S.B. SINHA, J.

(1) AT the instance of the Revenue, the following questions have been referred to this Court for its opinion by the Income Tax appellate Tribunal, Delhi Bench b, New Delhi (hereinafter for the sake of brevity referred to as, the Tribunal) in terms of Section 256 (1) of the Income Tax Act, 1961 (hereinafter for the sake of brevity referred to as, the said Act) :-

"1. Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in confirming the order of the c. I. T. (A) thereby directing theO to adjust the deduction u/s 80k/80m of the Income Tax Act, 1961 against the dividend income before arriving at the gross total income of the assessee

2. Whether on the facts and in the circumstances of the case, the directions of the tribunal are not against the specific provisions of section 80a of the I. T. Act"

(2) THE assessment year in question is 1976-77. The assessee submitted a return showing its income at a loss of Rs. 23,612/- which was computed in the following manner:-

"that the assessee company had returned its income at a loss of Rs. 23,612/-computed in the following manner :-

Profits as per profit and loss account 10,646. 00 less :(i) Dividend income for separate consideration 49854. 00

(ii) Income from Regd. Firm 790. 00 50,644. 00 taken in last previous year.

() 39,998. 00

Add : Income from registered firm for this previous year (As per return of the registered (firm)810. 00 Business loss. ()39,188. 00 add : Dividend income 49,854. 00 less : deductions : u/s 80 K 10914/.-u/s 80 M 23364/-34,278. 00 15,576. 00 (60 % of (49854-10914)Business loss for the year to be carried forward in accordance with the sections 71 and 72 of the23,612. 00"

(3) BY an order dated 23. 11. 1979, the Assessing Officer assessed its income as nil stating :-

Net profit as per Profit and Loss account

10,646. 00

Deduction :

(i) Dividend income for consideration

49854. 00

(ii) income from registered firm for separate consideration

790. 00

(iii) Preliminary expenses claimed in excess of 10% of the 2/4 % of the capital employed.

Business loss :

1162. 00

51,806. 00

(-)

41,160. 00

Add: Share from the firm as discussed above Other sources :

(-) -K / M.

810. 00 49,854. 00

Dividend income

50,664. 00 41,160. 00

Less deduction under section 80 to the extent of profits.

9,504. 00 9,504. 00

Assessed at Nil income

NIL"

(4) ACCORDING to the assessee, the Assessing Officer had not granted to him the benefit of deductions under Section 80k and 80m of the said Act as a result whereof it was denied the right to carry forward the business loss as returned. An appeal was preferred against the order of assessment by the assessee and the Commissioner of Income Tax (Appeals) (in short, cit (A)) allowed the assessees claim stating :-

"2. The first ground urged in this appeal is that ITO erred in not allowing full deductions under section 80k and 80m out of the dividend income and then taking the balance dividend income for setting off against the business loss as desired by the appellant. It is seen from the computation of income that theO has set off the business loss from the dividend income leaving dividend income of rs. 9504/- to which extent only deduction u/s 80m has been allowed. The assessment order says nothing about the deduction u/s 80k. The appellant points out that when this point had earlier arisen in appellants case in assessment year 1975 - 76, the AAC had held that the appellant was entitled to full relief under section 80k and 80m out of its dividend income and that only the balance of the dividend, income could be set off against the business loss, the remaining business loss to be carried forward. The Departmental appeal against the AACs order was dismissed by the Tribunal vide their order dated 27-10-1979. Despite this past history it is surprising that the I. T. O. has furnished in following his old method of computation though the assessment order is dated 23-11-1979, without saying anything about the order of the AAC or of the Tribunal for assessment year 1975-76. In the absence of any material to the contrary I am unable to take a view different from the one taken by the Appellate authorities in assessment year 1975-76. Accordingly, the I. T. O. is directed to re-compute the appellants income for the year under appeal as directed by the AAC and the Tribunal for assessment year 1975-76. "

The Department preferred an appeal before the learned tribunal. However, the learned Tribunal dismissed the said appeal holding that Section 80aa of the said Act was not attracted.

(5) MS, Prem Lata Bansal, the learned counsel appearing on behalf of the Revenue, would submit that in terms of section 72 of the said Act, the business loss could be allowed to set off only from income from other sources as was rightly held by the Assessing Officer. As regard the first question, the learned counsel would contend that the business loss is to be adjusted first and then only the benefit of Section 80k and 80m of the said Act can be given.

(6) SECTIONS 80k and 80m of the said Act are in the following terms :-

"80k. Deduction in respect of dividends attributable to profits and gains from new industrial undertakings or ships or hotel business. Where the gross total income of an assessee, being. (a) the owner of any share or shares in a company, or (b) a person who is chargeable to tax under this Act on the income by way of dividends on any share or shares in a company owned by any other person,

Includes any income by Way of dividends paid or deemed to have been paid by the company in respect of such share or shares, there shall, subject to any rules that may be made by the Board in this behalf, be allowed, in computing his total income, a deduction from such income by way of dividends of an amount equal to such part thereof as is attributable to the profits and gains derived by the company from an industrial undertaking or ship or the business of a hotel, on which no tax is payable the company under this Act for any assessment year commencing prior to the 1st day of April, 1968, or in respect of which the company is entitled to a deduction under section 80j for the assessment year commencing on the 1st day of April, 1968, or for any subsequent assessment year:Provided that no deduction under this section shall be allowed in respect of any income by way of dividends which is attributable to the profits and gains derived by the company from an industrial undertaking which begins to manufacture or produce articles or to operate its cold storage plant or plants after the 31st day of March, 1976, or from a ship which is first brought into use after that date or from the business of a hotel which starts functioning after that date.

80m. Deduction, in respect of certain inter-corporate dividends. (1) Where the gross total income of a domestic company, in any previous year, includes any income by way of dividends from another domestic company, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of such domestic company, a deduction of an amount equal to,(i) in the case of a scheduled bank or a public financial institution or a State financial corporation or a State industrial investment corporation or a company registered under section 25 of the Companies Act, 1956 (1 of 1956), sixty per cent. of the income by way of dividends from another domestic company; (ii) in the case of any other domestic company, so much of the amount of income by way of dividends from another domestic company as does not exceed the amount of dividend distributed by the first-mentioned domestic company on or before the due date.

Provided that where any domestic company receives any income by way of dividend from the units of the Unit Trust of india established under the Unit Trust of India act, 1963 (52 of 1963), such domestic company shall, subject to the aforesaid provisions, be eligible for deduction to the extent of a) four-fifth of such income in respect of the previous year relevant to the assessment year commencing on the 1st day of April, 1994; (b) two-fifth of such income in respect of the previous year relevant to the assessment year commencing on the 1st day of April, 1995, and no deduction shall be allowed on such income in respect of the previous year relevant to the assessment year commencing on. the 1st day of April, 1996, and any subsequent previous year.

(2) Where any deduction, in respect of the amount of dividend distributed by the domestic company, has been allowed under clause (ii) of sub-section (1) in any previous year, no deduction shall be allowed in respect of such amount in any other previous, year.

(3) Where the dividend distributed is in respect of any period comprised in the previous year ending on the 31st day of March, 1990, no deduction shall be allowed in respect of such dividend.

Explanation. For the purposes of this section, the expressions

(i) "scheduled bank" means the State Bank of india constituted under the State Bank of India act 1955 (23 of 1955), a subsidiary bank as defined in the State Bank of India (Subsidiary banks) Act, 1959 (38 of 1959), a corresponding new bank constituted under section 3 of the banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), or under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), or any other bank included in the Second Schedule to the Reserve Bank of india Act, 1934 (2 of 1934), and which is a domestic company;

(ii) "public financial institution" shall have the meaning assigned to it in section 4a of the companies Act, 1956 (1 of 1956);

(iii) "state financial corporation" and "state industrial investment corporation" shall have the same meaning as in section 43b;

(iv) "due date" means the date for furnishing the return of income under sub-section (1) of section 139. "

(7) BOTH the questions have since been considered by the Apex court in Distributors (Baroda) P. Ltd. v. Union of India and ors. wherein upon. taking into consideration the amendments of the Sections made from time to time, it was held so far as Section 80m (1) of the said Act is concerned, the deduction required to be allowed under that provision has to be calculated with reference to the amount of dividend computed in accordance with the provisions of the said Act and forming part of the gross total income and not with reference to the full amount of dividend received by the assessee. Section 80aa, in its retrospective operation, is merely declaratory of the law as it always was since April 1, 1968, and no complaint can be validly made against the retrospective operation of the section on the ground that it enhances the tax burden of the assessee and, therefore, infringes the fundamental right of the assessee under Article 19 (1) (g) of the Constitution of India. In Distributors (Baroda) P. Ltd. s case (Supra), the Apex court over-ruled the decision of Cloth Traders P. Ltd. v. Additional Commissioner of Income Tax, whereupon the learned Tribunal and CIT (A) relied upon, stating :-

"there is also one other strong indication in the language of sub-s. (1) of s. 80m which clearly compels us to take the view that the deduction envisaged by that provision is required to be made with reference to the income by way of dividends computed in accordance with the provisions of the and not with reference to the full amount of dividend received by the assessee. This indication was also unfortunately lost sight of by the court in Cloth Traders case (1979) 118 itr 243 [LQ/SC/1979/272] , presumably because it was not brought to the attention of the court. The court observed in Cloth Traders case (1979)118 ITR 243 [LQ/SC/1979/272] , that the whole of the income by way of dividends from a domestic company or 60% of such income, as the case may be, would be deductible from the gross total income for arriving at the total income of the assessee. We are afraid this observation appears to have been made under some misapprehension, because what sub-s. (1) of s. 80m requires is that the deduction of the whole or a specified percentage must be made from "such income by way of dividends" and not from the gross total income. Sub-s. (1) of s. 80m provides that in computing the total income of the assessee, there shall be allowed a deduction from "such income by way of dividends" of an amount equal to the whole or a specified percentage of such income. Now, when in computing the total income of the assessee, a deduction has to be made from "such income by way of dividends", it is elementary that "such income by way of dividends" from which deduction has to be made must be part of gross total income. It is difficult to see how the language of this part of sub-s. (1) of s. 80m can possibly fit in if "such income by way of dividends" were interpreted to mean the full amount of dividend received by the assessee. The full amount of dividend received by the assessee would not be included in the gross total income: what would be included would only be the amount of dividend as computed in accordance with the provisions of the. If that be so, it is difficult to appreciate how for the purpose of computing the total income from the gross total income, any deduction should be required to be made from the full amount of the dividend. The deduction required to be made for computing the total income from the gross total income can only be from the amount of dividend computed in accordance with the provisions of the, which would be forming part of the gross total income. It is, therefore, clear that whatever might have been the interpretation placed on clause (iv) of sub-s. (1) of s. 99 and s. 85a, the correctness of which is not in issue before us, so far as sub-s. (1) of s. 80m is concerned, the deduction required to be allowed under that provision is liable to be calculated with reference to the amount of dividend computed in accordance with the provisions of the and forming part of the gross total income and not with reference to the full amount of dividend received by the assessee.

This view which we are taking in regard to the construction of sub-s. (1) of s. 80m is also supported by the decision of a Bench of this court consisting of one of us, chandrachud C. J. and Tulzapurkar J. , in cambay Electric Supply Industrial Co. Ltd. vs. CIT (1978) 113 ITR 84. [LQ/SC/1978/133] This decision was rendered by the court on April 11, 1978, at least a year before the decision in Cloth traders case (1979) 118 ITR 243 [LQ/SC/1979/272] , but, unfortunately, it appears, it was not brought to the attention of the court when the Cloth traders case (1979) 118 ITR 243 [LQ/SC/1979/272] was argued, because we have no doubt that if it had been cited, the court would have certainly made a reference to it in the judgment in Cloth Traders case (1979) 118 ITR 243. [LQ/SC/1979/272] The section which came up for consideration before the court in cambay Electric Supply Industrial Co. Ltd. vs. CIT (1978) 113 ITR 84 [LQ/SC/1978/133] was undoubtedly a different one, namely, s. 80e, but the reasoning which prevailed with the court in placing a particular interpretation on sub-s. (1)of s. 80e would equally be applicable to the interpretation of sub-s. (1) of s. 80m. "

(8) THE aforesaid decision has been followed by the Apex Court in Commissioner of Income Tax v. Kotaqiri Industrial Cooperative

Tea Factory Ltd. stating :-"in Distributors (Baroda) Pvt. Ltd. s case (1985) 155 ITR 120 [LQ/SC/1985/208] this court has dealt with the question whether deduction of income by way of dividends under section 80m has to be made from the income computed in accordance with the provisions of the, i. e. , after deducting interest on monies borrowed for earning such income or from total income of dividends without so deducting the interest amount. In the earlier decision in Cloth traders Pvt. Ltd. s case (1979) 118 ITR 243 [LQ/SC/1979/272] , a three-judge Bench of this court had held that the deduction required to be allowed under section 80m must be calculated with reference to the full amount of dividends received from a domestic company and not with reference to the dividend income as computed in accordance with the provisions of the, i. e. , after making the deduction as provided under the. In the said decision in Cloth Traders pvt. Ltd. s case (1979) 118 ITR 243 (SC), the court did not notice the earlier decision of a two-judge Bench of the court in Cambay electric Supply Industrial Co. Ltd. vs. CIT (1978)113 ITR 84 [LQ/SC/1978/133] , wherein, in the context of section 80e, it was held that for the purpose of allowing deduction under the said provision, it was necessary to first compute the total income of the assessee in accordance with the other provisions of the, i. e. , in accordance with all the provisions except section 80e. The decision in Cloth Traders Pvt. Ltd. s case (1979) 118 ITR 243 (SC), has been overruled by the Constitution Bench in Distributors (Baroda)Pvt. Ltd. s case (1985) 155 ITR 120 (SC) [LQ/SC/1985/208] , wherein it has been observed (at page 135) :

"the opening words describe the condition which must be fulfilled in order to attract the applicability of the provision contained in sub-section (1) of section 80m. The condition is that the gross total income of the assessee must include income by way of dividends from a domestic company. gross total income is denned in section 80b, clause (5), to mean the total income computed in accordance with the provisions of the before making any deduction under Chapter VI- A or under section 280 - 0. Income by way of dividends from a domestic company included in the gross total income would, therefore, obviously be income computed in accordance with the provisions of the, that is, after deducting interest on moneys borrowed for earning such income. If income by way of dividends from a domestic company computed in accordance with the provisions of the is included in the gross total income, or, in other words, forms part of the gross total income, the condition specified in the opening part of sub-section (1) of section 80m would be fulfilled and the provision enacted in that subsection would be attracted. "

we are unable to hold that the observations made in the judgment while construing the words "such income by way of dividends" in. any way detract from the abovequoted observations inasmuch as this court has clearly said (at page 136) :"it is obvious, as a matter of plain grammar, that the words such income by way of dividends must have reference to the income by way of dividends mentioned earlier and that would be income by way of dividends from a domestic company which is included in the gross total income. Consequently, in order to determine what is such income by way of dividends, we have to ask the question : what is the income by way of dividends from a domestic company included in the gross total income and that would obviously be the income by way of dividends computed in accordance with the provisions of the. "

(9) YET again in Motilal Pesticides (I.) Pvt. Ltd. v. Commissioner of income Tax, the Apex Court observed :-

"both sections 80hh and 80m fall in chapter VI-A relating to deductions to be made in computing total income. It will be seen that that the language of sections 80hh and 80m is the same. It was held in Cloth Traders (P)Ltd. s case (1979) 118 ITR 243 (SC) that deduction is to be allowed on the gross total income and not on the net income. But when the decision in Cloth Traders (P) Ltd. s case. (1979) 118 ITR 243 (SC) was overruled in distributors (Baroda) Pvt. Ltd. s case (1985) 155 itr 120 (SC) [LQ/SC/1985/208] . After the decision in Cloth traders (P) Ltd. s case (1979) 118 ITR 243 (SC), two sections 80aa and 80ab were introduced by the Finance (No. 2) Act, 1980. While section 80aa was to have retrospective effect with effect from April 1, 1968, section 80ab was to have operation with effect from april 1, 1981. Section 80aa had the effect of effacing the decision of this court in Cloth traders (P) Ltd. s case (1979) 118 ITR 243 [LQ/SC/1979/272] , which had interpreted section 80m. Section 80ab was made applicable to all the sections in Chapter VI-A except section 80m, In distributors (Baroda) P Ltd. s case (1985) 155 itr 120 (SC) [LQ/SC/1985/208] , however, this court specifically overturned its earlier decision in Cloth Traders (P) Ltd. s case (1979) 118 ITR 243 (SC) and held that deduction is to be allowed only on the net income and not on the gross income. With reference to section 80ab, this court said it was merely of a Clarificatory nature and the decision of this court in Distributors (Baroda) P ltd. s case (1985) 155 ITR 120 [LQ/SC/1985/208] is thus irrespective of section 80ab of the. The high Court, therefore, relying on the decision of this court in Distributors (Baroda) P Ltd. s case (1985) 155 ITR 120 answered the question in favour of the Revenue and against the assessee. "

(10) SO far as the Question No. 2 is concerned, CIT (A) and the learned Tribunal appears to have lost sight of the definition of gross total income. gross total income means the total income computed in accordance with the provisions of the said Act, before making any deduction under this Chapter, as contained in sub-section (5) of Section 80b of the said act. There, thus, cannot be any doubt whatsoever that while computing the income, all provisions are required to be applied and thereafter only the deductions had to be allowed.

(11) SECTION 80aa of the said Act, as it stood then before its repeal, which provided for computation of deduction under section 80m was in the following terms :-

"80aa. Computation of deduction under section 80m. Where any deduction is required to be allowed under section 80m in respect of any income by way of dividends from a domestic company which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, the deduction under that section shall be computed with reference to the income by way of such dividends as computed in accordance with the provisions of this Act (before making any deduction under this chapter) and not with reference to the gross amount such dividends. "

The retrospective effect thereto, as noticed hereinbefore, has since been upheld in the aforementioned judgments.

(12) FOR the reasons aforementioned, both the questions are answered in the negative, i. e. , in favour of the Revenue and against the assessee.