will be entitled to the consequent relief in the surtax assessment following his appellate order in the income-tax appeals for the corresponding years. Before the Tribunal, the Department submitted that this ground was taken by the department by way of abundant caution in case the Commissioner of Income-tax (Appeals) orders in the income-tax appeals get modified, which would also affect the surtax assessments as a sequel. However, the Tribunal held that section 14 of the Surtax Act provides that followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, covers the previous year. The amended law came into force on or April 1, 1976, and it naturally applied for the accounting year preceding that date. The statute itself specifically declares that the law as on April 1, 1976, would be applicable to the income earned in the previous year. The law did not come into operation retrospectively but the law acting prospectively applied to certain stated facts which took place in the previous year." Therefore, according to learned standing counsel, inasmuch as the assessment years involved in the present case are 1969-70 and 1970-71, the law as it stood on April 1, 1971, cannot be made applicable. It remains to be seen that according to the facts arising in the abovesaid decision the point for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority and the Tribunal. Another decision relied upon in this context is Waldies Ltd. v. CIT [1978] 115 ITR 286, wherein the Calcutta High Court had an occasion to consider the consequent rectification of assessment under the Surtax Act under section 13 of the Companies (Profits) Surtax Act, 1964. While considering this provision, the Calcutta High Court held that the assessment under the Income-tax Act and the Companies (Profits) Surtax Act are not only closely connected but these are integral parts of each other and interwoven, because the "chargeable profits" upon which the levy of the Companies (Profits) Surtax Act is directed cannot be computed without the records of the income-tax assessment, and neither can the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded section 14 would be applicable to the facts of this case. On the other hand, learned standing counsel for the department submitted that section 14 of the Companies (Profits) Surtax Act is substantive in nature and it cannot be considered as procedural in nature. In order to support this contention reliance was placed upon ITO v. S. K Habibullah [1962] 44 ITR 809, wherein the Supreme Court while considering the amended provisions of section 35(5) of the Indian Income-tax Act, 1922, held " Clause (5) of section 35 of the Income-tax Act which was enacted by the Income-tax (Amendment) Act, 1953, is not declaratory of the pre-existing law, nor a matter relating to procedure, but affects vested rights, and must be deemed to have come into fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be considered to be substantive in nature. But it provides machinery for rectification of the income for the purpose of levying surtax. Even otherwise, since the final order was made by the Commissioner of Income-tax on November 30, 1978, which is after the coming into force of the amended Act on April 1, 1971, the assessee is entitled to recomputation of his income under the Surtax Act in consequence of the order passed by the Commissioner of Income-tax in his income-tax assessment. Accordingly, we hold that the order passed by the Tribunal in directing the Surtax Officer to compute the income of the assessee in consequence of the order passed by the Commissioner of Income-tax (Appeals) in the appellate proceedings appears to be in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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