COMMISSIONER OF INCOME-TAX VS JOHN PETER, 2002 PTD-MADRAS-HIGH-COURT-INDIA 2065 (1998)

(a) Income-tax---

----Previous year---Option to choose previous year---Person receiving salary can exercise option---Tangible reason should exist for choosing previous year than financial year---Making up of account-- meaning of---Income Tax Act, 1961, S.3(1)(a), (b) (Before amendment by Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1989).

(b) Interpretation of Statutes---

----Meaning of words.

(c) Words and Phrases---

--- Making of an account" ---Meaning of.

Section 3 of the Income Tax Act, 1961, as it stood prior to its substitution by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989, provided an option to the assessee to choose a previous year different from the financial year, if his accounts were made up to a date within the financial year.

The Shorter Oxford English Dictionary ascribes the meaning to the terms "making up of an account" as "to set out the items of (an account), in order to add up and balance (an account). In the absence of any definition of the words "making up of an account" in the Income Tax Act, 1961, it is open to find out the meaning of the words used with reference to the, dictionary, keeping in view the purposes of the Income -tax Act.

In the case of a salaried employee, the figures which the assessee is required to have record of are merely the actual amount of salary paid to him by the employer. It is for him to choose the period for which he will maintain that record and he can also indicate his option with regard to the previous year for the purpose of section 3(1)(b). The accounts referred to in section 3(1)(b) are the accounts with reference to which the taxable income of the assessee can be ascertained. In the case of a salaried employee, apart from making a record of the income by way of salary, no other entry is required to be made for the purpose of ascertaining the taxable income. Any deduction to which the assessee is entitled can be claimed in the return and it need not be a part of the account maintained by him. The filing of a statement alongwith the return setting out the salary received during the relevant previous year by the assessee, therefore, capable of being regarded as amounting to the "making up of an account" for the purpose of section 3(1)(b). Ordinarily, there should be some tangible reason for choosing a period other than the financial year as the previous year.

For the assessment years 1976-77, 1977-78 and 1978-79, the previous year of the employer ended on July 31, and the employee had considered it convenient to adopt that date as the closing period 'of the previous year. As the payments made, deductions effected, certificates required to be given with regard to deductions could have been made, effected or given by the employer on the basis of the employer's previous year it was a matter of convenience for the employee to adopt the same previous year:

Held, that the Tribunal was right in holding that the statement filed alongwith the return was sufficient to show that the assessee had made up his accounts within the financial year in order to have a different previous year within the meaning of section 3(1)(b) for the assessment years 1976-77, 1977-78 and 1978-79. The only account which the assessee was required to maintain was the record of the amounts received as salary for the previous year.

Bhailal Tribhovandas & Co. v. CIT (1968) 68 ITR 136 (Guj.) and Additional CIT v. K. Ramachandra Rao (1981) 127 ITR 414 (AP) ref.

C.V. Rajan for the Commissioner.

P.P.S. Janarthana Raja for the Assessee.

JUDGMENT

R. JAYASIMHA, BABU, J.---The assessee was a salaried employee of a company and the accounting year ended on July 31, for each year. The assessee's only income was the salary. He was assessed to tax on the salary by treating his previous year as the same as the previous year of his employer. He was so taxed for the assessment years 1976-77, 1977-78 and 1978-79. The Assessing Officer subsequently reopened the assessment on the ground that as the assessee had only salary income his previous year could only be the financial year under section 3(1)(a) of the Income Tax Act, 1961, as section 3(1)(b) of the Act as it then stood had no application to the assessee. It may be mentioned that for the assessment year 1976-77, originally, the assessee had not been subjected to tax as he was not in employment for the period up to November 30, 1975.

The appeal by the assessee before the Appellate Assistant Commissioner was unsuccessful. The Tribunal on further appeal held that the income-tax Officer was in error in denying the benefit of section 3(1)(b) of the Act to the assessee. Before the Tribunal elaborate arguments had been advanced and -the Bench which finally heard the appeal was unable to reach an unanimous verdict. The Accountant Member held that the assessee is disentitled to the benefit of section 3(1)(b) of the Act, while the Judicial Member held otherwise. The third Member agreed with the Judicial Member.

Sections 3(1)(a) and 3(1)(b) of the Act as they stood prior to the substitution of new section 3 of the Act with effect from April 1, 1989, 'reads as below:

"3. Previous year defined.-(1) For the purposes of this Act, `previous year' means-

(a) the financial year immediately preceding the assessment year; or

(b) if the accounts of the assessee have been made up to a date within the said financial year, then, at the option of the assessee, the twelve months ending on such date;."

This section provides an option to the assessee to choose the previous year different from the financial year, if his accounts are made up to a date within the financial year. The question that was debated before the Tribunal was as to whether a salaried employee could at all make up his accounts so as to be eligible for exercising the option made available by section 3(1)(b) of the Act.

The Shorter Oxford English Dictionary ascribes the following meaning to the term "making up of an account". It is defined as " ....to set out the items of (an account): in order to add up and balance (an account)". In the absence of any definition of the words "making up of an account" in the Act, it is open to find out the meaning of the words used with reference to the dictionary, keeping in view the purpose of the Act.

In order to make up an account, it is not necessary that the accounts must be complex requiring the balancing of items of expenditure against the items of income, as the mere listing up of all the relevant data would also be a part of maintaining of an account. Where the figures are merely required to be listed and added up the period for which that exercise is undertaken will be the period for which the account can be said to be made up.

In the case of a salaried employee, the figures which the assessee is required to have record of are merely the actual amount of salary paid to him by the employer. It is for him to choose the period for which he will maintain that record and that by choice of period he can also indicate his option with regard to the previous year for the purpose of section 3(1)(b). Ordinarily, there should be some tangible reason for choosing a period other than the financial year as the previous year. In this case, the previous year of the employer ended on July 31, and the employee had considered it convenient to adopt that date as the closing period of the previous year. As the payments made, deductions effected, certificates required to be given with regard to deductions could have been made, effected or given by the employer on the basis of the employer's previous year it was a matter of convenience for the employee to adopt the same previous year.

The filing of a statement alongwith the return setting out the salary received during the relevant previous year by the assessee, therefore, is capable of being regarded as amounting to making up of an account for the purpose of section 3(1)(b) of the Act. As noticed earlier, the only account which the assessee was required to maintain was the record of the amounts received as salary for the previous year.

A Division Bench of the Gujarat High Court in the .case. of Bhailal Tribbovandas & Co. v. CIT (1968) 68 ITR 136, while dealing with a case of an assessee who had carried on business held that making up of accounts means ascertaining the profit or loss of a particular period and the mere closing of ledgers at the end of a year and carrying forward balances of the year to the beginning of the next year would not amount to making up of accounts. The accounts referred to in section 3(1)(b) of the Act are the accounts with reference to which the taxable income of the assessee can be ascertained. The mere closing of ledgers and carrying forward the balances of the year to a. later year without balancing the income and expenditure in the case of an assessee who carries on a business would not serve the purpose. In the case of a salaried employee, however, apart from making a record of the income by way of salary, no other entry is required to be made for the purpose of ascertaining the taxable income. Any deduction to which the assessee is entitled can be claimed in the return and it need not be a part of the account maintained by him. A Division Bench of the Andhra Pradesh High Court in Addl. CIT v. K. Ramachandra Rao (1981) 127 ITR 414, has held that in the case of an Advocate elevated to the Bench before the closure of the financial year the assessee was entitled to a separate previous year in respect of his salary as a judge and that the making up of all the accounts by the assessee is material in fixing, a crucial date for the individual source of income. In that case also, the assessee had claimed that he had maintained separate accounts in respect of his salary income as a judge and made up his accounts for the previous year ending on July 31, 1969, and therefore that income should be assessed in the assessment year 1970-71 and not 1969-70. That claim of the assessee was upheld by that Court.

We, therefore, answer the question referred to us in favour of the assessee and against the Revenue. The assessee shall be entitled to costs in a sum of Rs.1,500 (Rupees one thousand and five hundred only).

M.B.A./802/FCReference answered.