S.C.Sen, J. - (1.) The Tribunal has referred the following question of law to this court under Section 256(1) of the Income-lax Act, 1961 ("the Act"), read with Section 18 of the Companies (Profits ) Surtax Act, 1964 ( " the Surtax Act " ) : "Whether, on the facts and in the circumstances of the case, the Tribunal wus correct in holding that whether the deposit under the Companies Deposits (Surcharge on Income-tax) Scheme, 1976, has to be considered as a payment of surcharge within the meaning of Rule 2(i) of the First Schedule to the Surtax Act is a debatable issue and in that view cancelling the order passed under Section 13 of the Surtax Act"
(2.) The assessment year involved is 1977-78. The facts, as found by the Tribunal, are as under : " The facts, in brief, are that the Surtax Officer, by his order dated January 20, 1979, determined the net chargeable profit under Section 6(2) of the Act at a sum of Rs. 16,65,219 and determined the surtax payable by the assessee-company for the assessment year 1977-78 at a sum of Rs. 6,49,272. In computing the aforesaid net chargeable profit, the Surtax Officer deducted the income-tax payable by the company at a sum of Rs. 30,04,069. In the corresponding income-tax assessment order for the relevant assessment year, the aforesaid tax payable by the asses see-company was determined after deducting Rs. 1,49,459 being the deposit made by the assessee with the Industrial Development Bank of India in lieu of surcharge payable in accordance with the provisions of the Companies Deposits ( Surcharge on Income-tax ) Scheme, 1976. The surcharge payable by the company was Rs. 1,50,168 out of which the deposits made with the Industrial Development Bank of India (IDBI) amounting to Rs. 1,49,495 were deducted leaving the net surcharge payable by the company at a sum of Rs. 709. The Surtax Officer subsequently rectified the original surtax order dated January 20, 1979, by his order under Section 13(1) and allowed deduction of the aforesaid deposit amounting to Rs. 1,49,495 from the chargeable profits as computed in the original assessment and recomputed the net chargeable profit for the assessment year 1977-78 at a sum of Rs. 15,15,760. Thereafter, the Surtax Officer issued another notice dated June 5, 1981, for rectification of the assessment under Section 13(1) of the Companies ( Profits) Surtax Act. In the said notice, however, no reasoning was given as to why the Surtax Officer proposed rectification of the assessment. The assessee-company, vide its letter dated June 16, 1981, requested the Surtax Officer to slate the reasons for the proposed rectification of the assessment. It was, however, requested that the assessment should be revised on the basis of the Tribunal's order in STA No. 16 (Cal.) of 1980, dated May 16, 1981. Subsequently, by two separate orders dated November 5, 1981, both the income-tax and the surtax assessment orders were revised on the basis of the Tribunal's orders dated March 13, 1980, relating to the income-tax assessment, and order dated May 15, 1981, pertaining to the surtax assessment for the assessment year 1977-78. In revising the surtax assessment, the amount deposited with the Industrial Development Bank of India amounting to Rs. 1,49,495 which was allowed by the Surtax Officer in his order dated March 7, 1979, was withdrawn. The net chargeable profit was computed at a sum of Rs. 15,56,030 as against the net chargeable profit of Rs. 15,15,760 as computed by the Surtax Officer in his order under Section 13(1) dated March 7, 1979. The impugned order dated November 5, 1981, is now the subject-matter of appeal before us. The Commissioner of Income-tax (Appeals ) held that the Surtax Officer was fully justified in not allowing deduction in respect of the sum deposited by the assessee-company with the Industrial Development Bank of India inasmuch as the said deposit was not the surcharge payable by the company. The Commissioner of Income-tax (Appeals), in this regard, referred to the Tribunal's decision in the case of Shalimar Paints Ltd. (STA No. 21 (Cal.) of 1980, dated July 24, 1980 )."
(3.) There was a further appeal to the Tribunal and it was contended on behalf of the assessee as follows : "... It was argued that two different officers passed orders of rectification dated March 7, 1979, and the impugned order under Section 15, dated November 5, 1981. It was pointed out that the assessee was not given any opportunity before the impugned order of rectification dated November 5, 1981, was passed by the Surtax Officer. During the course of hearing before the Tribunal, the assessee's learned counsel pointed out that, before the Commissioner of Income-tax (Appeals), the assessee furnished a copy of the Tribunal's order in the case of Daulatram Dharambir Auto (P.) Ltd. (STA No. 17 (Delhi) of 1979), wherein it was held that, in computing the chargeable profits under Rule 2(i) of the First Schedule to the Companies (Profits) Surtax Act, 1964, deduction was to be made in respect of income-tax including surtax paid in the form of deposits under the Companies Deposits (Surcharge on Income-tax) Scheme, 1976. It was the assessee's case before the Tribunal that since the Surtax Officer was in doubt whether deposit in lieu of surcharge was to be deducted in computing the chargeable profits for the assessment year under consideration, as also the fact that the Delhi Bench of the Tribunal was of the view that the surtax paid in the form of deposits was to be deducted in computing the chargeable profits under Rule 1 (i), it was clear that the matter fell beyond the scope of Section 13 of the Companies (Profits) Surtax Act, 1964. The assessee's learned counsel, in support of the contention raised before the Tribunal, relied on the Supreme Court decision in the case of T. S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50. On behalf of the Department, it was pointed out that the Surtax Officer revised the assessment on two counts, firstly, in pursuance of the Tribunal's order dated May 15, 1.981, in STA No. 19 (Cal.) of 1980 and, secondly, he recomputed the chargeable profit for the assessment year under consideration by taking note of the revised total income on the basis of the Tribunal's order in the income-tax assessment dated March 13, 1980. It was argued that the Surtax Officer, in giving effect to the Tribunal's order, had to take note of the correct amount of surcharge that was actually paid by the assessee-company. It was further stated that the surcharge payable by the assessee-company was Rs. 1,49,825 and, after deducting the deposit made to the extent of Rs. 1,49,495, the actual surcharge paid by the assessee-company was Rs. 330. The Surtax Officer, according to the Departmental representative, had no option in allowing deduction of the amount deposited under the Companies Deposits (Surcharge on Income-tax ) Scheme, 1976.";