THE COMMISSIONER OF INCOME-TAX, MADHYA PRADESH AND BHOPAL versus MESSRS. VYAS & DOTIWALA

October 3.

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THE COMMISSIONER OF INCOME-TAX, MADHYA PRADESH AND BHOPAL v. MESSRS. VYAS & DOTIW ALA

(VENKATARAMA AIYAR, GAJENDRAGADKAR and A. K. SARKAR JJ.)

I ncome-tax-Assessees financing. cloth distribution scheme-Pro fits, if accrue to assessees-Agreement to utilise profits for charitable purposes-Such profits, if exempt from taxation-Indian Income-tax Act, r922 (XI of r922), s. 4(3) (i-a).

The Deputy Commissioner of Amraoti, evolved a scheme for the distribution of standard cloth. The assessees agreed to finance the scheme without charging any interest and were ap pointed financiers and distributors. The orders for the cloth were placed by the Government with the mills and the cloth was deli vered to the assessees upon their paying the value of the cloth together with 6!% of the ex-mill price. The Deputy Commis sioner paid 4t% of the ex-mill price to the assessees for contin gent expenses of working the scheme. The assessees distributed the cloth at prices fixed by the Deputy Commissioner through the Tehsildars and the Deputy Commissioner was responsible to the assessees for the sale proceeds receivable from the Tehsil dars. Out of the sale proceeds the Deputy Commissioner paid to the assessees whatever thev had advanced on the cloth. The profits from the scheme were agreed to be utilised for such charitable purposes as might be decided by the Deputy Commis sioner. The assessees contended that the income was not their income and that it was exempt from taxation under s. 4(3) (i-a) of the Income-tax Act.

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Held, that the profits were income which accrued to the assessees. The assessees worked the scheme and such working produced the profits. The fact of the control of the Deputy Com missioner could not prevent the working of the scheme by the assessees from being a business carried on by them. The provi sions in the agreement that the Deputy Commissioner guarante ed the payment by the Tehsildars of the price due from them, and that the profits would be devoted to charity decided by the Deputy Commissioner and the claim for exemption under s. 4(3) (i-a) all indicated that the assessees were the owners of the business.

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Held further, that the profits were not exempt from taxa- tion under s. 4(3) (i-a), as the business was not carried on behalf of any religious or charitable institution.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

222 of 1956.

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Appeal by special leave from the judgment and decree dated December 8, 1953, of the former Nagpur

Th c .; 1:,;::;'.;;;~· High Court in Misc. Civil Case No. 55 of 1950. f [--' · Madhya Pradesh 0- G K Da 1ta <!

rT K • Rajagopala Sastri, R.H. Dhebar and.D. Gupta, for the

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Mmrs. Vyas o;. appellant..

Dotiwala

Sarkar ].

The respondent did not appear. 1958. October 3. The Judgment

delivered by

of the Court was

SARKAR J.-This is an appeal brought by special leave against the judgment of the High Court at Nagpur, delivered on a reference under s. 66(1) of the Income-tax Act, The appeal is by the Commissioner of Income-tax, Madhya Pradesh and Bhopal. The respondents are the assessees Vyas & Dotiwa.la. The respondents have not appeared in this appeal. We shall presently set out the facts but before we do that, we wish to state that the assessment years concerned were 1945-46 and 1946-47. Though there were two separate assessment orders in respect of these years, ultimately when they ca.me up before the Appellate Tribunal they were conaolidated into one appeal. The appeal before us likewise concerns both these assess ment years.

It appears that in or about July 1943 when consider able difficulty was being felt about cloth, the Deputy Commissioner, Amraoti, evolved a scheme to solve that difficulty. Under that scheme Kisanlal Vyas and a firm called Edulji Framji Dotiwala who have in these proceedings been referred to as Dotiwala, under took to finance the scheme without charging any interest or profit and were appointed as financiers and also distributors of a variety of cloth called stardard cloth for the town and camp of Amraoti and certain areas in the interior. It is not necessary to set out the various details of the scheme and it will be sufficient to state that Vyas and Dotiwala, who as an association of persons are the assessees concerned, agreed to open an account in the Imperial Bank of India to be operated by them out of which the purchases

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and Bhopal v.

Dotiwala Sarkar 1.

of the cloth were to be financed. The orders for the cloth were to be placed by the Government with the Th c - . . . mills and on the arrival of a consignment of cloth, t ie of Income-tax assessees were to pay to the Deputy Commissioner, Madhya Prade;h Amra.oti, the value of the consignment together with 6l per cent. of the ex-mill price. The consignment was thereupon to be opened and its contents checked by Messrs. Vyas & the assessees and the officials and delivered to the assessees on their granting a receipt for the same. The Deputy Commissioner would pay 4i per cent. of the ex-mill price to the assessees out of the amount paid by the latter as aforesaid for contingent expenses of working the scheme. The scheme provided that the contingent expenses were not to exceed 3 per cent. of the ex-mill price. The cloth coming to the hands of the assessees was to be distributed in Amraoti town and camp through a shop to be opened by the assessees and in the interiors of the area; concerned through Tehsildars with Patils under them. The substance of the arrangement of distribution appears to have been that it would be entirely under the co.ntrol of the Deputy Commissioner who made himself responsible to the a.ssessees for the sale proceeds receivable from the Tehsildars. The Deputy Commissioner was to decide the price for which the cloth was to be sold to the consumers and also the persons entitled to buy the cloth. Out of the sale proceeds the Deputy Commis- sioner was to pay to the assessees whatever they had advanced on account of the cloth. The most important provision in this scheme is para. 14 which is set out below.

Profits resulting from the scheme shall be utilised for such charitable purposes as may be decided on by in consultation with the the Deputy Commissioner advisory committee appointed to supervise the scheme.

It appears that the books of the ·assessees showed for the assessment year 1945-46 and Rs. 34,737/- Rs. 17 ,682/- for the assessment year 1946-4 7 as profits earned in working the scheme. The Income-tax Officer assessed the assessees to tax on the profits so earned.

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Dotiwala

omm1mon.,

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a•d Bhopal v.

Mess•s. Vy"' .s. appeal to h

The assessment orders made by this officer would •958 •- c - . . appear to show .that the only point urged by the - assessees e ore 1m agamst t e assessment was t at of Income-ta Madhya PrO:.sh the income was exempt from taxation under s. 4(3)(i-a) of the Indian Income-tax Act, 1922. The officer rejected this contention. The assessees went up in the Appellate Assistant Commissioner, b £ e ore w om the same contention appears to have been repeated. The Appellate Commissioner confirmed the order of the Income-tax Officer. The assessees then appealed to the Appellate Tribunal. The Tribunal held that the assessees had objected to the assessment before the Income-tax Officer on two grounds, namely, that the income was not the income of the assessees and that the income was exempt from taxation under s. 4(3)(i-a), as appeared from their letter dated January 22, 1947. One of these alone had been dealt with by that officer, as appears from his order ear1ier referred to. The Appellate Tribunal agreed with the conten tion of the assessees that they were not liable to be taxed on the profits because these did not form their income. The Tribunal was of the view that the scheme was the scheme of the Deputy Commissioner and completely under his control ; that the assessees were merely the financiers and also managers under the peputy Commissioner to carry out the scheme and that the assessees only helped to work the scheme. The Tribunal held that the profits that may have resulted from such working were not therefore theirs nor represented their income and the assessees could not be assessed to income-tax thereon. Ill this view of the matter the Tribunal set aside the orders of assessment.

Thereafter, on the application of the revenue autho rities the Tribunal referred the following question to the High Court under s. 66(1) of the Act:

Whether on the facts of this case any income accrued to Messrs. Vyas and Dotiwala as the result of their associating the scheme for the distribution of stands.rd cloth ; and, if so whether such income was assessable in their hands.

themselves as financiers

in

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1 lie Commissioner

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On that reference the High Court held that under the charging section in the Indian Income-tax Act, 1922, . h 4 . name y, s. , it was necessary 1or t e revenue aut o- 1 rities to prove that the assessees received or should be ,:.,d,.;:• ;;a::~.,. deemed to have received income or profit from the scheme during the relevant period. It held that the assessees had not actually received any such income Messrs. Vyas <!> and further that the expression " deemed· to be received" in that section only meant deemed by the provision of the Act to be· received, and no such provisions of the Act had been relied upon on behalf of the revenue authorities. In this view of the matter the High Court answered the question framed, in the negative.

and Bllopal

Sarkar ;.

DoliUllilla

11

v.

The learned :::lolicitor-General contends

that the High Court failed to appreciate the real question. He says that the question was not whether income was received or deemed to be received but whether income had accrued and the point for decision was, as appeared from the judgment of the Tribunal, whether the profits formed the income of the assessees. We agree with this criticism of the judgment of the High Court.

On the point that arises from the question framed, we think that the Tribunal went wrong. It is not disputed that the assessees worked the scheme and such working produced the profits as found in the assessment orders. The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner, the a.ssessees could not be said to have carried on business by working the scheme. We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them. In our view, it only comes to this that the assessees had agreed to do business in a. certain manner. The fact that the Deputy Commis sioner guaranteed the payment by the Tehsildars of the price due from them, to the assessees would indi cate that the assessees were treated as the owners of the business. It would indicate that if there had been no such guarantee, the loss due to the failure of the Tehsildars to pay their dues would have to be borne

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by the a.ssessees. Again the claim, may be in the alternative, by the. a.ssessees for exemption under omm•monu s. 4(3)(i-a.) would not a.rise unless the a.ssessees were Th',C 1 01 ncome-tax, . a.st y, pa.re.. 4 o t e sc eme Madhya Prad"h carry mg on a usmess. and Bhopal which we have earlier set out, clearly contemplates profits resulting from the scheme. The provision that M""'·. Vyas .s- the profits would be devoted to charity to be decided by the Deputy Commissioner, would indicate that without it the profits would have been utilise.hie by the a.ssessees. The profits belonged to the a.ssessees and hence the necessity for this agreement so that ·the a.ssessees might be made to spend them on charity. If, as the Tribune.I thought, the profits were of the Government, there was no necessity for the Govern ment providing for the profits being expended on charity, for the Government if minded to do so, could . have done it without such a provision. The fact remains that t.he working of the scheme produced profits and apart from para. 14 such profits undoubtedly belonged to the a.ssessees. If they chose to agree by pa.re.. 14 to devote the profits to charity, that was their business; the profits ma.de by them would not change their character and cease to be the assessees' income because they agreed to devote their income to charity. We might also say that there is nothing in the scheme which shows that the a.ssessees had undertaken not to make any profits on the distribution work under the scheme ; they had only a.greed to finance the scheme without receiving any interest or profit. Furthermore, since the assessees actually made the profits, they a.re liable to pay tax thereon whether they a.greed not to make any profits or not. We wish also to point out that it is not the a.ssessees' case that they have been made to pay out the profits for any charity. For these reasons we think that the profits were the profits of the assessees and they a.re liable to pay tax on them.

With regard to the a.ssessees' claim for exemption under s. 4(3)(i-a.), they a.re clearly not entitled to any. That claim of the asse88ees has not been accepted by any of the Courts below. Section 4(3)(i-a) applies to income derived from business carried on on behalf of a. religious and charitable institution when the income

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is applied solely to the purpose of the institution and the business is carried on in the manner provided. It The Commissioner is enough to say that the scheme, considered as a of Income-tax. business, was not carried on on behalf of any religious Madhya Pradesh or charitable institution. Once it is held that the assessees made the profit, bow they use it would not matter.

x95B

and Bhopal v. Messrs. Vyas c;. Doliwula

Sarkar J.

October 3.

In the result, we would answer both parts of the question framed, in the affirmative. We bold that the profits were the income which accrued to the a.ssessees and such income is assessable to income-tax and is not exempt from taxation under s. 4(3)(i-a). The appeal is allowed with costs here and below.

Appeal allowed.

SMT. INDERMANI JATIA v. COMMISSIONER OF INCOME-TAX, U.P., LUCKNOW (VENKATARAMA AIYAR, P. B. GAJENDRAGADKAR and A. K. SARKAR, J J)

Income-tax-Mercantile system of accounts-Accounts in India showing credit entry of receipt of interest from Indian State-If such amount liable to tax-New point-Indian Income-tax Act. z9:z:z (XI of z9:z:z), s. 4 (I)(a).

The assessee, who was ordinarily resident in British India, carried on ·business at Khurja and Aligarh in India and at Chistian in the Indian State of Bahawalpur. He kept a central set of accounts of the business at Khurja, which were maintained on the mercantile system. Under the said system credit entries are made in respect of amounts due immediately they become legally due and even before they are actually received. In his account books the income received by the assessee froll\ all sources was ~ shown, and the interest · account showed credit entries of amounts received as interest on capital invested in the shop at Chistian. The assessee conceded that as creditor he had the right to enforce the payment of interest in British India and that liability of the Chistian shop had been extinguished to the