M.A.A. Raoof vs Income Tax Officer, Company Circle II(6), Madras and Another

Venkataswami, J.—The petitioner was the winner of a jackpot ticket in the Madras Race Course on September 6,1981. The dividend was

Rs. 9,361 out of which the second respondent deducted a sum of Rs. 3,040 towards Income Tax and surcharge and paid the balance to the

petitioner. has come to this court challenging the deduction at source from the amount that he is entitled to as a winner of the jackpot ticket. it

appears that he made representations to both the respondents that deduction of Income Tax at source is not in accordance with law and he must

be given back the amount so deducted. But, the second respondent replied stating that it is a statutory obligation and, therefore, he cannot but

deduct the same as required under law. As there was no response from the first respondent, the present writ petition has been filed.

The petitioner appeared in person and the substance of his argument as could he gathered from the affidavit, is as follows : According to the

petitioner, s. 10(3) of the I.T Act, 1961, does not contemplate levy of tax on income earned by a hobby or habits and he replied on a decision of

this court in Janab A. Syed Jalal Sahib (deceased) by legal representative Syed Usman Sahib Vs. Commissioner of Income Tax, Madras, , in

support of his contention. In that judgment, it has been held that though receipts from racing and betting activities are income, the same cannot be

exigible to tax in view of s. 4(3)(vii)of The Indian I.T. Act, 1922. Relying heavily in this decision, the petitioner contends that deduction at source in

present case in unsustainable in law.

Mrs. Nalini Chidambaram and Mr. S. V. Subramaniam, learned counsels appearing for the first and second respondents, respectively, brought

to my notice the subsequent charges that were brought into effect by the Finance Act 1972, with effect from April 1, 1972. By the said Amending

Act,the Finance Act, 1972, in the definition section of ""income"", a new sub-clause namely, sub-cl (9) to s. 2(24) of the Act, was added, under

which""income"" will include any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or

from gambling or betting of any form or nature whatsoever. Another important feature of the said Amending Act is, in s. 10(3), which corresponds

to s. 4(3)(7) of the old Act, an exemption has been introduced. The relevant provision of s. 10(3) is as follows :

any receipts which are of a casual and non-recurring nature, not being winnings from lotteries, to the extent such receipts do not exceed one

thousand rupees in the aggregate.

From this, it is clear that any receipts of a casual and non-recurring nature over and above Rs. 1,000 are taken away from the exemption, which

was not the case under the old Act, and even under the new Act before April 1, 1972. This important amendment introduced by the petitioner on

Janab A. Syed Jalal Sahib (deceased) by legal representative Syed Usman Sahib Vs. Commissioner of Income Tax, Madras, will not be any help

or use to him. Again, the other important feature to be noted is s. 56(2)(ib). That provision reads as follows :

In particular, and without prejudice to the generality of the provisions of sub-section (1), the following income shall be chargeable to Income Tax

under the head ''Income from other sources'', namely :.....

(ib) income referred to in sub-clause (9) of clause (24) of section 2...

""Income"" referred to in sub-clause (9) of clause (24) of s. 2, expressly income from horse races among other things, has been included under the

head ""Income from other sources"" for the purpose of taxation. In the light of these provisions brought out by the Finance Act, 1972, it is not

possible to accept the contention of the petitioner that the deduction at source by the second respondent is illegal.

Two other important sections which may be of relevance are s. 194BB and s. 203. Section 194BB speaks of deduction, at the source, of

income by way of taxation which has been done by the second respondent. The second respondent has also a statutory obligation discharge under

s. 203. If the grievance of the petitioner is that a larger amount by way of deduction has been taken away by the second respondent, a provision

has also been made in the Act, for him to approach the ITO, at the end of the year, by submitting proper returns of income, to get back any excess

amount paid.

Originally, the petitioner has filed the writ petition for the issue of a of mandamus forbearing the respondents from deducting or collecting Income

Tax at source and in view of fact that deducting or collecting been made, the petitioner was allowed to convert the petition into one for

certiorarified mandamus. In view of the clear position in law, and so long as the provisions are not challenged, it is not possible to give any relief to

the petitioner as prayed for. As the petitioner very much relies on the judgment of this court in Janab A. Sahib v. CIT [1960] ITR 39 which, as

explained above, cannot be relied upon, in view of subsequent amendment introduced ink the Act, the contentikons of the petitioner cannot be

accepted.

In the result, the writ petition fails and is dismissed. But, there will be no order as to cost.