Sabyasachi Mukharji, J. - (1.) In this reference under Section 256(1) of the I.T. Act, 1961, the following question has been referred to this court: "Whether, on the facts and in the circumstances of the case and on a correct interpretation of Section 2(9) of the Companies (Profits) Surtax Act, 1964, the Tribunal was correct in holding that the assessee was a company liable to be assessed to tax on its profits under the provisions of the said Act?"
(2.) The assessee is a non-resident shipping company incorporated in Sweden. For the assessment years 1965-66 and 1966-67, the ITO had assessed the assessee-company on its profits under the Surtax Act. In appeals before the AAC, the validity of the assessments was challenged on the only ground that the provisions of the Surtax Act, 1964, had no application to non-resident companies, of which the assessee-company was one. The AAC disposed of both the appeals by his consolidated order. He held that the assessee-company was a company within the meaning of the I.T. Act, 1961, and that by force of Section 2(9) of the C. (P.) S. T. Act, 1964, the provisions of the I.T. Act applied to an assessee which was a company within the meaning of the I.T. Act. He further held that the above inference was reinforced by the provisions of Clauses 1(x) and 2(ii) of the First Schedule to the Surtax Act.
(3.) Being aggrieved by the decision of the AAC, the assessee-company preferred further appeals before the Tribunal. Before the Tribunal, it was contended, inter alia, that the "Agreement for Avoidance of Double Taxation between India and Sweden" did not provide for the levy of surtax under the Surtax Act upon a Swedish company on its profits attributable to its operations carried on in India and that in the absence of such a provision in the said agreement no surtax could be levied under the C. (P.) S. T. Act, 1964, upon a Swedish company. For the reasons mentioned in its order, the Tribunal rejected this contention. This contention was not pressed before us either.;