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COMPANIES (PROFITS) SURTAX ACT, 1964

COMPANIES (PROFITS) SURTAX ACT, 1964

7 of 1964

2nd May, 1964

STATEMENTS OF OBJECTS AND REASONS "The object of this Bill is to impose a special tax on companies (other than those which have no share capital) on their excess profits, namely, the amount by which the total income of a company as reduced by certain types of income and certain sums and the income-tax and super -tax payable by it exceeds a sum of ten per cent. of its capital reserves and certain borrowed moneys or a sum of Rs. 2 lakhs, whichever is higher....,................." -Gazette of India, 29-2-1964, Pt. II, S. 2, Ext., p. 178. Act 41 of 1975.- The object of this Bill is to amend the income-tax Act, 1961, the Wealth Tax Act. 1957, the Gift Tax Act, 1958 and the Companies (Profits) Surtax Act, 1964. The proposals relating to the amendments to these enactments have been formulated after a detailed examination of the recommendations of the Direct Taxes Enquiry Committee (Wanchoo Committee) and the Forty-seventh Report of the Law Commission on the Trial and Punishment of Social and Economic Offences, the latter in so far as they relate to direct taxes. Opportunity has been taken to sponsor some amendments on the basis of suggestions received from various other quarters as well. Technical difficulties arising in the operation of some of the provisions of these enactments have also been taken into account in formulating these proposals. 2. The main objective of the amendments proposed to be made are to unearth black-money and prevent its proliferation; to fight and curb tax evasion; to check avoidance of tax 'through various legal devices, including the formation of trusts and diversion of income or wealth to members of family; to reduce tax arrears and to ensure that in future, tax arrears do not accumulate; to rationalise the exemptions and deductions available under the relevant enactments, and to stremline the administrative set-up and make it functionally efficient. 3. The notes on clauses, appended to the Bill, explain the various provision thereof.- Gaz. of Ind., 9-5-1975, Pt. II, S. 2, Ext. p. 531.

An Act to impose a special tax on the profits of certain companies. Be it enacted by Parliament in the Fifteenth year of the Republic of India as follows :-

SECTION 01: SHORT TITLE AND EXTENT

(1) This Act may be called the Companies (Profits) Surtax Act, 1964.

(2) It extends to the whole of India.

SECTION 02: DEFINITIONS

In this Act, unless the context otherwise requires,-

1[(1) "advance surtax" means the surtax payable under section 7-A-;]

1[(1-A)] "assessee" means a person by whom surtax or any other sum of money is payable under this Act and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his chargeable profits or of the amount of refund due to him or of the chargeable profits of any other person in respect of which he is assessable or of the amount of refund due to such other person;

(2) "assessment" includes reassessment;

(3) "assessment year" means the period of twelve months commencing on the 1st day of April, every year;

(4) "Board" means the Central Board of Direct Taxes constituted under the Central Boards of Revenue Act, 1963-;

(5) "chargeable profits" means the total income of an assessee computed under the Income-tax Act, 1961-for any previous year or years, as the case may be, and adjusted in accordance with the provisions of the First Schedule;

(6) "Income-tax Act" means the Income-tax Act, 1961-.

(7) "prescribed" means prescribed by rules made under this Act;

2[(7-A) "regular assessment" means as assessment made under section 6-.]

(8) "Statutory deduction" means an amount equal to3[fifteen per cent] of the capital of the company as computed in accordance with the provisions of the Second Schedule, or an amount of two hundred thousand rupees, whichever is greater: Provided that where the previous year is longer or shorter than a period of twelve months, the aforesaid amount of3[fifteen per cent] or, as the case may be, of two hundred thousand rupees shall be increased or decreased proportionately:

Provided further that where a company has different previous years in respect of its income, profits and gains, the aforesaid increase or decrease, as the case may be, shall be calculated with reference to the length of the previous year of the longest duration; and

(9) all other words and expressions used herein but not defined and defined in the Income-tax Act shall have the meanings respectively assigned to them in that Act.

SECTION 03: TAX AUTHORITIES

- (1) The income-tax authorities specified in section 116 of the Income-tax Act-shall be the authorities for the purposes of this Act and every such authority shall exercise the powers and perform the functions of a tax authority under this Act in respect of any company, and for this purpose his jurisdiction under this Act shall be the same as that he has under the Income-tax Act by virtue of orders or directions issued under section 120 of that Act-(including orders or directions assigning concurrent jurisdiction) or under any other provision of that Act.

(2) The Board may, from time to time issue such orders, instructions and directions to other tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board : Provided that no such orders, instructions or directions shall be issued-

(a) so as to require any tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or

(b) so as to interfere with the discrertion of the Commissioner (Appeals) in the exercise of his appellate functions.]

SECTION 04: CHARGE OF TAX

- Subject to the provisions contained in this Act, there shall be charged on every company for every assessment year commencing on and from the first day of April, 19645[but before the first day of April, 1988], a tax (in this Act referred to as the surtax) in respect of so much of its chargeable profits of the previous year or previous years, as the case may be, as exceed the statutory deduction, at the rate or rates specified in the Third Schedule.

SECTION 05: RETURN OF CHARGEABLE PROFITS

(1) In the case of every company whose chargeable profits assessable under this Act exceeded, during the previous year, the amount of statutory deduction, its principal officer, or where in the case of a non-resident company any person has been treated as its agent under section 163 of the Income-tax Act,-such person, shall furnish a return of the chargeable profits of the company during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, before the 30th day of September of the assessment year: Provided that on an application made in this behalf, the6[Assessing Officer] may, in his discretion, extend the date for the furnishing of the return.

(2) In the case of any company which in the6[Assessing Officer's] opinion is assessable under this Act, the6[Assessing Officer] may, before the end of the relevant assessment year, serve a notice upon its principal officer, or where in he case of a non-resident company any person has been treated as its agent under section 163 of the Income-tax Act,-upon such person, requiring him to furnish within thirty days from the date of service of the notice a return of the chargeable profits of the company during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided that on an application made in this behalf, the6[Assessing Officer] may, in his discretion, extend the date for the furnishing of the return.

(3) Any assessee who has not furnished a return during the time allowed under sub-section (1) or sub-section (2), or having furnished a return under sub-section (1) or sub-section (2), discovers any omission or wrong statement therein, may furnish a return or a revised return, as the case may be, at any time before the assessment is made.

SECTION 06: ASSESSMENT

- (1) For the purposes of making an assessment under this Act, the7[Assessing Officer] may serve on any person who has furnished a return under sub-section (1) of section 5-or upon whom a notice has been served under sub-section (2) of section 5-(whether a return has been furnished or not) a notice requiring him on a date therein to be specified, to produce or cause to be produced such accounts or documents or evidence as the7[Assessing Officer] may require for the purposes of this Act and may from time to time serve further notices requiring the production of such further accounts or documents or other evidence as he may require.

(2) The7[Assessing Officer], after considering such accounts, documents or evidence, if any, as he has obtained under sub-section (1) and after the taking into account any relevant material which he has gathered, shall, by an order in writing, assess the chargeable profits and the amount of the surtax payable on the basis of such assessment.

SECTION 07: PROVISIONAL ASSESSMENT

(1) The8[Assessing Officer], before proceeding to make an assessment under section 6-(in this section referred to as the regular assessment) may, at any time after the expiry of the period allowed under sub-section (1) or sub-section (2) of section 5-for the furnishing of the return and whether the return has or has not been furnished, proceed to make in a summary manner a provisional assessment of the chargeable profits and the amount of the surtax payable thereon.

(2) Before making such provisional assessment, the8[Assessing Officer] shall give notice in the prescribed form to the person on whom the provisional assessment is to be made of his intention to do so, and shall with the notice forward a statement of the amount of the proposed assessment, and the said person shall be entitled to deliver to the8[Assessing Officer] at any time within fourteen days of the service of the said notice a statement of his objections, if any, to the amount of the proposed assessment.

(3) On expiry of the said fourteen days from the date of service of the notice referred to in subsection (2), or earlier, if the assessee agrees to the proposed provisional assessment, the8 [Assessing Officer] may, after taking into account the objections, if any, made under sub-section (2), make a provisional assessment, and shall furnish a copy of the order of the assessment to the assessee: Provided that assent to the amount of the provisional assessment, or failure to make objection to it, shall in no way prejudice the assessee in relation to the regular assessment.

(4) There shall be no right of appeal against a provisional assessment made under this section.

(5) After a regular assessment has been made, any amount paid or deemed to have been paid towards the provisional assessment made under this section shall be deemed to have been paid towards the regular assessment; and where the amount paid or deemed to have been paid towards the provisional assessment exceeds the amount payable under the regular assessment, the excess shall be refunded to the assessee.

SECTION 07A: ADVANCE PAYMENT OF SURTAX

(1) In this section,-

(a) "chargeable amount", in relation to any previous year, means so much of the chargeable profits of the previous year as exceed the statutory deduction;

(b) "current chargeable amount", in relation to the advance surtax payable by a company during any financial year, means the chargeable amount of the company of the period which would be the previous year of the assessment year immediately following that financial year.

(2) Surtax shall be payable, in accordance with the provisions of this section, in advance during the financial year in respect of the chargeable amount of the period which would be the previous year for the immediately following assessment year.

(3) The amount of advance surtax payable by an assessee in the financial year shall be computed as follows:-

(a) the chargeable amount of the latest previous year in respect of which the assessee has been assessed by way of regular assessment shall first be ascertained;

(b) in a case where the chargeable amount of the latest previous year [being a year later than the previous year referred to in clause (a)] on the basis of which a provisional assessment has been made under section 7-exceeds the chargeable amount referred to in clause (a), the chargeable amount referred to in clause (a) shall be substituted by the chargeable amount on the basis of which such provisional assessment has been made;

(c) surtax shall be calculated on the chargeable amount referred to in clause (a) or, as the case may be, in clause (b), at the rates specified in the Third Schedule.

(4) Subject to the provisions of this section, advance surtax shall be payable in three equal instalments on the following dates during the financial year, namely:-

(a) the 15th day of June, the 15th day of September and the 15the day of December, in the case of an assessee whose chargeable amount to the extent of 75 per cent thereof or more is derived from a source or sources for which the previous year (relevant to the assessment year next following the financial year aforesaid) ends on or before the 31st day of December;

(b) the 15th day of September, the 15th day of December and the 15th day of March, in any other case:

Provided that where, in respect of any class of assessees, the Board has, in exercise of the powers conferred by the proviso to sub-section (1) of section 211 of the Income-tax Act-, authorised the payment of the last instalment of advance tax on the 15th day of March during the financial year instead of on the 15th day of December, the last instalment of advance surtax in the case of such assessees shall also be payable on the 15day of March during the financial year.

(5) Every company shall, in each financial year, on or before the date on which the first instalment, or where it has not previously been assessed by way of regular assessment under this Act, on or before the date on which the last instalment of advance surtax is due in its case under sub-section (4), if it is likely to have any current chargeable amount, send to the11[Assessing Officer],-

(a) where it has been previously assessed by way of regular assessment under this Act; a statement of advance surtax payable by it computed in the manner laid down in sub-section (3), or

(b) where it has not previously been assessed by way of regular assessment under this Act, an estimate of-

(i) the current chargeable amount, and

(ii) the advance surtax payable by it on the amount specified in (i) above calculated in the manner laid down in sub -section (3), and shall pay such amount of advance surtax,-

(I) in a case falling under clause (a), as accords with the statement in equal instalments on the dates applicable in its case under sub-section (4); and

(II) in a case falling under clause (b), as accords with the estimate in equal instalments on such of the dates applicable in its case as have not expired, or in one sum if only the last of such dates has not expired.

(6) Where a company which is required to send a statement under clause (a) of sub -section (5) estimates on or before the date on which the first instalment of advance surtax is due in its case under sub-section (4) that, by reason of its current chargeable amount being likely to be less than the chargeable amount on which advance surtax is payable by it under sub -section (5) or for any other reason, the amount of advance surtax computed in the manner laid down in sub -section (3) on the current chargeable amount would be less than the amount of advance surtax payable by it under sub -section (5), it may send to the11[Assessing Officer], in lieu of such statement, an estimate of-

(i) the current chargeable amount, and

(7) Where a company which has sent a statement under clause (a) of sub-section (5) estimates on or before the date on which the last instalment of advance surtax is due in its case that, by reason of its current chargeable amount being likely to be less than the chargeable amount on which advance surtax is payable by it under sub-section (5) or for any other reason, the amount of advance surtax computed in the manner laid down in sub -section (3) on the current chargeable amount would be less than the amount of advance surtax payable by it under sub -section (5), it may, at its option, send to the11[Assessing Officer] an estimate of-

(i) the current chargeable amount, and

(8) In the case of any company which is liable to pay advance surtax under sub-section (5) or sub-section (6) or, as the case may be, sub -section (7), if, by reason of the current chargeable amount being likely to be greater than the chargeable amount on which the advance surtax so payable by it has been computed or for any other reason, the amount of advance surtax computed in the manner laid down in sub-section (3) on the current chargeable amount (which shall be estimated by the company) exceeds the amount of advance surtax so payable it by more than twenty per cent of the latter amount, it shall, on or before the date on which the last instalment of advance surtax is payable by it, send to the11[Assessing Officer] an estimate of-

(i) the current chargeable amount, and

(ii) the advance surtax payable by it on the current chargeable amount calculated in the manner laid down in sub -section (3), and shall pay such amount of advance surtax as accords with its estimate on such of the dates applicable in its case under sub-section (4) as have not expired, by instalments which may be revised according to sub-section (9): Provided that where in respect of any company the Commissioner has, in exercise of the powers conferred by the first proviso to sub-section (4) of section 209A-, or the first proviso to sub-section (3A) of section 212-, of the Income-tax Act, extended the date for furnishing the estimate referred to in the said sub-section (4) or, as the case may be, the said sub -section (3A) and the company has paid the advance surtax which it is liable to pay under sub-section (5) or subsection

(6) or, as the case may be, sub-section (7) on or before the date on which the last instalment of advance surtax is due in its case, the company shall pay, on or before the date as so extended, the amount by which the advance surtax already paid by it falls short of the advance surtax payable in accordance with its estimate.

(9) The company may send a revised estimate of the advance surtax payable by it on or before any one of the dates specified in sub -section (4) and adjust any excess or deficiency in respect of any instalment already paid in a subsequent instalment or in subsequent instalments.

(10) Every statement or estimate under this section shall be sent in the prescribed form and verified in the prescribed manner.

SECTION 07B: INTEREST PAYABLE BY GOVERNMENT

- The Central Government shall pay simple interest at 10[fifteen per cent.] per annum on the amount by which the aggregate sum of any instalments of advance tax paid during any financial year in which they are payable under section 7A-exceeds the amount of the tax determined on regular assessment, from the 1st day of April next following the said financial year to the date of the regular assessment for the assessment year immediately following the said financial year.

SECTION 07C: INTEREST PAYABLE BY ASSCSSEE

(1) Where, in any financial year, a company has paid advance surtax under section 7A-on the basis of its own estimate (including revised estimate), and the advance surtax so paid is less than eighty three and one-third per cent. of the assessed surtax, simple interest at the rate of10[fifteen per cent.] per annum from the 1st day of April next following the said financial year up to the date of the regular assessment shall be payable by the company upon the amount by which the advance surtax so paid falls short of the assessed surtax.

(2) Where, on making the regular assessment, the11[Assessing Officer] finds-

(a) that any such company as is referred to in clause (a) of sub-section (5) of section 7A -has not sent the statement referred to in that clause or the estimate in lieu of such statement referred to in sub-section (6) of that section; or

(b) that any such company as is referred to in clause (b) of sub-section (5) of section 7A -has not sent the estimate referred to in that clause simple interest at the rate of10[fifteen per cent.] per annum from the 1st day of April next following the financial year in which the advance surtax was payable in accordance with the said sub-section (5) or sub-section (6) up to the date of the regular assessment shall be payable by the company upon the amount equal to the assessed surtax.

(3) Where, on making the regular assessment,the11[Assessing Officer] finds that any company which is required to send an estimate under sub-section (8) of section 7A-has not sent the estimate referred to therein, simple interest at the rate of10[fifteen per cent.] per annum from the 1 st day of April next following the financial year in which the advance surtax was payable in accordance with the said sub-section (8) up to the date of the regular assessment shall be payable by the company upon the amount by which the advance surtax paid by it falls short of the assessed surtax.

(4) Notwithstanding anything contained in the foregoing sub-sections, where provisional assessment is made under section 7--

(i) interest shall be calculated in accordance with the provisions of sub-section (1) or sub-section (2) or, as the case may be, sub-section (3) up to the date on which the surtax provisionally assessed is paid; and

(ii) thereafter interest shall be calculated at the rate of10[fifteen per cent.] per annum on the amount by which the surtax provisionally assessed falls short of the assessed surtax.

(5) In such cases and under such circumstances as may be prescribed, the11[Assessing Officer] may reduce or waive the interest payable by the company under this section.

(6) Where, as a result of an order under section 11-, or section 12-, or section 13-, or section 17-, or section 18-read with section 260-orsection 262-of the Income-tax Act, the amount on which interest was payable under this section has been reduced, the interest shall be reduced accordingly and the excess interest paid, if any, shall be refunded.

(7) In this section and section 9A-, "assessed surtax" means the surtax determined on the basis of the regular assessment without making any deduction therefrom.

SECTION 07D: INTEREST PAYABLE BY ASSESSEE IN CASE OF UNDER --ESTIMATE, ETC

- Where, on making the regular assessment, the11[Assessing Officer] finds that any company has under section 7-A-underestimated the advance surtax payable by it and thereby reduced the amount payable in either of the first two instalments, he may direct that the company shall pay simple interest at10[fifteen per cent.] per annum for the period during which the payment was deficient, on the difference between the amount paid in each such instalment and the amount which should have been paid, having regard to the aggregate advance surtax actually paid during the year.

SECTION 08: PROFITS ESCAPING ASSESSMENT

- If- (a) the12[Assessing Officer] has reason to believe that by reason of the omission or failure on the part of the assessee to make a return under section 5-for any assessment year or to disclose fully and truly all material facts necessary for his assessment for any assessment year, chargeable profits for that year have escaped assessment or have been under- assessed or assessed at too low a rate or have been made the subject of exercise relief under this Act, or

(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the12[Assessing Officer] has in consequence of information in his possession reason to believe that chargeable profits assessable for any assessment year have escaped assessment or have been under-assessed or assessed at too low a rate or have been the subject of excessive relief under this Act, he may, in cases falling under clause (a) at any time, and in cases falling under clause (b) at any time within four years of the end of that assessment year, serve on the assessee a notice containing all or any of the requirements which may be included in a notice under section 5-, and may proceed to assess or reassess the amount chargeable to surtax, and the provisions of this Act shall, so far as may be, apply as if the notice were a notice issued under that section.

SECTION 09: PENALTIES

- If the13[Assessing Officer], in the course of any proceedings under this Act, is satisfied that any person has, without reasonable cause, failed to furnish the return required under section 5-, or to produce or cause to be produced the accounts, documents or other evidence required by the13[Assessing Officer] under sub-section (1) of section 6-, or has concealed the particulars of the chargeable profits or has furnished inaccurate particulars of such profits, he may direct that such person shall pay, by way of penalty, in addition to the amount of surtax payable, a sum not exceeding-

(a) where the person has failed to furnish the return required under section 5-, the amount of14 [Surtax chargeable under the provisions of this Act]

(b) in any other case, the amount of surtax which would have been avoided if the return made had been accepted as correct: Provided that the13[Assessing Officer] shall not impose any penalty under this section without the previous authority of the13[Deputy Commissioner].

SECTION 09A: FALSE ESTIMATE OF, OR FAILURE TO PAY, ADVANCE SURTAX

- (1) If the Income-tax Officer, in the course of any proceedings in connection with the regular assessment for any assessment year, is satisfied that any assessee-

(a) has furnished under clause (a) of sub-section (5) of section 7A-a statement of advance surtax payable him which he knew or had reason to believe to be untrue, or

(b) has without reasonable cause failed to furnish a statement of the advance surtax payable by him in accordance with the provisions of clause (a) of sub-section (5) of section 7A-, he may direct that such assessee shall, in addition to the amount of surtax, if any, payable by him, pay by way of penalty a sum-

(i) which, in the case referred to in clause (a), shall not be less than ten per cent but shall not exceed one and a half times the amount by which the surtax actually paid during the financial year immediately preceding the assessment year under the provisions of section 7A -falls short of-

(1) eighty-three and one-third per cent of the assessed surtax, or

(2) the amount which would have been payable by way of advance surtax if the assessee had furnished a correct and complete statement in accordance with the provisions of clause (a) of sub-section (5) of section 7A-, whichever is less;

(ii) which in the case referred to in clause (b), shall not be less than ten per cent but shall not exceed one and a half times of eighty-three and one -third per cent of the assessed surtax.

(2) If the Income-tax Officer, in the course of any proceedings in connection with the regular assessment for any assessment year, is satisfied that any assessee-

(a) has furnished under clause (b) of sub-section (5) or sub-section (6) or sub-section (7) or sub-section (9) of section 7A-, an estimate of the advance surtax payable by him which he knew or had reason to believe to be untrue, or

(b) has furnished under sub-section (8) of section 7A-, an estimate of the advance surtax payable by him which he knew or had reason to believe to be untrue, or

(c) has without reasonable cause failed to furnish and estimate of the advance surtax payable by him in accordance with the provisions of clause (b) of sub-section (5) of section 7A-, or

(d) has without reasonable cause failed to furnish an estimate of advance surtax payable by him in accordance with the provisions of sub -section (8) of section 7A-, he may direct that such assessee shall, in addition to the amount of surtax, if any, payable by him, pay by way of penalty a sum-

(1) eighty-three and one-third per cent of the assessed surtax, or

(2) where a statement under clause (a) of sub-section (5) of section 7A-was furnished by the assessee, the amount payable under such statement, which is less;

(ii) which, in the case referred to in clause (b), shall not be less than ten per cent. but shall not exceed one and a half times the amount by which the surtax actually paid during the financial year immediately preceding the assessment year under the provisions of section 7A-falls short of eighty-three and one-third per cent of the assessed surtax;

(iii) which, in the case referred to in clause (c), shall not be less than ten per cent but shall not exceed one and a half times of eighty-three and one -third per cent of the assessed surtax; and

(iv) which, in the case referred to in clause (d), shall not be less than ten per cent, but shall not exceed one and a half times the amount of surtax payable in accordance with a statement under clause (a) or an estimate under clause (b) of sub-section (5) of section 7A -or an estimate in lieu of a statement under sub -section (6) of that section falls short of eighty-three and one-third per cent. of the assessed surtax.

SECTION 10: OPPORTUNITY OF BEING HEARD

- No order imposing a penalty under section 9-16[or section 9A-] shall be made unless the assessee has been given a reasonable opportunity of being heard.

SECTION 11: APPEALS TO THE

17[Chief Commissioner or Commissioner (Appeals)]-

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