Full Judgment Text
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PETITIONER:
THE COMMISSIONER OF INCOME-TAX,MYSORETRAVANCORE-COCHIN AND C
Vs.
RESPONDENT:
THE INDO MERCANTILE BANK, LIMITED(and connected appeal)
DATE OF JUDGMENT:
23/02/1959
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
CITATION:
1959 AIR 713 1959 SCR Supl. (2) 256
CITATOR INFO :
R 1960 SC1175 (9)
APL 1962 SC1272 (4)
F 1965 SC1358 (18)
F 1967 SC 415 (7,8)
RF 1972 SC1004 (82)
RF 1975 SC1758 (18)
R 1979 SC 117 (8)
R 1985 SC 582 (32)
RF 1989 SC1737 (7)
RF 1992 SC 1 (75)
ACT:
Income Tax-Business Loss-Set off-Profits made in Travancore
State-Losses incurred outside the State-Scope of the Proviso
to the main enactment-Travancore Income-tax Act, 1121
(Travancore XXIII of 1121), ss. 4, 9, 13, 18, 32(1), first
proviso-lndian Income-tax Act, 1922 (XI of 1922), ss. 3, 4,
6, 10, 14, 24(1), first proviso.
HEADNOTE:
Section 32(1) of the Travancore Income-tax Act, which
corresponds to S. 24(1) of the Indian Income-tax Act, 1922,
provided : " Where any assessee sustains a loss of profits
or gains in any year under any of the heads mentioned in
Section 9 [s. 6 of the Indian Act he shall be entitled to
have the amount of loss set off against this income, profits
or gains under any other head in that year :
Provided that where the loss sustained is a loss of profits
or gains which would but for the loss have accrued or arisen
within British India or in an Indian State and would under
the provisions of clause (c) of sub-section (2) of Section
18 corresponding to s. 14 Of the Indian Act] have been
exempted from tax, such loss shall not be set off except
against profits or gains accruing or arising within British
India or in an Indian State and exempt from tax under the
said provisions ".
The assessees were companies having their head offices in
the erstwhile State of Cochin with branches in the erstwhile
State of Travancore and in other places outside the latter
State. They made profits in Travancore State but incurred
losses in Cochin State and other places, and for the
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purposes of assessment to income-tax they sought to deduct
this loss from the profits made in Travancore State. The
Income-tax Officer acting under the provisions of the
Travancore Income-tax Act, determined the assessable income
representing only the profits made in Travancore State and
under s. 32(1), first proviso of the Travancore Income-tax
Act which corresponds to the first proviso to s. 24(1) of
the Indian Income-tax Act, 1922 refused to allow a deduction
of the losses incurred. The assessees claimed that the
business
257
which they were carrying on was one and indivisible for the
purpose of determining the amount assessable to income-tax
and that they were entitled to a deduction of the losses
incurred outside Travancore State. The contention on behalf
of the income-tax authorities was (i) that under the first
proviso to s. 32(1) of the Travancore Income-tax Act losses
incurred in places out- I side the State of Travancore
cannot be set off against profits made in that State, (2)
that though profits and losses in the State arising under
the same head could be set off, the proviso, aforesaid,
affected not only the generality of the main enactment but
also introduced an addendum that where the profits of the
business arose in the State and the losses under the head
business were sustained outside that State, those losses
could not by virtue of the proviso be deducted from profits
made in the State,(3) that the proviso applied- only to the
bead " business in the two respective territories, as the
words used therein are where the loss sustained is a loss of
profits or gains " andthe word " income " is not
mentioned therein, and (4) that the word " business " in s.
13 of the Travancore Act corresponding to s. 10 of the
Indian Act, must mean business in Travancore State under s.
13 Of that Act and " business in British India " under the
Indian Act, because before 1939 income was not chargeable
under the two Acts, unless it was received or accrued in
Travancore State or British India, as the case may be, and
profits and gains of business in territories outside
Travancore or in an Indian State were exempted from payment
of income-tax in Travancore State or in British India, as
the case may be.
Held:(i) Under s. 24(1) of the Indian Income-tax Act,
1922 Is. 32(1) of the Travancore Income-tax Act] a set off
can be claimed only when the loss arises under one head and
the income, profits and gains against which it is sought to
be set off arises under a different head. In cases where
profits and losses arise under the same head they have to be
adjusted against each other under the provisions Of ss. 7 to
12B of the Indian Act.
Arunachalam Chettiar v. Commissioner of Income-tax, (1936)
L.R. 63 I. A. 233 and Anglo-French Textiles Co., Ltd. v.
Commissioner of Income-tax, Madras, [1953] S.C.R. 448,
relied on.
(2)The territory of a proviso is to carve out an exception
to the main enactment and exclude something which otherwise
would have been within the section; it has to operate in the
same field and if the language of the main enactment is
clear it cannot be used for the purpose of interpreting the
main enactment or to exclude by implication what the
enactment clearly says unless the words of the proviso are
such that that is its necessary effect.
Abdul jabar Butt v. State of Jammu and Kashmir, [1957]
S.C.R. 51, Ram Narain Sons Ltd. v. Assistant Commissioner of
Sales ’ [1955] 2 S.C.R. 483, Madras &
JUDGMENT:
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(1944) L.R. 71 I.A. 113
33
258
and Corporation of the City of Toronto v. Attorney-General
for Of Canada, [1946] A.C. 32, relied on.
Consequently, S. 24(1), first proviso, of the Indian Income-
tax Act, 1922 Is. 32(1), first proviso, of the Travancore
Act] bars the right of set off only where a loss in the
Indian States under one head is sought to be set off against
profits in British India under any other head, and does not
apply to profits and losses and computation thereof which
fall under s. 10 of the Indian Act, corresponding to s. 13
of the Travancore Act.
(3)The mere fact that the word " income " is not used in
the proviso does not justify the construction that the
intention of the Legislature was to restrict the right to a
set off of profits and losses arising in Indian States only
to business or to modify the mode of computation under s. 10
of the Indian Income-tax Act.
(4)The word " business,, in s. 10 of the Indian Income-tax
Act, 1922, is not confined to business in British India, in
view of the definition of " total income " and " total world
income " and chargeability of total income under s. 3, Or
the provisions Of s. 4 where in the case of a resident "
total income " includes income, profits and gains accruing
within or without British India.
&
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 259 and 260
of 1958.
Appeals by special leave from the judgment and orders dated
August 5, 1955, of the former Travancore Cochin High Court
in Income-tax Reference Appeals Nos. 6 of 1953 and 21 of
1954.
K.N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for
the appellant.
G. B. Pai and Sardar Bahadur, for the respondent in C. A.
No. 259 of 1959.
A. V. Viswanatha Sastri and Naunit Lal, for the
respondents in C. A. No. 260 of 1958.
1959. February 23. The Judgment of the Court was delivered
by
KAPUR, J.-These two appeals by special leave raise a common
question of law, and that is, whether business losses
incurred in the erstwhile State of Cochin could, under the
Income-tax Act of Travancore, be set off against the
business profits made in the erstwhile State of Travancore.
In Appeal No. 260/ 58 a further question arose whether in
the case of
259
that assessee the year ending June 30, 1949, was the
previous year for the assessment year 1950-51 with the
result that it should be assessed under the Indian Income-
tax Act of 1922. But this question was not answered by the
High Court which confined itself to answering the first
question which was common to both the appeals. The
appellant before us in both the appeals is the Commissioner
of Income-tax and the respondents are the two assessees, in
one case a Bank and the other a private limited company.
The main argument has been confined to the question of
applicability of s. 32(1) and the first proviso to that
section of the Travancore Income-tax Act (hereinafter called
the Travancore Act).
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In C. A. No. 259/58 the assessee is a public limited company
incorporated in the State of Cochin with branches in that
State as well as in what was British India and in Travancore
State. It filed its incometax return showing an income of
Rs. 11,872 for the assessment year 1948-49, its accounting
year being the previous calendar year. The Income-tax
Officer determined its assessable income to be Rs. 90,947
representing only the profit it made in Travancore State and
under s. 32(1) proviso (1) of the Travancore Act he refused
a deduction of Rs. 79,275 shown as loss from branches
situate outside the State of Travancore, in British India
and other Indian States. The assessee’s appeal to the
Income-tax Commissioner was unsuccessful but the Appellate
Tribunal held that the banking business of the assessee
being one and indivisible for the purpose of determining the
amount assessable to income-tax it was entitled to deduct
the losses incurred outside Travancore State from the
profits accruing and arising in that State. At the instance
of the Commissioner of Income-tax the following question was
referred to the High Court of Travancore-Cochin:-
Is the aforesaid sum of Rs. 79,275 a loss of the assessee
arising outside the Travancore State for purpose of the
first proviso to section 32(1) of the Travancore Income-tax
Act ? "
This question was slightly modified by the High Court
260
which after referring to several decided cases answered the
question in favour of the assessee.
In C. A. 260/58 the assessee is a private limited company
with its registered office in the former Cochin State. It
was carrying on business at its head office in Cochin State
and it also carried on business in -Travancore State. The
assessment was made under the Travancore Act and relates to
the previous year ending June 30, 1949, the assessment year
being 1950-51. The assesse made a profit in Travancore State
and incurred a loss in the State of Cochin and sought to
deduct this loss from the profit of Travancore State thus
showing a net profit of Rs. 2,643. This was not allowed by
the Income-tax Officer and on appeal this order was
confirmed by the Appellate Assistant Commissioner. The
Appellate Tribunal also did not accept the submissions of
the assessee and upheld the order of assessment. On an
application of the assessee the following question was
referred to the High Court of Travancore-Cochin:-
" Whether on the facts and in the circumstances of the case
the loss of Rs. 27,709 arising in Cochin State could be set
off against the profit of Rs. 38,998 arising in Travancore
State ? "
and was answered in favour of the assessee. The
Commissioner has come up in appeal pursuant to special leave
against both these judgments.
It may be stated that the relevant sections of the
Travancore Act which govern the two appeals are identically
worded with those of the Indian Incometax Act of 1922 (to be
called the Indian Act). The corresponding sections are as
follows:
Headings Sections in Section in
Travancore Act. Indian Act.
Application of the Act 4 4
Head of income charge-
able to income-tax 9 6
Business 13 10
Exemptions of a gene-
ral nature 18 14
Set off of loss in com-
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puting aggregate in-
come 32 24
261
It is only necessary to set out s. 32(1) of the Travancore
Act and the proviso which correspond to s. 24(1) and proviso
(i) of the Indian Act and which are necessary for the
decision of the appeals before us:
S.32(1) " Where any assessee sustains a loss of profits
or gains in any year under any of the heads mentioned in
Section 9 (Section 6) he shall be entitled to have the
amount of loss set off against this income, profits or gains
under any other head in that year:
Provided that where the loss sustained is a loss of profits
or gains which would but for the loss have accrued or arisen
within British India or in an Indian State and would under
the provisions of clause (e) of sub-section (2) of Section
18 (Section 14(2)(c) ), have been exempted from tax, such
loss shall not be set off except against profits or gains
accruing or arising within British India or in an Indian
State and exempt from tax under the said provisions ".
(Sections in brackets are the corresponding sections of the
Indian Act).
So the only difference between the two sections is that in
the proviso to s. 24(1) of the Indian Act instead of the
words "an Indian State" the words "British India or in an
Indian State " have to be substituted. The question for
decision is as to how this proviso is to be construed.
Ordinarily the effect of an excepting or a qualifying
proviso is to carve something out of the preceding enactment
or to qualify something enacted therein which but for the
proviso would be in it and such a proviso cannot be
construed as enlarging the scope of an enactment when it can
be fairly and properly construed without attributing to it
that effect. Corporation of the City of Toronto v.
Attorney-General for Canada (1). But it has been held that
a section framed as a proviso to a preceding section may
sometimes contain matter which is in substance a fresh
enactment adding and not merely qualifying that which goes
before. Rhondda Urban Council v. Taff Vale Railway (2).
It was argued on behalf of the Revenue that this
(1) [1946] A.C. 32, 37.
(2) [1909] A.C. 253, 258.
262
proviso falls in the second category and takes the present
cases out of s. 32(1) of the Travancore Act and imposes a
liability to tax on the profits or gains arising in that
State, disallowing a deduction of the losses in British
India and in States other than Travancore State against
profits made in Travancore State: Rhondda Urban Council v.
Taff Vale Railway (1) and Harrison v. Ward (2). It may be
mentioned that in the majority of cases decided in India the
proviso to s. 24(1) of the Indian Act has been construed in
a manner contrary to the submissions made on behalf of the
Revenue.
In order to determine the true meaning of the words of the
proviso it is necessary and convenient to refer to the
scheme of the Indian Act which is admitted by the parties to
be same as that of the Travancore Act. From 1922 to 1939 in
order to be taxable income, profits and gains had to be
received or had to accrue in British India. In 1939 the
idea of ’total world income’ was introduced and the
definition of ’total income’ was modified by the Indian
Income-tax (Amendment) Act (VII of 1939) which also made
consequential changes in other sections of the Indian Act.
Under s. 2(15) of the Act total income’ was defined to mean
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the total amount of income, profits and gains computed in
the manner laid down in that Act. The ’total world income’
was defined as including all income, profits and gains
wherever accruing or arising except income to which the Act
did not apply. Section 3 provided for the charge of income-
tax in respect of the total income of the previous year.
Under s. 4 the total income of any previous year of any
person who was resident included all income, profits and
gains from whatever source derived but (i) it must accrue or
arise to him during the year in British India or (ii) accrue
or arise to him without British India during such year. The
third clause is not necessary for this appeal. Section 4(3)
provided what income, profits or gains were not to be
included in the total income of the person receiving them.
Both under the Indian Act and under the Travancore Act
(1) [1909] A.C. 253, 258.
(2) [1922] 1 Ch- 517.
263
there were six heads of income chargeable to income tax. In
the Indian Act they were set out in s. 6 as follows:-
S. 6 " Save as otherwise provided by this Act the following
heads of income, profits and gains shall be chargeable to
income-tax in the manner hereinafter appearing, namely:-
(iv) Profits and gains of business, profession or vocation.
Then followed ss. 7 to 12B laying down the method of
computation of the income arising from each head.
In 1941 during the war an exemption was given for the
purpose of taxability to any income, profits or gains which
accrued or arose within what was then called Indian States
but which were not received or brought into British India.
This was done by s. 8 of the Indian Income-tax (Amendment)
Act, 1941 (XXIII of 1941) by which another clause (c) was
added to s. 14(2) which was as follows:
" The tax shall not be payable by an assessee:
(c)in respect of any income, profits or gains accruing or
arising to him within (an Indian State) unless such income,
profits or gains are received or deemed to be received in or
are brought into the Indian State in the previous year by or
on behalf of the assessee or are assessable under section
12B or section 42".
Thus income, profits or gains arising under any of the heads
under s. 6 became exempted in circumstances above-mentioned
but the effect of this exemption was not to exclude such
income of an assessee for all purposes as was the case under
s. 4(3). Such sums were to be taken,into account for the
purpose of determining the rate -under s. 16 of the Indian
Act. A further consequential change was made in, s. 24(1)
by
264
the addition of the first proviso and a similar addition was
made in the Travancore Act to s. 32(1) which has already
been quoted and it is this proviso which is the subject-
matter of controversy between the parties. A review of the
various sections and enactments shows that during 1922-1939
the tax was leviable on income, profits and gains arising or
accruing to an assessee in British India. In 1939 the total
income became taxable subject to exclusions in sub-s. 3 of
s. 4 and the chargeability of the ’total income’ was laid
down in s. 3. In 1941 income, profits or gains which a
resident made in an Indian State and in the case of
Travancore State income, profits or gains which a resident
made in British India or other Indian States were exempted
from payment of income-tax unless received or brought into
the respective territories, but this income, profits or
gains had to be included for the purpose of calculating the
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rate.
Now we come to s. 24(1). This section was introduced in
1922 before which under the Indian Act of 1918 a loss under
one head of income could not be set off against income under
another head, the taxability of income arising from each
head being separate. By the addition of this section the
loss under one head of profits or gains was allowed to be
set off against income, profits and gains under any other
bead in any assessment year. There was also a provision in
s. 24(2) for carrying over the loss after such set off had
been effected. Section 24(1) became the subject matter of
controversy in the courts. The Privy Council in Arunachalam
Chettiar v. Commissioner of Income-tax(1) held that this
section was meant for a set off of profits arising under
different heads and not where profits and losses had to be
adjusted if they arose under the same head. Sir George
Rankin said at p. 241
" In their Lordships’ opinion, whether a firm is registered
or unregistered, partnership does not obstruct or defeat the
right of a partner to an adjustment on account of his share
of loss in the firm, whether the set off be against other
profits under the same
(1) (1936) L.R. 63 I.A. 233
265
head of income within the meaning of s. 6 of the Act or
under a different head (in which case only need recourse be
had to s. 24, sub-s. 1) ".
Thus the Privy Council emphasised that the object of s.
24(1) was to allow a set off of profits against losses
arising under different heads and Only in such cases could
recourse be had to s. 24(1). In cases where profits and
losses arose under the same head they had to be adjusted
against each other. This Court in Anglo-French Textiles Co.
Ltd. v. Commissioner of Incometax, Madras (1) again
emphasised that distinction in the following words:-
" Next, a, set off under section 24(1) can only be claimed
when the loss arises under one head and the profits against
which it is sought to be set off arises under a different
head. When the two arise under the same head, of course the
loss can be deducted but that is done under section 10 and
not under section 24(1) (Per Bose, J.)
Indeed it is not disputed that when profit and loss arose
under the same head in any place which was not an Indian
State recourse had to be had to the provisions of ss. 7 to
12B and not to any other section. But it was contended on
behalf of the Revenue that the first proviso to s. 24(1) of
the Indian Act not only affected the generality of the main
enactment but also introduced an addendum that where the
profits of the business arose in what was British India in
the case of the Indian Act or what was Travancore State in
the case of the Travancore Act and the losses under the head
business were sustained in an Indian State or in the latter
case in any other Indian State or British India, these
losses could not by virtue of the proviso be deducted from
profits made in British India or Travancore State as the
case may be. They could only be adjusted against profits
arising in an Indian State or in the case of Travancore
State in British India or another Indian State. Thus the
proviso, it was contended, was a modification of the method
of computation under s. 10(2) of the Indian Act for
(1)[1953] S.C.R. 448, 453.
34
266
determining profits and gains of the business of any
resident. We should be averse to lend any countenance to
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such a mode of construing a proviso unless the language used
expressly or by necessary intendment leads to that
conclusion. The proper function of a proviso is that it
qualifies the generality of the main enactment, by providing
an exception and taking out as it were, from the main
enactment, a portion which, but for the proviso would fall
within the main enactment. Ordinarily it is foreign to the
proper function of a proviso to read it as providing
something by way of an addendum or dealing with a subject
which is foreign to the main enactment. " It is a
fundamental rule of construction that a proviso must be
considered with relation to the principal matter to which it
stands as proviso ". Therefore it is to be construed
harmoniously with the main enactment (Per Das, C. J.) in
Abdul Jabar Butt v. State of Jammu & Kashmir (1). Bhagwati,
J., in Ram Narain Sons Ltd. v. Assistant Commissioner of
Sales Tax (2) said:
" It is a cardinal rule of interpretation that a proviso to
a particular provision of a statute only embraces the field
which is covered by the main provision. It carves out an
exception to the main provision to which it has been enacted
as a proviso and to no other ".
Lord Macmillan in Madras & Southern Mahratta Railway Co. v.
Bezwada Municipality (3) laid down the sphere of a proviso
as follows :-
" The proper function of a proviso is to except and deal
with a case which would otherwise fall within the general
language of the main enactment, and its effect is confined
to that case. Where, as in the present case, the language
of the main enactment is clear and unambiguous, a proviso
can have no repercussion on the interpretation of the main
enactment, so as to exclude from it by implication what
clearly falls within its express terms ".
The territory of a proviso therefore is to carve out an
(1) [1957] S.C.R. 51. 59- (2) [1955] 2 S.C.R. 483, 493.
(3) (1944) L.R. 71 I.A. 113, 122.
267
exception to the main enactment and exclude something which
otherwise would have been within the section. It has to
operate in the same field and if the language of the main
enactment is clear it cannot be used for the purpose of
interpreting the main enactment or to exclude by implication
what the enactment clearly says unless the words of the
proviso are such that that is its necessary effect. (Vide
also Corporation of The City of Toronto v. Attorney-General
for Canada) (1).
In the proviso in dispute there are no positive words which
would support an interpretation in favour of the
disintegration of the head " business " and compel the
application of the proviso to the same head, specially
keeping in view the object of the main section, i.e. s.
24(1) which was to set off loss of profits or gains under
one head against income, profits or gains under any other
head.
It was then submitted that in the proviso the words used
were " where the loss sustained is a loss of profits or
gains " and therefore it necessarily applied to the head "
business " in the two respective territories. But in the
main enactment itself, i. e., s. 24(1) of the Indian Act the
words used are " a loss of profits or gains ". The mere fact
that the word " income " is not used does not justify the
construction. that the intention of the Legislature was to
restrict the set off of profits and losses arising in Indian
States only to business or to modify the mode of computation
under s. 10 of the Indian Act. That the use of these words
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does not circumscribe the proviso to business alone is shown
by the difference in the language of the proviso to sub_s.
(2) of s. 24 of the Indian Act:-
S. 24 (2)...................................................
" provided that
(a) where the loss sustained is a loss of profits and gains
of a business or vocation to which the first proviso to sub-
section (1) is applicable, and the profits and gains of that
business, profession or vocation are, under the provisions
of clause (c) of sub-section (2) of section 14, exempt from
tax, such loss shall not be set
(1)[1946] A.C. 32, 37.
268
off except against profits and gains accruing or arising in
(an Indian State) from the same business, profession or
vocation and exempt from tax under the said provisions ".
That proviso shows that where the Legislature wanted to
restrict the losses and profits or gains to business alone
they specifically said so. It is significant that in ss.
2(13) and (5) of the Indian Act of 1918 corresponding to ss.
2(15) and 6 of the Indian Act of 1922 the word used was"
income " which in the latter Act was expanded into " income,
profits and gains ". The Privy Council said in the
Commissioner of Income-tax, v. Shaw Wallace and Co. (1) that
,the object of the Indian Act is to tax " income " a term
which it does not define. It is expanded no doubt into "
income, profits and gains " but the expansion is more a
matter of words than of substance ". It was also so said in
Commissioner of Income-tax, Bengal v. Mercantile Bank of
India Ltd. (2). See also London County Council v. Attorney-
General (3). Thus the mere use of the words loss of profits
or gains to be, set off against profits and gains would not
be sufficient to restrict the scope of the proviso to the
profits and losses arising under the head business in the
two territories, i. e., British India and the Indian States.
On behalf of the Revenue an alternate argument was raised
for which support was sought from two decisions of the
Allahabad High Court in In Re: Mishrimal Gulabchand (4) and
Raghunath Parshad v. Commissioner of Income-tax (5). There
it was held that s. 10 of the Indian Act had to be read with
s. 14(2) (e) and if profits could not be added for the
purposes of total income’ losses sustained also could not be
deducted. Counsel for the Revenue did not go to this extent
that because profits were exempted losses could not be
deducted; his argument was that because before 1939 income
was not chargeable unless it was received or accrued in
British India therefore business in s. 10 could only mean
business in British India. But this
(1)(1932) L. R. 59 I. A. 206, 212.
(3)[1901] A.C. 26.
(2)(1936) L.R. 63 I.A. 457.
(4)[1950] 18 I.T.R. 75.
(5) [1955] 28 I.T.R. 45.
269
argument does not take note of the definition of total
income total world income’ and chargeability of total income
under s. 3 or the provisions of s. 4 where in the case of a
resident ’total income’ includes income, profits and gains
accruing within or without I British India. Therefore to
say that business in s. 10 means business in British India
or business the profits or gains of which are taxable in
British India is to ignore the definitions and ss. 3, 4 and
6. Section 10 of the Indian Act does not distinguish between
business in British India and business in an Indian State or
so divide business. But then it was said that as the
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profits or gains of business in an Indian State were
exempted from payment of tax in British India business in s.
10 must mean business in British India. That would be
straining the language of s. 10 and would necessitate
addition of words in s. 10 which are not there in the
section.
In the course of argument a number of cases of the, various
High Courts were cited and criticised. We find it
unnecessary to refer to them because we have indicated above
what is the correct sphere of a proviso and what proviso (i)
to s. 24(1) means.
In our view the question referred to the High Court which is
common to the two appeals was rightly answered in favour of
the assessee. As to the second question in Civil Appeal No.
260 of 1958 we do not propose to say anything. It will be
open to the assessee in that appeal to take such steps in
regard to that question as it may be advised.
In the result the appeals fail and are dismissed with costs.
Appeals dismissed.
270