MC LEOD RUSSEL INDIA LIMITED V. COMMISSIONER OF INCOME TAX AND ANR

ITA/11/2011

AI Insights

The case revolves around the appellant, engaged in the business of growing, manufacturing, and selling tea, who contested the exclusion of certain receipts from their composite income before apportionment under Rule 8 of the Income Tax Rules, 1962. The receipts in question included income from premium on import licenses, sale of scrap, miscellaneous garden income, and excise duty rebates. The Income Tax Authorities initially excluded these from the composite income, categorizing them as Central Taxable Income. The appellant's appeals to the Commissioner of Income Tax Appeals and the Income Tax Tribunal were unsuccessful, leading to the present appeal under Section 260A of the Income Tax Act, 1961.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 756648 (HC-GUWAHATI)
• Appeal Type: Others
• Pronouncement Date: 16-11-2011
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961, Income Tax Rules, 1962, Assam Agricultural Income Tax Act, 1939
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: S SARMAH
• Assessee Lawyers: N HAWELLIA
• Keywords: Agricultural income; Appeal; Apportionment; Assessment Order; Income derived from business; Income Tax; Composite income
• Section: 260A; 8; 28(iii)(c); 28(iii a)

Judgement Text

"ITA 11/2011 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH Judgement and Order (Ansari, J) This is an appeal under Section 260A of the Income Tax Act, 1961, passed , in IT Appeal No. 99 (Gau) 2008, by the learned Income Tax Appellate Tribunal, Guwahati Bench, whereby the learned Tribunal has upheld the assessment of compos ite income by the Income Tax Authorities, which was put to challenge by the asse ssee-appellant herein. 2. We have heard Ms. N. Hawellia, learned counsel for the assessee-appellan t. We have also heard Mr. S. Sarmah, learned Standing counsel, Department of Re venue, appearing on behalf of the respondents. 3. The material facts, giving rise to this appeal, may, in brief, be set ou t as under: (i) The appellant is engaged in the business of growing, manufacturing and selli ng of tea. As the appellant is engaged in the business of growing, manufacturing and selling of tea, the appellant’s income is, accordingly, required to be comp uted as if the income is an income derived from business and 40% of such income is, in terms of the Rule 8 of the Income Tax Rules, 1962, is deemed to be income subject to the Income Tax Act, 1961; whereas the balance 60% of the income is t reated as the agricultural income for the purpose of levy under the Assam Agricu ltural Income Tax Act, 1939. In the assessment year, 2004-05, the appellant sub mitted its return of income claiming a sum of Rs. 2,73,40,080/- as part of compo site income before apportionment thereof under the Rule 8 of the Income Tax Rule s, 1962. The income, as reflected by the appellant, included as under: Heads Amount (Rs) Premium on import Licence 1,20,25,812/- Sale of Scrap 2,12,218/- Misc. Garden Income 1,44,32,310/- Excise duty 6,69,740/- (ii) During the course of assessment proceeding, the appellant, vide its letter, dated 01-12-2006, replied to the questionnaires for the assessment p roceeding and gave details of the aforesaid receipts. However, the assessing off icer, vide order of assessment, dated 29-12-2006, excluded the said miscellaneo us receipts amounting to Rs. 2,73,40,080/- from the composite income of the appe llant and added the same to the Central Taxable Income after apportionment under Rule 8 of the Income Tax Rules, 1982. However, the assessing officer, while ex cluding the said miscellaneous receipt amounting to Rs. 2,73,40,080/- from the c omposite income, held that whatever income is derived by the appellant cannot be included in the composite income before apportionment thereof. The assessing o fficer also held, in his order of assessment, dated 29-12-2006, that the fact of carrying on business of tea does not lead to inference that all the income, rec eived by the appellant from its business, were derived from its business of tea. The assessing officer further held, in the assessment order, dated 29-12-2006, that it is the manner and nature in which the income is derived, which is releva nt, and not merely the fact that the person is engaged in the business or in the profession. The assessing officer, therefore, held that the income, received by the appellant, has to be treated as the Central Taxable Income having regard to the source from which the income is derived and merely because the income has b een received by a grower, manufacturer or seller of tea, it should not be includ ed in the composite income. The assessing officer, therefore, held that the amo unt of other income, received by the appellant, falls under the category of Cent ral Taxable Income and has to be dealt with in accordance with the provisions of Income Tax Act, 1961, read with the Income Tax Rules, 1962. Consequently, the assessing officer excluded the said miscellaneous receipt amounting to Rs. 2,73, 40,080/- from the composite income of the appellant and added the said sum to th e Central Taxable Income as business income of the appellant after apportionment under Rule 8 of the Income Tax Rules, 1962. (iii) Aggrieved by the order of assessment, dated 29-12-2006, aforemen tioned, the appellant preferred an appeal, before the Commissioner of Income Tax Appeals, Guwahati, on the ground, inter alia, that the assessing officer had er red in excluding the miscellaneous receipt of Rs. 2,73,40,080/- from the compos ite income of the appellant and in treating the miscellaneous receipts as Centra l Taxable Income. (iv) By order, dated 14-02-2008, the Commissioner of Income Tax Appeals (II), Guwahati, dismissed the appeal and upheld the assessment order. In his order, d ated 14-02-2008, aforementioned, while upholding the order of assessment, the Co mmissioner, Income Tax (Appeals), took the view that Rule 8 provides for computa tion of only those income, which have been derived from the sale of tea that are grown and manufactured by the seller, and, therefore, the miscellaneous receipt s, in the present case, cannot be said to have been derived from the sale of tea grown and manufactured by the appellant. The Commissioner also took the view th at the miscellaneous receipts, in the present case, might be ’attributable to’ t he tea business, but it cannot be treated as income ’derived from’ the tea busin ess. The miscellaneous expenses, which the appellants had shown in the income t ax return, were, according to the Commissioner, not income derived from the acti vity of growing and manufacturing of tea and do not, therefore, bear direct nexu s with the sale of the tea grown or manufactured by the appellant. The appellate authority further took the view that the composite income, referred to in Rule 8, shall arise out of the core activity of growing and manufacturing of tea and must, therefore, directly relate to the operational activities of tea and not to extraneous activities thereof. With the reasonings, so assigned, the appeal wa s dismissed by the appellate authority. (v) Aggrieved by the order of assessment and the dismissal of the ap peal by the appellate authority, the appellant filed an appeal before the Income Tax Tribunal, Guwahati Bench, Guwahati, which came to be registered as ITA No. 99 (Gau) of 2008. (vi) The learned Tribunal, too, vide its order, dated 16-11-2010, afo rementioned, has dismissed the appeal and upheld the order passed by the appella te authority by taking the view that the miscellaneous receipts, amounting to Rs . 2,73,40,080/-, shall not be treated as composite income of the appellant befor e apportionment under Rule 8. The learned Tribunal also took the view that in or der to be composite income under Rule 8, the income has to be derived from the b usiness of growing, manufacturing and selling of tea and, in the case at hand, t hough the miscellaneous receipts might be treated as ’attributable to’ the busin ess of tea of the appellant, the miscellaneous receipts cannot be treated, in la w, as income ’derived from’ the business of tea. On the basis of the conclusions , so arrived at, the learned Tribunal, by its order, dated 16-11-2010, aforement ioned, dismissed the appeal. (vii) Aggrieved by the dismissal of the appeal by the learned Tribunal, the as sessee has presented before us, as appellant, this appeal under Section 260A of the Income Tax Act, 1961. 4. This appeal has been admitted on the following substantial questions of law for determination: 1. Whether the receipts on account of premium on import licence, sale of scrap, miscellaneous garden income and excise duty rebate from part of the composite i ncome before apportionment under Rule 8 of the Income Tax Rules, 1962, being der ived from the sale of tea grown and manufactured ? 2. Whether in the facts and circumstances of the case, the conclusion of th e learned Income Tax Tribunal, Guwahati, affirming the determination made by the learned Commissioner of Income Tax (Appeal), Guwahati, that premium on import l icence, sale of scrap, miscellaneous garden income and excise duty rebate do not constitute the composite income before apportionment under Rule 8 of the Income Tax Rules, 1962, is not borne out by the relevant facts and is thus perverse ? 5. Both the above questions, which have been formulated for hearing in this appeal are, in effect, one and the same. 6. Submissions: Presenting the appeal, on behalf of the appellant, Ms. Hawelia, learned counsel for the appellant, points out that the learned Tribunal failed to notice that the appellant, as an assessee, had claimed four kinds of receipts as compo site income before apportionment thereof under Rule 8 of the Income Tax Rules, 1 962, these four receipts being, Premium on import licence, amounting to Rs. 1,20 ,25,812/-, Sale of Scrap, amounting to Rs. 2,12,218/-, Misc. Garden Income, aris ing out of receipts of insurance claim, amounting to Rs. 1,44,32,310, and Excis e duty amounting to Rs. 6,69,740/-. The learned Tribunal, further points out Ms . Hawelia, learned counsel, has committed manifest error of law in refusing to t reat the income ’derived by’ the assessee-appellant from the sale of import lice nce, amounting to Rs. 1,20,25,812/-, as the appellant’s composite income before apportionment thereof under Rule 8 of the Income Tax Rules, 1962, inasmuch as th e learned Tribunal failed to appreciate the fact that, as per Section 28 (iii a) of the Income Tax Act, 1961, profits on sale of a licence granted under the Imp orts (Control) Order, 1955, under the Imports and Exports (Control) Act, 1947, i s chargeable to income tax under the head, ’profits and gains of business or pro fession’, and the same is an income ’derived from’ the sale of tea grown and man ufactured by the assessee-appellant. In this regard, the learned counsel for th e assessee-appellant submits that the learned Tribunal wholly failed to apprecia te that the import licence is a benefit against the export of goods and merchand ise, which is the outcome of the activities of exporting tea by the assessee-app ellant and the same motivates the assesse to sell tea, at a competitive rate, to exploit export market and thereby the same is clearly an income ’derived from’ the sale of tea grown and manufactured by the appellant and forms part of the co mposite income before apportionment thereof under Rule 8 of the Income Tax Rules , 1962. 7. Ms. Hawellia, learned counsel for the assessee-appellant, has also submi tted that the learned Tribunal fell in error in excluding the receipt from sale of scraps amounting to Rs. 2,12,218/- from the composite income of the assessee- appellant before apportionment under Rule 8 of the Income Tax Rules, 1962, witho ut appreciating the fact that sale of scraps, generated at the appellant’s tea g ardens, is out of the activity of growing and manufacturing of tea and, therefor e, the said sales of scraps were integrally connected with the business of growi ng and manufacturing of tea and that the same form part of the composite income of the appellant before apportionment under Rule 8 of the Income Tax Rules, 1962 . 8. It is submitted by Ms. Hawellia, learned counsel for the assessee-appell ant, that the learned Tribunal failed to consider the fact that the receipt of R s. 2,12,218/-, on account of sale of scraps being in relation to the regular sal e of unusable goods at tea gardens, which are procured from time to time in cour se of running of the business of growing and manufacturing of tea, and expenses incurred for such items are deductible, while computing the composite income bef ore apportionment under Rule 8 of the Income Tax Rules, 1962. 9. With regard to the receipts of miscellaneous garden income of Rs. 1,44,3 2,310/-, as reflected in the return of the assessee-appellant, it is submitted b y Ms. Hawellia, learned counsel, that the said sum of Rs. 1,44,32,310/-, being i nsurance claim realised by the appellant on account of loss caused due to flood and heavy rains to tea bushes, finished plantations, etc., is directly connected to the business of the growing and manufacture of tea and the same, therefore, formed part of the composite income before apportionment under Rule 8 of the Inc ome Tax Rules, 1962. 10. As regards exclusion of a sum of Rs. 6,69,740/-, on account of excise du ty rebate, from the composite income before apportionment under Rule 8 of the Ru les, Ms. Hawellia, learned counsel, submits that the exclusion of the said sum o f Rs. 6,69,740/-, from being treated as composite income, is wholly illegal and not tenable in law inasmuch as the learned Tribunal failed to note that the said sum of Rs. 6,69,740/- related to excise duty rebate, which was deductible in co mputing the composite income paid by the appellant in terms of Section 28(iii c) of the Income Tax Act, 1961, whereunder any duty of customs or excise, repaid o r repayable as drawback to any person against exports under the Customs and Cent ral Excise Duties Drawback Rules, is chargeable to income tax under the head ’pr ofits and gains of business or profession’. Therefore, excise duty rebate, bein g of such a nature, as described hereinbefore, ought to be included, according t o Miss Hawellia, as the part of composite income before application of Rule 8 of the Income Tax Rules, 1962. 11. Based on the above submissions, Ms. Hawellia, learned counsel, contends that the order of the Assessing Officer was wholly bad in law and the appellate authority as well as the learned Tribunal have incorrectly upheld the assessment order, though the same was not tenable in law and, hence, the order of the lear ned Tribunal, which stands impugned in this appeal, may be set aside and, in con sequence thereof, the impugned assessment order as well as the impugned order of the appellate authority may also be set aside and quashed. 12. Resisting the appeal, Mr. S. Sarma, learned Standing counsel, appearing for the respondents, has submitted that the assessee-appellant had completely fa iled to satisfy the Assessing Officer about the tenability of its claim to treat the receipts of Premium on import licence, amounting to Rs. 1,20,25,812/-, Sale of Scrap, amounting to Rs. 2,12,218/-, Misc. Garden Income amounting to Rs. 1,44,32,310, and Excise duty amounting to Rs. 6,69,740/-, as composite i ncome before apportionment thereof under Rule 8 of the Income Tax Rules, 1962, a nd since the assessee-appellant had failed to satisfy, by producing relevant mat erials before the Assessing Officer, that the claims of the assessee-appellant f or the benefit, under Rule 8, were tenable in law, the Assessing Officer was wit hin the ambit of its power in rejecting the claims of the assessee-appellant and in making the impugned assessment order. In such circumstances, according to M r. Sarmah, learned Standing counsel, the assessment order was wholly consistent with law and, hence, neither the impugned order of the appellate authority, nor the impugned order of the learned Tribunal calls for interference in appeal. 13. While considering the present appeal, in the light of the rival submissi ons made before this Court, it needs to be noted that the correctness of the var ious amounts, shown as Premium on import licence, Sale of Scrap, Misc. Garden I ncome, and Excise duty, etc., are not in dispute. What is in dispute, as evide nt from the formulation of the substantial questions of law, is the fact as to w hether the amounts, which have been so shown, ought to have been treated by the respondents as the composite income, before apportionment thereof under Rule 8 o f the Income Tax Rules, 1962, derived from the business of sale of tea grown an d manufactured by the assessee-appellant. 14. The moot question, therefore, which arises for consideration is: Whethe r the various receipts of income, which the assessee-appellant has claimed to be its composite income, are, in law, composite income and fall within the ambit o f Rule 8 of the Income Tax Rules, 1962 ? 15. For the purpose of correct appreciation and clarity, what needs to be po inted out, at the very outset, is that the Income Tax Rules, 1962 (hereinafter r eferred to as ’the Rules’), having taken note of the fact that an assessee may d erive income partially from agriculture and partially from business, introduced a mechanism for the purpose of making assessment of income as ’derived from busi ness’ vis-à-vis income, which is treatable as agricultural income. Part-II of the Rules deals with the determination of income derived from various sources. Under the heading, ’D - Special cases’, various incomes have been taken into acc ount in order to show as to how they are to be computed and apportioned for the purpose of imposition of tax. Rule 7 of the Rules, which falls under the headin g ’D - Special cases’, deals with income, which is partially agricultural and pa rtially from business, and lays down as to what are the various components, whic h are to be taken into account for the purpose of assessment of a receipt treata ble as agricultural income vis-à-vis income chargeable to income tax under the h ead ’profits and gains of business’. 16. It is Rule 8, which is relevant for our purpose inasmuch as Rule 8, whic h falls under the heading, ’D - special cases’, deals with income from the manuf acture of tea. Rule 8 of the Rules, being relevant and fundamental in nature in answering the questions, which have been formulated in this appeal, as substant ial questions of law, are reproduced below: 8. (1) Income derived from the sale of tea grown and manufactured by the seller in India shall be computed as if it were income derived from business, and fort y per cent of such income shall be deemed to be income liable to tax. (2) In computing such income an allowance shall be made in respect of the co st of planting bushes in replacement of bushes that have died or become permanen tly useless in an area already planted, if such area has not previously been aba ndoned and for the purpose of determining such cost, no deduction shall be made in respect of the amount of any subsidy which, under the provision of clause(30) of section 10, is not includible in the total income. 17. From a bare reading of Rule 8, what becomes abundantly clear is that the rule making authority has prescribed that the income, which is derived from sal e of tea grown and manufactured by a seller, shall be treated as if it were the ’income derived from the business’ and 40% of such income shall be deemed to be income chargeable under the Income Tax Act, 1961. Extended logically, it would mean that the remaining 60% of the income has to be treated as agricultural inco me and would, obviously, be chargeable to tax under the Assam Agricultural Incom e Tax Act, 1939. 18. What, now, needs to be noted is that Section 28 of the Income Tax Act, 1 961, embodies certain income chargeable to income tax under the head ’profits an d gains of business or profession’. Since Section 28 (iii a) and Section 28 (ii i c) of the Income Tax Act, 1961, are relevant for the purpose of deciding this appeal, both these Rules are reproduced below: 28. The following income shall be chargeable to income-tax under the head ’Prof its and gains of business or profession’ - (iiia) profits on sale of a licence granted under the Imports (Control) Order, 1955, made under the Imports and Exports (Control) Act, 1947. *** *** *** *** *** *** (iiic) any duty of customs or excise re-paid or re-payable as drawback to any pe rson against exports under the Customs and Central Excise Duties Drawback Rules, 1971. 19. From a bare reading of Section 28 (iii a), it becomes clear that the pro fits on sale of a licence, granted under the Customs and Central Excise Duties D rawback Rules, 1971, are to be treated as income derived from the sale of tea gr own and manufactured. Similarly, Section 28 (iiic) provides that duty of custom s or excise re-paid or re-payable as drawback to any person against exports unde r the Customs and Central Excise Duties Drawback Rules, 1971, has to be treated as an income chargeable, under the Income Tax Act, within the purview of the hea d of ’profits and gains of business and profession’. 20. In the present case, the assessee-appellant, in its annual return of inc ome, showed the premiums paid by it on import licence, amounting to Rs. 1,20,25, 812/-, as a composite income. It is noteworthy, in this regard, that Section 28 (iii a) clearly lays down that the ’profits and gains derived from business and profession’ is chargeable to income tax under the head of ’profits and gains of business’ and the same has to be treated as income derived from sale of tea, gr own and manufactured by the assessee-appellant. Since the fact, that the amount of premium, claimed by the assessee-appellant, as having been received from pre mium on import licence, is not in dispute, it is evident that this sum of Rs. 1, 20,25,812/- ought to have been treated as an income falling under Section 28 (ii i a) and chargeable to income tax under the head ’profits and gains derived from business’ and the same ought to have been treated as an income derived from sa le of tea grown and manufactured by the assessee-appellant. 21. Similarly, as regards the sum of Rs. 6,69,740/-, which was claimed by th e assessee-appellant as receipt from excise duty, it ought to be appreciated tha t since this amount, indisputably, relates to excise duty rebate, the same was c omposite income under Section 28 (iii c) inasmuch as Section 28 (iii c) clearly lays down that any duty of customs or excise, re-paid or re-payable as drawback to any person against exports under the Customs and Central Excise Duties Drawba ck Rules, 1971, is chargeable under the Income Tax Act under the head of ’profit s and gains derived from business’ and, thus, the excise duty rebate, in the pre sent case, was a part of the composite income before apportionment thereof under Rule 8 of the Rules. 22. Turning to the sum of Rs. 2,12,218/-, claimed by the assessee-appellant as receipt from sale of scraps, it needs to be appreciated that sale of scraps, generated in a tea estate in the process of growing and manufacturing of tea, is , indisputably, an ancillary part of the business of growing and manufacturing o f tea and, hence, the same form part of the composite income of the appellant as an assessee. More so, when the appellant, as an assessee, had made it clear th at the receipt of Rs. 2,12,218/- was on account of sale of scraps, realize d from regular sale of unused or unusuable goods of the tea estate, which were p rocured from time to time in course of running of the business of growing and ma nufacturing of tea and that the expenses, incurred from such items, formed compo site income before apportionment thereof under Rule 8. 23. Neither, therefore, the receipts of premium on import of licence, amount ing to Rs. 1,20,25,812/-, nor the receipt, amounting to Rs. 2,12,218/-, realized from the sale of scraps, could have been refused to be treated as composite inc ome of the assessee-appellant before apportionment thereof in terms of Rule 8 of the Rules. 24. Turning to the assessee-appellant’s claim of miscellaneous garden income , amounting to Rs. 1,44,32,310/-, arising out of the amount received from insura nce claim, lodged with the insurer on account of loss caused to the business of tea, finished plantation, etc., due to flood and heavy rains, it is noteworthy t hat the amount paid, in terms of the insurance claims, in the circumstances as i ndicated hereinbefore, and in respect of the items, as mentioned hereinbefore, o ught to be treated as part of the composite income of the assessee-appellant bef ore apportionment thereof under Rule 8. 25. What surfaces from the above discussion that that the assessee-appellant ’s claim for the sum of Rs. 1,20,25,812/- as receipt from Premium on import lice nce, Rs. 2,12,218/-, as receipt from Sale of Scrap, Rs. 1,44,32,310 as the amoun t receipt from Misc. Garden Income and Rs. 6,69,740/- as receipt from Excise dut y, were but the income derived from the business of tea, or from the activities of growing, manufacturing and selling of tea and these receipts ought to have be en treated as composite income of the assessee-appellant before apportionment th ereof in terms of Rule 8. 25. There can be no dispute that the expression, ’income derived from’, is n arrower than the expression, ’income attributable to’. In the case at hand, how ever, when statutory provisions have been made in the form of Clause (iii a) and Clause (iii c) of Section 28 of the Act, one can have no escape from the conclu sion that as and when an income shall be chargeable to income tax under the head s of profits and gains derived of business, it would be wholly impermissible for the Assessing Officer to treat the income, which fell within the ambit of Claus e (iii a) and Clause (iii c) of Section 28 of the Act, as income, which was not composite income. The learned appellate Commissioner and the learned Tribunal co mmitted serious error in ignoring the statutory provisions of Clauses (iii a) an d (iii c) of Section 28. 27. Having considered the rival submissions, made on behalf of the parties c oncerned, and having perused the materials placed on record before us, we notice that none of the three orders, namely, order of assessment, dated 29.12.2006, p assed by the learned Assessing Officer, the appellate order, dated 14.02.2008, p assed by the learned Commissioner, Income Tax (Appeal), Guwahati, and, eventuall y, the impugned order, dated 16.11.2010, passed by the learned Tribunal, dispute d the amount of money claimed as amount received from Premium on import licence, Sale of Scrap, Misc. Garden Income, and Excise duty, etc. What has been in d ispute is the claim of the assessee-appellant that the said receipts ought to be treated as composite income, before apportionment thereof, under Rule 8 of the Rules. 28. Considering the fact that the receipts, which the assessee-appellant cla imed as composite income before apportionment thereof in terms of Rule 8, had di rect nexus with the assessee-appellant’s activities of growing, manufacturing an d selling of tea, it was not open to the authority concerned to treat such incom e as an income, which could not have been described as income derived from the b usiness of growing, manufacturing and selling of tea by the assessee-appellant. 29. Situated thus, we are clearly of the view that the refusal to treat the total sum of Rs. 2,73,40,080/- as composite income of the assessee-appellant, be fore apportionment thereof, under Rule 8, was wholly illegal and cannot be susta ined. 30. In the result and for the reasons discussed above, this appeal succeeds. The impugned order, dated 16.11.2010, passed by the learned Tribunal, is hereb y set aside and quashed and, in consequence thereof, the assessment order, dated 29.12.2006, as well as the order, dated 14.02.2008, passed by the learned Commi ssioner, Income Tax (Appeal) II, Guwahati, shall accordingly stand set aside and quashed. The respondents are hereby directed to treat the receipts of Premium on import licence, amounting to Rs. 1,20,25,812/-, Sale of Scrap, amounting to R s. 2,12,218/-, Misc. Garden Income amounting to Rs. 1,44,32,310, and Excise dut y amounting to Rs. 6,69,740/-, as the assessee-appellant’s composite income befo re apportionment thereof in terms of Rule 8 of the Rules. 31. With the above observations and directions, this appeal shall stand disp osed of. 32. No order as to costs. "