| Content Provider | Supreme Court of India |
|---|---|
| e-ISSN | 30484839 |
| Language | English |
| Access Restriction | NDLI |
| Subject Keyword | Income Tax Act 1961: s.40(a)(iib) |
| Content Type | Text |
| Resource Type | Law Judgement |
| Jurisdiction | India |
| Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 |
| Case Type | Appeal |
| Court | Supreme Court of India |
| Disposal Nature | Appeal Disposed Off |
| Headnote | Income Tax Act, 1961: s.40(a)(iib) – Purpose of amendment of Income Tax Act by Act 17 of 2013, by which s.40(a)(iib)(A), (B) is inserted – Held: The said amendment is made to plug the possible diversion or shifting of profits from state owned undertakings into State’s treasury – In view of s.40(a)(iib) of the Act any amount, which is levied exclusively on the State owned undertaking (KSBC in the instant case), cannot be claimed as a deduction in the books of State owned undertaking, thus same is liable to income tax – It is fairly well settled that the interpretation is to be in the manner which will subserve and promote the object and intention behind the legislation – If it is not interpreted in the manner as aforesaid it would defeat the very intention of the legislation – To defeat the said provision, the State Governments may issue licences to more than one State owned undertakings and may ultimately say it is not an exclusive undertaking and therefore s.40(a)(iib) is not attracted – Abkari Act, 1902 – Constitution of India – Art.289. Income Tax Act, 1961: s.40(a)(iib) – Gallonage fee, licence fee and shop rental (kist) with respect to FL-9 and FL-1 licences squarely fall within the purview of s.40(a)(iib) of the Act . Income Tax Act, 1961: s.40(a)(iib) – ‘fee’ or ‘charge’ as mentioned in s.40(a)(iib) – Held: It will take in only ‘fee’ or ‘charge’ as mentioned therein or any fee or charge by whatever name called, but cannot cover tax or surcharge on tax – Surcharge on sales tax is nothing but an increase of the basic sales tax levied under s.5(1) of the KGST Act, as such the surcharge is nothing but a sales tax – It is nothing but the enhancement of the tax – It falls outside the purview of s.40(a)(iib)(A) and s.40(a)(iib) (B) of the Act – Same reason shall apply to the turnover tax also – As such turnover tax is also outside the purview of s.40(a)(iib)(A) and s.40(a)(iib)(B) of the Act. Income Tax Act, 1961: s.40(a)(i), 40(a)(ia), 40(a)(iib), 40(a)(ic) – Wherever the Parliament intended to cover the tax, it specifically mentioned as a tax – s.40(a)(i) and s.40(a)(ia) specifically relate to tax related items – s.40(a)(ic) refers to a sum paid on account of fringe benefit tax – At the same time, s.40(a)(iib) refers to royalty, licence fee, service fee, privilege fee or any other fee or charge – If these words are considered to include a tax or surcharge like sales tax, the distinction so carefully spelt out in s.40 between a tax and a fee will be obliterated and rendered meaningless – It is settled principle of interpretation that where the same Statute, uses different terms and expressions, then it is clear that Legislature is referring to distinct and different things. |
| Judge | Hon'ble Mr. Justice R.Subhash Reddy |
| Neutral Citation | 2022 INSC 4 |
| Petitioner | Kerala State Beverages Manufacturing & Marketing Corporation Ltd. |
| Respondent | The Assistant Commissioner Of Income Tax Circle 1(1) |
| SCR | [2022] 1 S.C.R. 105 |
| Judgement Date | 2022-01-03 |
| Case Number | 11 |
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