Chakravartti, C.J.
1. Three questions have been referred in this case by the Calcutta Bench of the Income-tax Appellate Tribunal lor the decision of this Court. They arise out of the following facts.
2. The assessee, the United Commercial Bank Limited, is a banking company, said to be in a large way of business. It receives an interest income from its investments in securities, makes profit from its banking business and receives a dividend income from certain shares it holds. For the assessment year 1945-46, its net assessable income was determined at Rs. 14,95,826/- and that figure was arrived at by the usual method of computing the income derived from three different sources separately, setting off the loss under one head against the profit under another and then adding together the balance left under the different heads. Thus, the income from interest on securities was computed under Section 8 of the Act and determined at Rs. 23,62,815/-. The oronts or gains of business were computed under Section 10 and a loss of Rs. 8,86,972/- was found. A small income from other sources, including some dividend income, was computed under Section 12. The loss under the business income was then set off against the income of interest on securities under Section 24(1) of the Act and after making some further adjustments, the net assessable income was determined at Rs. 14,95,826/-, as I stated a few moments ago.
3. The assessee had no complaint to make about the amount at which the assessable income had been determined, but it objected to the method employed in arriving at that amount. The objection was that the interest on securities ought not to have been separately assessed under Section 8, but the income should have been taken to be a part of the business income and the whole of the profits or gains of business, including therein the interest income, should have been computed under Section 10 in a single operation. 'Prima facie', that objection would appear to be pointless, because if the business loss could be set off against the interest income even under the method of separate computations, as had in fact been done3 the result under a single or separate computations would be the same and, therefore, separate computation's of the interest on securities and of the business income had not deprived the assessee of any benefit to which it would be otherwise entitled. Indeed, the assessee had received certain deductions under Section 8, which it would not have been allowed if the interest income was computed under Section 10.
4. The question, however, was one of a practical importance to the assessee, because it had a business loss of Rs. 3,21,929/- carried forward from the previous year and by reason of the provisions of Section 24(2) of the Act, that loss could be set off only against 'the profits or gains of the same business' for any subsequent year. Business loss carried forward can be set off only against business income, but in the present assessment, as made by the Income-tax Officer, there was no business income against which the loss carried forward could be set off, there being only loss, while, of the interest income, a large balance had been left even after the business loss for the year had been set off against it. If the income from interest on securities could also be treated as business income, the loss carried forward could be legally set off against that balance and the assessable income of the assessee would be further reduced by Rs. 3,21,929/-, since it could wholly be absorbed. It was for this reason that the assessee found it useful to contend that the interest on securities should have been computed as a part of its business income and out of that contention, rejected by all the Income-tax authorities, has arisen the first question of law which is in the following terms :
'Whether on the facts and in the circumstances of this case, the assessee was entitled to set off the business loss of Rs. 3,21,929/- brought forward from the preceding year against this year's income from interest on securities held by the assessee.'
5. The remaining two questions do not challenge the method of assessment but involve claims for some further deductions which are said to be allowable to the assessee even on the basis that the computation of the interest income under Section 8 was rightly made. It was contended by the assessee that Since, under Section 8, the commission deducted by a banker for realising the interest on securities on behalf of the assessee was to be deducted from the interest income for purposes of assessment, it was entitled to some deduction under that head by way of administrative expenses, though actually it had collected the interest itself and had not paid any commission to anyone. That contention also was rejected by all the Income-tax authorities and out of it has arisen the second question referred which is in the following terms:
'Whether on the facts and in the circumstances of this case, the assessee was entitled under Section 8 to deduct any part of its administrative expenses out of the income from interest on securities.'
6. It was lastly contended by the assesses that it should be allowed a deduction from its interest income of not only the interest payable on borrowings which it had invested in taxable securities, but also of the interest payable on borrowings invested in securities which were tax-free. This contention also was rejected by all the Income-tax authorities and out of it has arisen the third question referred which is in the following terms : 'Whether in the circumstances of this case, the assessee was entitled under the First Proviso to Section 8 of the Income-tax Act to deduct any interest on money borrowed and utilised for investment in tax-free securities.'
7. Mr. Chaudhuri, who, appeared on behalf of the assessee, did not advance any argument before us on the second and the third questions. In fact, he conceded, without however formally abandoning the point taken by his client before the authorities below, that they were not arguable. I will therefore briefly dispose of the second and the third questions first.
8. As I have already stated, the second and the third questions do not challenge the application of Section 8, but raise certain contentions under the section itself. As to the second question, what the first proviso to Section 8 says is that 'no income-tax shall be payable in respect of any sum deducted from such interest by way of commission by a banker realizing such interest on behalf of the assessee.' ' The crudeness of that provision and the next one in the same proviso has often been commented on, but the meaning is that in computing the interest income for purposes of assessment, the amount of commission taken by a banker for its realisation shall be deducted. That provision, however, plainly does not intend that an assessee who collects the interest himself on his own behalf can charge a fee for his labours and deduct it from the gross amount of the interest received. Besides, the proviso by its language requires that the com-mission must be actually deducted and it fur-ther requires that it must be deducted by a banker realising such interest on behalf of the assessee.
It is not contended that anybody deducted any commission in the present case, nor that even the assessee deducted any commission in its own accounts. Secondly, the language of the proviso can apply only when the person, collecting the interest and deducting commission, is some person other than the assessee and when the assessee is a banker, some other banker. What the assessee claims under this head is not even commission, but administrative expenses which are wholly foreign to Section 8. In my opinion, there is no substance whatever in the contention of the assessee under the second question.
9. The assessee's contention under the third question is equally untenable and its unten-ability is equally plain. What the first proviso to Section 8 says is that in cases where the securities, from which the interest charged to tax is derived, have been acquired with money borrowed for the purpose, the assessee will be allowed to deduct the interest payable on the moneys so borrowed and invested. The reason is plain, because the interest paid on the borrowings is expenditure incurred for the purpose of earning the interest income which is charged to tax. But as regards tax-free securities, the third proviso to Section 8 exempts the interest received on such securities from tax liability altogether and there is no valid reason why an assessee, while paying no tax to the State on a particular item of income, should yet receive from the State credit for the expenditure incurred for earning that income. Section 8 does not, in my view, provide for any such credit.
I feel however bound to observe that the arrangement of the three provisos to Section 8 is not very logical and the proper order would be to place the second proviso first, the third proviso second and the first proviso last. But even under the arrangement as it is, the first proviso, which speaks of a deduction, can apply only when there is a chargeable income from which the deduction can be made and the fact that the proviso speaks of 'the securities' generally without any qualification, does not entail the result that interest payable on borrowings invested in tax-free securities shall also be deducted from the interest income received from securities. To my mind, there is no warrant in the Act for the deduction claimed and the right view, if I may say so with respect, was taken in -- 'Broach Co-operative Bank Ltd. v. Commissioner of Income-tax, Bombay', : AIR1950Bom45 (A), and the --'Commissioner of Income-tax, Madras v. Madras Provincial Co-operative Bank Ltd.' AIR 1943 Mad 152 (B). The contention of the assessee under the third question must, therefore, also be rejected.
10. The principal question is the first one, but it raises no new point. It has been raised and decided in England more than once, and at least twice in India, although on one occasion somewhat indirectly. Mr. Chaudhuri contended that although interest on securities might be separately charged under Section 8 in the hands of an assessee who merely held them and received the interest, the position in the case of a banking company which employed the securities as a part of its circulating capital, was different and that in the case of such a company, not only the profit made by the purchase and sale of securities, but also the interest received on them should be treated as a part of its business income and assessed under Section 10. Mr. Chaudhuri informed us that the securities in the present case were a part of the bank's circulating capital and his contention was that the nature of the assessee's business required that a large stock of securities should be held or thrown into the business and kept ready for easy conversion in times of need, and, therefore, the holding and the management of the securities was an integral part of the assessee's business. If so, the interest received on the securities was also business income and therefore it should not have been separately assessed under Section 8, but should have been assessed, along with other business income, under Section 10.
11. It will make for clarity if we bear in mind that the present case is not concerned with profits arising to a bank from the purchase and sale of securities. The Privy Council decision in -- 'Punjab Co-operative Bank Limited v. Commissioner of Income-tax, Lahore' , which was cited before the Tribunal was concerned with profits of that character and Mr. Chaudhuri very properly conceded before us that he could derive no assistance from that decision. The present question which concerns the interest on securities received by a banking company and where the contention is that such interest should not be assessed under Section 8 but should be assessed under Section 10 as a part of the company's business profits, is an entirely different question,
12. To my mind, the assessee's contention is not tenable. Section 6 of the Income-tax Act sets out six heads under which income should be assessed and provides that those 'heads of income, profits and gains, shall be chargeable to income-tax in the planner hereinafter appearing.' Interest on securities is a distinct category of income, forming the second head in the classification. Profits and gains of business come under the fourth head. The 'manner' of charging tax on the several distinct heads of income of which Section 6 speaks, is prescribed by subsequent sections. Section 8 deals with interest on securities and prescribes that the tax shall be payable under that head, that is, under the head 'Interest on securities' re-reivable by the assessee on certain specified kinds of securities and that the income shall be computed after allowing certain deductions for which the section provides. Business income is dealt with in Section 10 and that section provides that tax 'shall be payable under the head 'Profits and gains of business' in respect of the profits or gains of any business' carried on by the assessee. The section proceeds to provide that such profits or gains shall be computed after making certain allowances which are specified. Sources of income, not specifically covered by any of the heads in Section 6, are assigned by that section to the fifth head which is of a residuary character and described as 'income from other sources'. The manner of assessing that income is prescribed by Section 12.
The scheme of the Act, therefore, is to classify all conceivable sources of income under distinct and separate heads and to require that income, falling under a specific head, must be assessed and charged in the manner prescribed separately for that head and further to require that where the income is not attributable to anyone of the specified sources, its assessment should be under the residuary head in the manner therefor specified. The Act has no room for options. Nor does it give any liberty for re-arranging, as it were, the heads of income for the purposes of individual assessments and for assessing an item of income which the Act assigns to one head under a different head in the view that, regarded in a larger sense, it is to the latter head that the income properly belongs.
13. In my view, the heads of income set out in Section 6 of the Indian Income-tax Act are mutually exclusive and the mandate of the Act that the incomes, falling respectively under them, should be Separately computed is clear. If an amount of income is, in fact, interest on securities, then it must be computed and assessed under Section 8 alone, by whomsoever the securities may be held and in whatever manner they may be used. The fact that they may be held by a businessman or a banking company or that they may be used as trading assets and so turned over and over in the business or otherwise employed in business operations will not make the interest received on such securities income from business for purposes of tax. Mr. Chaudhuri's argument really amounted to saying that the classification made under Section 6 was not final and unalterable and that the heads of income, set put there, should not be literally construed, but if an item of income, nominally appearing to belong to one class, belonged in essence to another, then to that class it should be assigned and on that basis it should be assessed. I am unable to agree that the Indian Act allows such liberties to be taken with the heads of income set out in Section 6.
14. Of the cases cited, the decision in --'Commercial Properties Limited v. Commissioner of Income-tax, Bengal' : AIR1928Cal456 , does not exactly cover the point. There, a company formed with the object of acquiring lands, building houses and letting them out to tenants, owned just three houses and it was held that in respect of the income from those house properties, the company was liable to be assessed under Section 9 of the Act and not Section 10 on the basis that it had been carrying on business. The fact that the competing section in that case was Section 9 and not Section 8 is immaterial, but it appears to have been found as a fact that the company in that case was not carrying on business at all.
The decision, therefore, amounts to no more than holding that income from house property must be assessed under Section 9 and not under Section 10, although the owner may be a company and although the company may have been incorporated for the purpose of owning and letting out houses. The Court had no occasion to consider whether, if a company carried on business in buying or building houses and selling them and had both profits arisen from such transactions and income from house properties owned and held by it during the accounting year, the income under the latter head could be assessed under Section 10. That question did not, on the finding arrived at by the Court, call for decision, but certain observations were made as regards the scheme of the Act to which it may be useful to refer. It was said that Sections 6, 8, 9 and 10 of the Act should be so read as to give some effect to the contrast between property, securities and business and that if a particular item of income fell directly under any specific category, then its assessment under the Act should be as of income belonging to that category and under the appropriate head. But these, as I have already said., were only general observations.
15. The other case cited by Mr. Meyer is more to the point and deals with the precise point before us. It is the decision of the Madras High Court in -- 'H. C. Kothari v. Commissioner of Income-tax, Madras', : [1951]20ITR579(Mad) (E). There, the assessee had several sources of income, namely, interest on securities, profits of business and dividends, just as the assessee had in the present case. The busi-ness had ended in a loss, as here. But the assessee claimed earned relief in respect of the interest on securities on the ground that the securities which he had purchased and sold as a part of his business formed the stock-in-trade and therefore the profits arising out of such purchase and sale, including the interest on securities, should be treated as business profits. That contention was repelled and thelearned Judges observed as follows :
'Section 8 of the Act which deals with interest on securities is a separate and distincthead, and if an income is chargeable underthat head, it is not open either to theassesses or to the Department to change thebead and claim to tax it under a differentbead. * * * It is nodoubt possible that these securities may bepart of the trade assets of an assessee. Butthat circumstance does not make the interest in respect of such securities which isspecifically chargeable under Section 8, aspart of the profits of the business of theassessee.'
In taking that view, reliance was placed on the well-known decision in -- 'Fry v. Salisbury House Estate Ltd.' (1930) AC 432 (F), and the case of -- 'Thompson v. Trust and Loan Company of Canada' (1932) 1 KB 517 (G).
16. Mr. Chaudhuri realised the force of the various considerations and the weight of authority against his contention and submitted that he would not have taken the point he was taking; but for the decision of this Court in --'General Family Pension Fund v. Commissioner of Income-tax, Bengal' AIR 1946 Cal 539 (H). There, a mutual insurance company was first assessed under Rule 25 of the Rules framed under Section 59, Income-tax Act, which were then in force, i.e., on the average annual net profits disclosed by the last preceding quinquennial actuarial valuation, but upon the assessment feeing reopened under Section 34, the income from securities was assessed under Section 8 and that from certain other investments under Section 12. The company contended that it could not be assessed otherwise than under Rule 25 and the Department sought to meet that argument by contending that Rule 25 did not apply at all, inasmuch as the company had been exempted from the operation of the Indian Life Assurance Companies Act, 1912, and because Rule 25 presupposed the existence of profits, whereas the assessee company, being a mutual company, could have no profits at all. These contentions did not find favour with the Court and their Lordships held that Rule 25 did apply.
It was next contended on behalf of the Department that, in any event, Rule 25 only provided for the assessment of the income, profits and gains of a 'life assurance business', but interest on securities was not profits from business and therefore the operation of Rule 25 could not extend to such interest. This contention was also repelled by the Court which held that in the case of an insurance company, the investment of its funds in securities for the purpose of building up a reserve and the management of such investments were an integral part of its business and therefore the interest on securities and on other investments was also assessable under Rule 25 as parts of the company's life assurance business. Mr. Chaudhuri contended that, equally, in the present case, the investment of funds in securities and the management of those securities was essential to the business of the assessee which was a banking business and therefore the interest on securities should be charged and assessed as a part of the business income, as it was directed to be charged and assessed in the case of the -- 'General Family Pension Fund', (H).
17. I may point out that in the case cited, the learned Judges gave another reason which was sufficient for the disposal of the point taken by the Department. They observed that Rule 25 was a special rule enacted for the assessment of the income from life insuarnce business and not only was it a part of the Act, but by reason of the qualification contained in Section 3, the method prescribed by it would also prevail over the method prescribed by the sections in regard to the assessment of income from life insurance business. The former method, which was to take the average from the actuarial valuation, would necessarily comprise the interest on securities as well and, therefore, not only could there be no room for the application of Section 8, because Rule 25 excluded it, but there would also be no income left on which Section 8 could operate. But the learned Judges also gave the reason on which Mr. Chaudhuri relied and I must deal with it.
18. I am prepared to concede as a matter of theory that in the case of an assessee whose business it is to deal with money and credit, interest on securities cannot be summarily held to be outside his business income on the broad ground that it is not the product of business operations, but merely the yields of an investment which would be the same in the hands of any other assessee. A person or a concern may hold securities and may do no more than receive the interest on them. But he may also hold them, if he is engaged in business, not only in the course of, but also as a requirement or a consequence of his activities which constitute a business or trade. In other words, he may hold them or come to hold them in order to the carrying out of the mercantile operations which constitute his business. In such cases, it may not inappositely be said that the holding of securities is not merely investment of money in interest paying loans, but it is a part of the trading, and therefore the interest on the securities, regarded in its true character, is to the assessee his business income.
19. But it is important to remember that even when one reaches that stage in the argument, one is not at the end of his journey if one wants to have the interest taxed as business income. The fact that, commercially regarded, interest on securities may in the hands of a particular assessee be properly taken to be his business income, is not decisive for Income-tax purposes. Under the Income-tax law, income falling under some specific category in the scheme of taxation and directed to be assessed under that category, can be assessed, as I have said, only in that way; although regarded from another point of view, such income may properly be treated as belonging to another category except, however, in cases where the Income-tax law itself allows an option.
20. It is this last consideration which, it seems to me, must always be borne in mind in reading the English cases. Under the English Income-tax law, the several Schedules are mutually exclusive and if an item of income comes necessarily and directly under one Schedule, neither can the Crown charge it under another Schedule, nor can the assessee insist that it should be So charged. But the several cases under Schedule D are not mutually exclusive. If an item of income falls within the charee under two or more cases of Schedule D, the Crown has an option to assess that income under one or other of those cases and when it has elected to assess the income under one of those cases, the only question is whether the income came under that case at all. If it does, the assessment will be upheld, because the Crown had an option to choose the case it had chosen.
The leading case of -- '(1930) AC 432' (F) and the case of -- '(1932) 1 KB 517' (G), to which I have already referredj are illustrations of the first type of case, where the competition is between different Schedules. The case of --'Liverpool and London and Globe Insurance Co. v. Bennet' (1913) AC 610 (I), upon which the learned Judges of this Court wholly relied in the General Family Pension Fund case, is an illustration of the second type of case where the competition is between different cases under Schedule D. What was held in -- 'the Liverpool and London and Globe Insurance Company's case' (I) was merely this that if a company carries on a trade assessable under case I of Schedule D (trade), an integral part of which consists in making investments from which it receives income which is also chargeable under case 3 (interest) or case IV (foreign possessions) or case V (foreign securities), the profits may, at the option of the Crown, be assessed either under case I or under any one of the cases III, IV and V.
Where, however, the question is whether an item of income coming directly under one Schedule can be assessed under another Schedule, 'the answer has always been in the negative, because as between Schedules the Act allows no option just as, as between the several heads under Section 6, no option is allowed by the Indian Act. The true position, where the competition is between two Schedules, was explained by Lord Atkin in the case of -- '(1930) AC 432' (F) in the following words: 'Believing, as I do, that the specific Schedules A, B, C and E, and the rules thereunder contain definite codes applying exclusively to their respective defined subject-matters, I find no ground for assessing the tax-payer under Schedule D for any property or gains which are the subject-matter of the other specific Schedules.'
And again:
'In my opinion it makes no difference that the income so derived forms part of the annual profits of a trading concern. For the purpose of assessing such profits for the purpose of Schedule D, the income so derived is not to be brought into account.'
His Lordship observed further:
'Similarly I am of opinion that income derived by a trading company from investments of its funds, whether temporary or permanent, in Government Securities must be taxed under Schedule C, and cannot for the purposes of assessment under Schedule D be brought into account.'
21. The passage last cited is peculiarly pertinent to the point before us. Under the English Act, interest on securities which are payable out of the public revenue is chargeable under Schedule C, except a few cases which have been transferred to cases III and IV of Schedule D. If interest on Government Securities held by a trading company must be charged in England under Schedule C and under no other Schedule, as was pointed out by Lord Atkin in the passage above quoted, the interest on securities held by a banking company in India must on the same principle be charged and assessed under Section 8 and under no other section.
22. With great respect, I venture to think that when the Division Bench of this Court applied the case of -- (1913) AC 610' (I), in the -- 'General Family Pension Fund case' (H), they overlooked the fact that the case they were relying upon was a case of the same income appearing to fall under different Cases under Sch. D and not a case which was concerned with income appearing to fall under different Schedules. The distinction between the two cases will be found explained succinctly in Halsbury's Laws of England, Second Edition, Volume 17, page 31 and page 190. I therefore do not consider the case of the -- 'General Family Pensions Fund' (H) as compelling me to hold that the interest on securities in the present case was chargeable under Section 10.
23. I may in passing refer to what has beenregarded as a test of whether an income fromsecurities or loans is an income arising frominvestment of funds, chargeable without question as such, or income arising out of businessand so forming a part of the business income.The test, as suggested by Rowlatt, J., in --'Butler v. Mortgage Company of Egypt, Ltd.'(1929) 13 TC 803 (J), is whether 'you do notget the interest emerging as taxable under anycase at all till you get to the business.' Inother words, whether the investment is suchthat it is not an independent one and couldnot exist without the business, but is a necessary growth out of the business, so that onedoes not get the income as a separate Subject-matter of charge till the business, by its necessity, has produced it.
If a trading company merely holds investments in securities, the interest on such securities will not be business income. But if a trading company was bound to advance money to its customers on securities in the course of its mercantile operations, the interest on such-securities might be treated as business income. It will be noticed that securities contemplated in the second illustration I have given, are securities of a different character. Be that as it may, the case of a banker, holding securities in which a part of the business fund had been invested, was specifically considered by Mr. Justice Rowlatt in the case to which I have just referred. 'He receives,' observed his Lordship,
'no end of interest, which is a taxable matter under case III, but it is not taxed as interest as such, because it is merely incidental; ft is only part of the business to make this interest, not as interest, but as the income of the business. On his Consols he has to suffer deduction of tax, and it seems to me to follow from the -- 'Clerical, Medical and General Life Assurance Society case' (1883-90) 2 Tax Cas 437 (K) that a banker could never ask to be repaid the tax which had been deducted from the Government securities which he held, because he held them as a banker, the point being that when you have once got a security (we will say), the interest on which is taxed by the Act, you cannot get out of it because you say that you took a little further and see this is only embedded in business.'
It will thus be clear that considering the specific case of a banker, Mr. Justice Rowlatt drew a pointed distinction between the interest he received on ordinary transactions of loan and the interest he received on securities. The latter, his Lordship observed, was chargeable under a specific Schedule which he did not mention, but which is Schedule C, and the assessee could not claim that it should be treated as a business income. It seems to me, therefore, that even on the facts, it is not possible to hold in the present case that the interest on securities is in the hands of the assessee company trading or business income. Particularly, I may point out that there is no finding at all as to what the character of the securities is and we have been proceeding so long on the statement made by Mr. Chaudhuri that they formed part of the bank's circulating capital.
24. It appears to me, therefore, that both because the seveial heads under Section 6 in the Indian Act are mutually exclusive and because under any Income-tax law, an item of income coming under an exclusive head cannot in any circumstances be charged under another head ana also because the interest on securities in the hands of a banker cannot be treated as business income on the principles explained by Mr. Justice Rowlatt, I must hold that the contention of the assessee under the third question also must be rejected.
25. Towards the end of his argument, I pointed out to Mr. Chaudhuri that there was a special difficulty in his way which he might consider. His client was claiming to be allowed to set off the business loss of Rs. 3,21,929/-brought forward from the preceding year against the interest on securities of the present assessment year. That he could do only under Section 24 (2) of the Act, but that section, as recently interpreted by the Supreme Court in -- 'Anglo-French Textile Co., Ltd. v. Commissioner of Income-tax, Madras' AIR 1953 SC 111 (L), required that the income which had been carried over and which was intended to be set off against the present year's business income, must be such as had been set off under another head of income in the year from which it was being carried forward. Their Lordships pointed out that under Section 24 (1) of the Act, loss under any of the heads mentioned in Section 6 is to be set off against income, profits or gains under any other head. Under Section 24 (2), it is only the portion 'not so set off' which can be carried forward.
I pointed out to Mr. Chaudhuri that if he insisted that the income from interest on securities was a part of the business income and not a different income, his argument might recoil on himself, because, in that event, the two classes of income being the same, as contended, there could be no question of setting off the loss under one head against the income under another head in the previous year and therefore the amount, brought forward, would not be capable of being set off under Section 24 (2). That would be the result of contending that the interest on securities was a part of the business income.
Mr. Chaudhuri tried to meet that difficulty by saying that it was not known that there had not been a third head of income in the year from which the loss had been carried forward, and he referred to the presence of the small dividend income in the present accounting year. That income is there, but, at the same time, there is nothing to show that the loss which the assessee was trying to set off was loss which he could legally set off under Section 24 (2), as interpreted by the Supreme Court and the right to do so would not be established till it was proved that there had, in fact, been some other head of income in the relevant year. Besides, on Mr. Chaudhuri's argument, the dividend income might equally be business income. I do not, however, propose to base my decision on this ground, inasmuch as it was not argued at the Bar and the necessary facts are not before us. The reasons I have otherwise given are, in my opinion, sufficient for the disposal of this-Reference.
26. For the reasons which I have given, the answer to the questions referred must, in my view, be the following:
Question (1): No.
Question (2): No.
Question (3): No.
27. The Commissioner of Income-tax, West Bengal, will have the costs of this Reference.
28. Certified for two Counsel.
Lahiri, J.
29. I agree.