Kapur, J. - (1.) The appellant is a Bank registered under the Co-operative Societies Act, 1912 (Act II of 1912) and is deemed to be registered under the Bihar and Orissa Co-operative Societies Act. 1935 (Bihar Act VI of 1935) which in Bihar has replaced the Co-operative Societies Act of 1912. It was carrying on banking business on the State o Bihar. One of the objects of the Bank is to carry on general business of banking not repugnant to the provisions of the Bihar Act and rules framed thereunder for the time being in force (Bye-Law 3(a) vi). In the calendar years 1945, 1946 and 1947, the appellant Bank received by way of interest on deposits with the Imperial Bank of India the sums of Rs. 7,192, Rs. 20,250 and Rs. 22,600 respectively. It is these sums which are the subject matter of dispute in these three appeals which relate to the respective assessment years 1946-47, 1947-48 and 1948-49. These sums were not assessed when assessment was made under S. 23(3) of the Income-tax Act, but subsequently under S. 34 they were assessed as being income' under the head 'other sources'. This order was upheld by the Appellate Assistant Commissioner and by the Income-tax Appellate Tribunal. A case was then stated to the High Court under S. 66(1) of the Act, but was decided against the appellant. The appellant brought three appeals in this Court in regard to the three assessment years. In each one of them the respondent is the Commissioner of Income-tax, Bihar and Orissa. As the appeals involve a common question of law they were consolidated and can conveniently be disposed of by one judgment.
(2.) In its return the appellant showed these various sums as 'other sources', but nothing turns on the manner in which the appellant chose to show this income in its return. The Income-tax Officer, however, assessed the interest for these three years under S. 12 of the Income Tax Act, as income from 'other sources'. The appellant took an appeal to the Appellate Assistant Commissioner where it was contended that as the business of the appellant Bank consisted of lending money and the deposits had been made not for the purpose of investment but for that business and thereby fulfilling the purpose for which the Co-operative Bank was constituted these various sums of interest were not subject to income-tax because of the Notification issued by the Central Government under S. 60 of the Income Tax Act. The relevant portion of that Notification C.B.R. Notification No. 35 dated October 20. 1934, and No. 33 dated August 18, 1945. was: "The following classes of income shall be exempt from the tax payable under the said Act but shall be taken into account in determining the total income of an assessee for the purpose of the said Act: ********** 2. The profits of any Co-operative Society other than the Sanikatta Salt Owners' Society in the Bombay Presidency for the time being registered under the Co-operative Society Act, 1912 (Act II of 1912), the Bombay Act VII of 1925), or the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932), or the dividends or other payments received by the members of any such Society out of such profits. Explanation-For this purpose the profits of a Co-operative Society shall not be deemed to include any income, profits or gains from: (1) Investment in (a) securities of the nature referred to in S. 8 of the Indian Income Tax Act:or (b) property of the nature referred to in S. 9 of that Act ; (2) dividends, or (3) the 'other sources referred to in S.12 of the Indian Income Tax Act". The Appellate Assistant Commissioner, however, repelled the contention of the appellant. He held that the business of the appellant consisted of 'lending money' and selling agricultural and other products to its constituents' which could be planned ahead and required no provision for extraordinary claims. He remarked that it appeared from the balance-sheets that in the accounting year 1945 the Bank invested Rs. 13, 50,000 as fixed deposits, which in the following year was raised to Rs. 15,00,000 and it was only in the accounting year 1947 that the fixed deposits 'were realised on maturity with interest'. He was also of the opinion that the length of the period during which this money was kept looked in this way' showed clearly that 'not the exigencies of pressing necessities, but the motives of investment of surplus fund had actuated the deposits' . He therefore held that the fixed deposits with the Imperial Bank were held as an investment quite a part from the business of the appellant and the interest from these deposits was not exempt from income-tax. He further held that the exemption as to the profit of a Co-operative Society extended to its sphere of co-operative activities and therefore interest from investments was no part of the appellants business profits exempt from taxation. Against this order an appeal was taken to the Income-tax Appellate Tribunal and it was there contended that the Bank did not make the deposits as investments, but in order that cash might be available to the appellant 'continuously' for the carrying on of the purposes of its business, and that the deposits were intimately connected with the business of the appellant and therefore the interest should have been held to be profits arising from the business activities of the Bank, and that the finding that the short-term deposits in the Imperial Bank were separate from the appellant's banking business was erroneous. The Income-tax Appellate Tribunal, by its order dated April 11, 1955, held: "(1) That the interest was an income rightly to be included under the head of 'other sources'. ********** 2. The profits of a Co-operative Society indicates the profit derived from the business which can be truly called the business of the Co-operative Society. Investments by the society either in securities or in shares or in bank fixed deposits are made out of surplus funds. The interest or dividend derived from such investment cannot be regarded as part of the profits of the business (sic) qua such bank and therefore, it is not exempt from income-tax (Vide Hoshiarpur Central Co-operative Bank vs. Commissioner of Income-tax, 1953-24 ITR 346, 350" Against this order a case was stated at the instance of the appellant under S. 66(1) of the Act, and the following two questions of law were referred for the opinion of the High Court: 1. Whether, in the facts and circumstances of this case, the receipt of interest on fixed deposits was an income under the head of 'other sources' ; and 2. Whether in the facts and circumstances of this case, the receipt of interest from the fixed deposits was an income not exempt from taxation under the C. B. R. Notification No. 35 dated 20th October, 1934 and No. 33 dated the 18th August, 1945.
(3.) In the High Court the appellant's contention was that the fixed deposits were made with the Imperial Bank of India not with the idea of making investments, but for the reason that cash should be available to the appellant as and when it was needed for the purposes of its business. It was also contended that the deposits were short-term deposits and that the Bank could not carry on its business without such short-term deposits. In other words, the contention was that making deposits with the Imperial bank was intimately connected with the business activities of the appellant Bank and that the interest received on the deposits was profit attributable to its business activities. But the High Court did not accept this contention. It held that if the income derived by a Co-operative Society as such, it fell within the exemption, but if it arose out of the business with third parties as in the case of investment of surplus assets, the exemption was inapplicable because the investment of fluid assets was not a part of the business of the Co-operative Bank and the reason for the Notification was to exempt profits accruing to a Co-operative Society from 'carrying on business of a mutual co-operative society and upon the ground that a man cannot make profit or loss out of himself'.;