MOOKERJEE, J. - (1.) : This is a reference under s. 66(1) of the Indian IT Act as amended by s. 92 of the Amending Act VII of 1939.
(2.) THE question raised in this reference falls to be decided on the interpretation of sub-cl. (a) of cl. 1 of Part II of the India and Burma (Income-tax Relief) Order, 1936. The Burma Oil Co., Ltd., is a company incorporated in England having business concern in Burma and a part of the business is transacted in India. The extent and value of business in respect of the asst. yr. 1937-38 in Burma, India and the United Kingdom will appear from the following agreed statements : The assessee-company claimed triple income-tax relief under the second part of sub- clause (b) of cl. 1 of Part II of the India and Burma (Income-tax Relief) Order, 1936, in respect of the asst. yr. 1937-38. The triple income-tax relief claimed was in respect of Rs. 2,37,81,974. This amount, from the admitted figures, was subject to taxation in all the three countries. Under sub-cl. (b) of cl. 1 relief was granted on the amount claimed as stated above.
(3.) SUBSEQUENTLY, the assessee has claimed relief under sub-cl. (a) of cl. 1 of Part II of the 1936 Order in respect of double income-tax on the difference between business income as assessed in Burma and in India, i.e., Rs. 2,45,18,918 less Rs. 2,37,81,974, i.e., on Rs. 7,36,944. According to the ITO and the AAC, the assessee was not entitled to the relief under sub-cl. (a) as this was a case in which sub-cl. (b) was applicable and had been given effect to or, in other words, the view expressed was that the two sub-clauses were mutually exclusive. On an appeal by the assessee, the Tribunal allowed the relief as claimed by the assessee. Hence this reference on behalf of the CIT, Calcutta.;