PERFORMING RIGHT SOCIETY LTD. & ANR. versus COMMISSIONER OF INCOME-TAX & OTHERS

PERFORMING RIGHT SOCIETY LTD. & ANR. v. COMMISSIONER OF INCOME-TAX & OTHERS

August IO,. 1976

171

A,

[A. C. GUPTA AND JASWANT SINGH, JJ.]

B,

Income Tax Act, 1961~. 5(2)-Non-reSipent · cdmpany receb1ing income

outside Jndia-I.ncon1e if accrued in India.

The appeliant Society which is an associationJ>f composers, authors and the English publishers of copyright musical works was incorporated under Cempanies Act, 1903 and 1913 with its registered office ih London.· It collects royalties for the is'sue of licences, granting permission for performing right in the works of its memberg and distributes the :royalties to its members. The C Society entered into an agreement in England .with the President of India by v,1hich it granted to the All India Ra.did (the licensee) authority to broadcast from its sound broadcasti.pg stations in ]ndia the musical works of the Society. Under· the agreement the licensee had to. pay in England anhual licence fee payable to the Society.

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The appellant eontended (i) that the agreement between the appellant and the licensee having been executed in England ahd the royalties being also payable in England, the income out of thig agreement was not liable to be taxed in Il India and (ii) the Society being under an obligation to distribute the income ta __ its members, royalties realised are hot reaily income of the Society.

Rejecting the contentions, HELD: (l)(a) Whether a certain income accrued or arose in India within the meaning of s. 5(2)" isl a question of fact "'which should be looked at and decided in the light or commonsense and plain thinking. ty The Society is a non-re~ident company and though it received the income 9Ut Of the agreement executed, not in India but England, the income undoubtedly accrued or arO<Jei E in India.

[175H and Fl

(b) The quCstion whether the agreemeht is the source of the income is not relevant because s. 5(2) provides that all income "from whatever source deriv if the ed"' is to be included in the total inoome of the non-resident assessee income accrues or arises in India during the relevant year. The income in this case had ·infact accrued in India and by virtue of s. 9 no question arises whether it should be udeemed• to accrue or arise in India. [175 G] In the matter of V.G. Every: (1937) 5 I.T.R 216 approved.

(2) Article 48 of the Society's ·Articles of Association shows that the royal ties payable by the licensee under the agreement are realised by the SOciety as its income. Out of the receipts are deducted 1he expenses and al50- such other sums as in the discretion of the General Council should be set aside for the purposes mentioned .ih that article. This is a case where the assessee, having received the income, applies it in a particular Way; it is not a case ,of diversion of income by an overriding charge. [177 C]

Raia Beioy Siizgh Dudhuria v. Commissioner of Income-tax, Bengal (1933) 1 I.T.R., 135. P. C. Mullick and another (Executors) v. Commissioner of Inceme-tax, Bengal (1938) 6 l.T.R. 206 and Com1nissioner of Income-tax, Bombay City v. Sitaldas Tirathdas [1961] 41 I.T.R 367 (pp. 374-375) disting uished.

F

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Civ!L APPELLATE JURISDICTION: Civil Appeal No. 488 of 1975. (Appeal by Special Leave from the Judgment and --Order dated H

24-9-1973 of the Calcutta High Court in Appeal from Original Order & No. 335/73).

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SUPREME COURT REPORTS

[1977] 1 S.C.R.

Hard(}yal Hardy, for appellant No. 1. A. K. Sen, S. K. Mehta, M. Qamaruddin and P. N. Puri, for respon

dent No. 2 . .

S. C. Manchanda, P. L. Juneja and S. P. Nayar, for respondents. The Judgment of the Court was delivered by G.UPTA, J. The first appellant, Performing Right Society Limited, (heremafter called the Society) is a company incorporated under the (English) Companies Acts, 1908 and 1913, having its registered office at Copyright House, 33 Margaret Street, Cavendish Square, London a company limited by guarantee and having no share capital. The Society is an association of composers, authors and . publishers of copyright musical works established to grant permission for the per forming right in such works. 'Performing right' means the right of performing in public, broadcasting and causing to, be transmitted to subscribers to a diffusion service, in all parts of the world. The mem bers of the Society are required to assign to the Society the performing right in their works, and the Society exercises and enforces on their behalf all rights and remedies in respect of any exploitation of such works. The Society collects royalties for the issue of licences granting such permission and distributes the royalties to the members of the society, namely, the composers, authors, music publishers and other persons having an interest in the copyright in proportion to the extent .to which a member's work is publicly performed or broadcast afo~r a pro-rata deduction of the expenses. Article 43 0£ the Articles of Asso dation of the Society provides that the business and operations of the Society shall be conducted and managed by a General Council, and Article 48 authorises the General Council to apply the receipts also for certain other purposes. Article 48 reads as follows :

"48. The General Council may, before making any distribu tion among the Members :

it

thinks

(a) Apply out of the receipts such sums as proper or has agreed to contribute as : - (i) Gratuities, donations, pensions and emoluments to any Member or ex-Member of the Society or any person at any time in the employment of the Society, or engaged in any business acquired by the Society, and the wives, widows, families and dependants of any such person;

(ii) Contributions to any benevolent, pension or similar fund which may be established for the benefit of Members, ex-Members or employees of the Society or their wives, widows, families or dependants.

(b)

Set aside out of the receipts such sums as it thinks proper as subscriptions, donations, loans, gifts or other payments for any of the purposes for which powers is given by paragraphs (iii) a1:1d _(iv) of Cl~use 3 ( f) of the Memorandum of Associat10n, provided

PERFORMING RIGHT SOCIETY v. COMMR. OF 1.T. (Gupta, J.) 173

that without the assent of the Society in General Meet ing the aggregate of all such payment shall not in any one year exceed the sum of one thousand pounds and four thousand pounds under the provisions of those paragraphs respectively.

( c) Set aside out of the receipts such sums as

it

thinks proper as a reserve fund to meet contingencies, or for future distribution, or for repairing, improving and maintaining any of the property or premises of the Society and for such other purposes as the General Council shall in its absolute discretion think necessary or conducive to the interests of the Society, and may invest for the several sums so set aside in such invest- ments as it may think fit, and from time to time deal with or vary such investments and dispose of all or any part thereof for the benefit of the Society, and may divide the reserve fund into such special funds as it thinks fit, and employ the reserve fund or any part thereof for the general purposes of the Society, and that without being bound to keep the same separate from the other assets."

'

On December 13, 1953 the Society entered into an agreement with the President of India owning and controlling broadcasting stations in India and organizing and conducting the same under the name of All India Radio (hereinafter referred to as the licensee) whereby the Society granted to the licensee the authority, (a) to broadcast from the licensee's sound broadcasting stations in India all musical works included in the repertoire of the Society, and (b) to utilize, solely, for the purpose of sound broadcasting as aforesaid, any originating performance of such musical works, irrespectivie of the source of such performance and the means whereby the such performance is conveyed to the point of broadcast transmission from the licensee's stations. The agreement It may be stated here that previous to this was executed in England. agreement the parties had entered into a similar agreement in the year 1940. The agreement of 1953 states that the licence granted thereby "shall be deemed to have come into force on April 1, 1949 and shall continue from year to year until determined by either party giving to the other three calendar months' notice in writing to expire on March 31 in any year". The agreement provides that the licensee shall send to the Society at its registered office in London, the lists of all musical works broadcast in each week during the term of the licence from each of the licensee's main stations (Delhi, Bombay, Calcutta and Madras) and the external services, and requires the licensee to furnish a return after the first day of April every year during the period of licence, stat ing the agreegate number of hours occupied during the period ended on the previous 31st March, in broadcasting Western music from each of the licensee's ·main and external Service Stations. The agreement further provides that for the rights granted, the licensee will pay to the Society annually a sum calculated at the rate of £ 2 (Two pounds) per hour of broadcasting Western music from each of the licensee's

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SUPREME COURT REPORTS

[ 1977) 1 S.C.R.

main and external Service Stations and that such annual payments must be made to the Society in London.

file its returns of

The second appellant, M/s. Natsin India Private Limited is a pri vate limited company incorporated under the (Indian) Companies Act having its ofhce at 26, Chowringhee Road, Calcutta. The second appellant was appointed by the Society to be its lawful attorney in India by virtue of a power of attorney granted by the Society to the second appellant in July, 1967. As agent in India for the Society, the second appellant realises on its behalf royalties from cinema houses and other sources where music over which the Society has copyright is played in this country, and has, inter alia, the power 10 commence and prosecute suits and other proceedings, engage lawyers, and sign plaints, petitions etc. Prior to July, 1967 the Society, a non-resident company, used to income before the Income-tax Officer, Madras, through its former agent in India, M/s. Vernon and Com pany of Madras. The royalties or fees realised from the licenset; were not included in its returns for the assessment years 194 7-48 to 1950-51. Later, the Income-tax Officer, Madras, issued notices under section 34 (1) of the Income-Tax Act, 1922 and assessed the said income after deducting the proportionate administrative expenses. The appeals taken by Vernon and Company against the supplementary assessment orders for the aforesaid years were dismissed by the Appellate Assis tant Commissioner, Madras. The matter rested there and the Society had been paying tax on its income in India including the income from royalties received from the licensee without objection until th~· assessment year 1967-68 for which the accounting year ended Decem ber 31, 1966. In the said assessment year also the Income-tax Officer, Companies Circle L(II), Madras by his order dated October 23, 1963 assessed the total income of the Society treating the income arising out of the agreement with the licensee as chargeable as was being done all these years. Against this order of assessment, the So ciety through the second appellant made a revisional application un der section 264 of the Income-Tax Act, 1961 (hereinafter referred to as the Act) to the Commissioner of Income-tax, West Bengal, where the Socie!y's income-tax file had been transferred in the mean time. The Additional Commissioner of Income-tax who dealt with the application dismissed the same by his order dated July 18, 1970. The Society then moved a writ petition before the Calcutta High Court challenging the order of the Additional Commissioner of Income-tax. A rule nisi was issued on the petition by a learned Judge of the High Court but ultimately the rule was discharged and the petition was dismissed. On appeal by the Society, a Division Bench of the High Court affirmed the view taken by the learned single Judge and dis missed the appeal on September 24, 1973. In this appeal by special that decision and leave challenge the order of assessment on two grounds :

the appellants question

the correctness of

( 1) the agreement between the Society and the Licensee having been executed in England and the royalties being also pay able in England, the income out of this agreement is not liable to be taxed in India;

.Pl!RFORMING RIGHT SOCIETY v. COMMR. OF I.T. (Gupta, J.) 175

(2) the Society being under an obligation to distribute the income to its members, the royalties realised are not re ally the income of the Society.

"The first point seems to be covered by the provisions of section 5 (2) i(b) of the Act. Section 5 (2) reads as follows :

"5. Scope qf total income :

(1)

x , ( 2) Subject to the provisions of this Ac~,

x the tot~l ·income of any previous year of a person who is a nou-~es1- source denved dent includes all income from whatever 'Which-

x

,a.) is received or is deemed to be received in India in such year by or on behalf of such person; or

·(b) accrues or arises or is deemed to accrue .or arise to

him in India during such year.

Explanation-1.-Income accruing or arising outsiue .India shall not be deemed to be received in India within the meaning of this section by reason only of .the fact that it is taken into account Mi a balance sheet prepared in India.

Explanation 2.-'For the removal of doubts, it is hereby declared that income which has been included in the total income df a person on the basis that it has ac crued or arisen or is deemed to have accrued or ari ·sen to 'him. sha:l'l not again be so included on the basis that it is .received .or deemed to be received by him in India:"

ihe Society is a non-resident company, and though it receives the in come out of the agreement executed not in India but in England, the income undoubtedly accrues or arises in India. On behalf of the ap -pellants it was contended that the source of income was really the agreement which was entered into in England. We do not think that the question as to the source of the income is relevant because sub section ( 2) of section 5 provides that all income "from whatever source derived" is to be included in the total income of the non-resi dent assessee if the income accrues or arises in India during the rele vant year. Reference was also made to section 9 of the Act which enumerates the incomes t'hat shall be "deemed to accrue or arise in India" though actua:Ily accruing elsewhere, to establish that the in come in question cou1d not be deemed to accrue or arise in India. But the income in this case has in fact accrued ·in India and no question arises whether it shou1d be "deemed" to accrue or arise in India. Whether a certain income accrued or arose in India within the mean ing of section 5 (2) is a question of fact "which should be looked at and decided in the light of commonsense and plain thinking" as the Ca1cutta High Court considering a similar question under section 4 ( 1)

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SUPREME COURT REPORTS

[1977] 1 S.C.R'.

of the Income-Tax Act, 1922 observed.(') In the case before us the High Court and the income-tax authorities considered it a· hard matter of fact that the income derived from broadcast of copyright music from the stations of All India Radio arose in India. In our opinion this was the correct view to take and we find no reason to differ from it.

The next question is whether the income from the royalties was the Society's own income. It was contended on the authority of Raja Bejoy Singh Dudhuria v. Commissioner of Income-Tax, Bengal,(") that the obligation to disburse the sum among its members diverted the in come from the Society to the members,, and it could not be called the income of the Society. In Bejoy Singh Dudhuria's case there was a decree of the court charging the appellant's whole resources with a specific payment to his step-mother, the Privy Council held that the decree had to that extent diverted his income from him and directed it to his step mother, and that to that extent what he received for her was not his income. But where payments are made by the assessee after he has received the income as his, the position is different. This was pointed out by the Judicial Committee in a later case, P.C. Mullick and another (Executors) v. Commissioner of Income-tax, Bengal,(') where the executors in accordance with the directions in the will had paid Rs. 5,537 /- to the person who performed the testator's addya Sradh, and another sum of Rs. 1,25,000/- for probate duty out of the income of the estate. It was held that this was not a case in which a portion of the income was by an overriding title diverted from per son who would otherwise have received it as in Bejoy Singh Dudhuria's case but it was "simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand". The true test for the appHcation of the rule of diversion of income by an overriding title has been explained by this Court in Commissioner of Income-tax, Bombay City v. Sitaldas Tirathdas( 4

)

"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amout which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an: obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another

(!)In the matter ofV.G. Every. (1937) 5 l.T.R. 216 (Coskello 1.) (2) [19331 1 I.T.R. 135 (3) (1938) 6 T.T.R. 206. (4) (1961) 41 I.T.R. 367 (pp. 374-375).

PERFORMING RIGHT SOCIETY v. COMMR. OF I.T. (Gupta, J.) 177

a portion of one's own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable."

On the facts of the present case it is clear that the royalties pay- able by the licensee under the agreement are realised by the Society as its income; A[ticle 48 of the Society's Articles of Association puts the matter beyond doubt. Out of the receipts are deducted the ex penses and also such other sums as in the discretion of the General Council should be set aside for the purposes mentioned in Article 48. This is a case where the assessee having received the income applies it in a particular way; it is not a case of diversion of income by an overriding charge.

The appeal is accordingly dismissed. There will be no order as

to costs.

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P.B.R.

Appeal dismissed.