AHMEDABAD MANUFACTURING AND CALICO PRINTING CO. LTD. AND ANR. v. A.V. JOSHI

The Judgment of the Court was delivered by H

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A KIRPAL, J. In this appeal the only question which arises for con- sideration is with regard to the scope and interpretation of Section BOK of the Income Tax Act. 1961 (hereinafter referred to as 'the Act'). • The appellant is a public limited company and is engaged in manufacturing of textiles, chemicals etc. It established a new industrial B undertaking by installing a Polyester Fibre Plant at Baroda in the account- ing year of 1974-75, relevant to the assessment year 1975-76. In the sub- sequent accounting year 1975- 76, the appellant also installed a new Sulzer plant at Ahmedabad. • C Both the aforesaid plants fulfilled all the conditions for the grant of necessary relief under Section BO J of the Act. Accordingly, in the course assessment of the company for the assessment years commencing from the assessment year 1975-76, the relief to which the appellant was entitled under Section BOJ of the Act, was worked out and, to the extent that the profit in respect of the said plant was not sufficient to absorve the said relief, the amounts of the said relief were carried forward to subsequent years as provided by Section BO J(3) of the Act. For the said assessment years commencing from 1975-76, the company applied for requisite certifi- cate under Section BOK read with Section 197 (3) of the Act for the purpose of enabling its shareholders to claim exemption out of the dividends received by them because the company was entitled to relief under Section BOJ for those years. The Income Tax Officer, in respect of the assessment years 1975-76 and 1977-7B, issued a certificate under Section BOK of the Act and in this certificate, for the purpose of determining the exempted portion of the dividend out of the total dividend amount declared by the appellant company, the relief allowable to the appellant under Section BOJ of the Act was taken as the total relief allowable under the said provision be;ng 6% of the capital employed in the said new undertaking.

During the accounting year relevant to the assessment year 197B-79, the appellant company declared a total dividend of Rs. 1,11,B6,231 to its shareholders. An application was made to the Income Tax Officer under Section 197(3) read with Section BOK of the Act requesting for certificate • under the said Section BOK. According to the appellant, the relief claimed was Rs. 1,00,35,434 for Baroda Plant and Rs. 24,07,556 for Sulzer Plant. The respondent, thereupon called for certain information from the appel- H !ant with regard to the total income of the appellant for the assessment

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year 1978-79 as well as the profits of the Polyester Fibre Plant and the A Sulzer Plant for the accounting year relevant to the assessment years 1977-78 and 1978-79. The appellant company replied that the total income of the company for the assessment year 1978-79 was nil and there were carried forward losses, depriciation etc. in respect of the preceding years. It also stated that the profits of the Polyester Fibre Plant for the assessment B year 1978-79 were Rs. 4,66,73,159. In respect of Sulzer plant it was pointed out that there was no profit.·

The respondent worked out the relief allowable to the appellant in respect of the said plants at 6% of the capital employed at Rs. 77,42,921 in respect of the Polyester Fibre Plant and Rs. 18,07,968 in respect of the C Sulzer Plant. On that basis the exempted percentage of the dividend according to the respondent worked out at Rs. 85.38% as against 100% which had been indicated by the appellant. The respondent further held that the appellant was not entitled to have the certificate on that footing of 85.38% because the working of the Sulzer Plant shows a business loss D of Rs. 7,20,260 as computed under the Act and, therefore, there could not be any claim for exemption under Section 80K in respect of the said plant. It further observed that only Rs. 77,42,921 referrable to 6% of the capital employed in the Polyester Fibre Plant, as computed by the respondent, was entitled to exemption under Section SOK out of the total dividends of Rs. 1,11,86,231. On that basis, the respondent issued a certificate under Section E 80-K dated 24.8:1978 which was designated as a provisional certificate. On the appellant's company request for reconsideration being turned down, a writ petition was filed in the High Court of Gujarat, contending that the respondent should be directed to issue a certificate for Rs. 95,50,889 in respect of the Polyester Fibre Plant and the Sulzer Plant. F The High Court of Gujarat, by the impugned judgment dated 29.1.1979, came to the conclusion that in respect of the previous year relevant to the assessment year 1978-79 the Sulzer Plant, which was a new undertaking, had no assessable profits and gains and, therefore, the benefit under Section 80-K could not be granted in respect of the relevant amount G of capital employed in that plant during that particular previous year. In arriving at the aforesaid conclusion the High Court observed that the decision of this Court in the case of Union of India v. Coromande/ Fertilizer Ltd., 102 I.T.R. 533 did support the contention of the appellant to the effect that the benefit under Section BOK would be available but the High Court H

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A doubted the correctness of this judgment in view of the decisions of this Court in the cases of Rajapalavam Mills Ltd. v. Commissioner of Income Tax Madras, 115 l.T.R. 777 and Commissioner of Income Tax v. Patia/a Ir · Flour Mills Co. P. Ltd., 115 l.T.R. 640.

The decision of the this Court m Coromandel Fertilizer's case B (supra) related to the interpretation of Section SOK of the Act. The material portion of the section was there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial undertaking or ship or the business of a C hotel in respect of which the company is entitled to deduction under Section SOJ. It was held that even if the new industrial undertaking had no profits or gains assessable to the income tax during the assessment years in question the assessee was entitled to the relief under Section SOK. Emphasis was laid on the words "as is attributable to profits and gains derived by the company......... " in respect of which the company is entitled to deduction under Section SOJ and it was held that even if deduction under Section 80J was not actually allowed but the entitlement was there, then the provision of Section SOK would be attracted.

The High Court, by an involved reasoning, came to the conclusion that in the light of the interpretation placed on the scheme ofsection SOJ by the three Judges Bench in Patiala Flour Mills Co.'s case & Rajapalayam Mills' case (supra) which interpretation was not present when this Court decided Coromandel Fertilizer's case (supra), the provisions of Section SOK were not applicable when the profits and gains derived by the company from a new industrial undertaking when computed under the provisions of Income Tax Act are nil or show a loss.

In our opinion there is no justification for the High Court not to have followed the decision of this Court in Coromandel Fertilizer's case (supra). It is not in disputed that there was an entitlement to the appellant in the present case under Section SOJ and this being so the decision in Coroman- del Fertilizer's case (supra) was clearly applicable. Patiala Flour Mills case (supra) was concerned with Section SOJ of the Act and Rajapalayam Mills' case (supra) was essentially concerned with Section 15(C) of the Act, 1922 and Section S4 of the Act, 1961. In neither of these two cases was any reference made to Coromandel Fertilizer's case (supra) for the smiple

JI AHMED ABAD MFG. AND CALICOv. A.V. JOSHI [KIRPAL, J.] 155

reason that it was not necessary. When the assessee is entitled to the benefit under Section SOK, on the plain reading of the said section as interpreted by this Court, there should have been no occasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case (supra) and Rajapalayam Mills Case (supra) which related to the interpretation of different sections o' the Act. The latter decisions are essential only for determining whether the company was entitled to the benefit under Section SOJ or not. On this aspect, there is no dispute in the present case. The entitlement was there. Once this is not disputed, then automatically as per the decision in Coromandel Fertilizer's case (supra), the appellant would be entitled to the benefit of Section SOK and, there- fore, the High Court was clearly in error in dismissing the writ petition. C

For the aforesaid reasons, this appeal is allowed, the impugned judgment of the High Court is set aside and the respondent is directed to issue a certificate to the appellants, in accordance with law, showing therein the portion of exempted dividend in respect of Polyester Fibre Plant and Sulzer Plant. The appellants are also entitled to costs. D R.P. Appeal allowed.