THE COMMISSIONER OE' INCOME-TAX, WEST BENGAL versus ROYAL CALCUTTA TURF CLUB

I960

November a8.

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729

THE COMMISSIONER OE' INCOME-TAX, WEST BENGAL v. ROYAL CALCUTTA TURE' CLUB (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.) for preservation of business-If wholly and exclusively laid out for the purpose of business-Indian Income Tax Act, r922 (XI of r922), s. ro (2)(xv).

Income Tax-Expenditure

The business of the respondent club was to run race meet ings on a .commercial scale. The club did not own any horse and It. was a matter of some therefore did not employ jockeys. importance to the club that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because otherwise the running of the race meetings would not be commercially profitable and its interest would suffer and it might have had to abandon its busi ness if it did not take steps to make jockeys of the necessary calibre available. Therefore it established a school for the training of Indian boys as jockeys and claimed the sums spent on the running of the school as deductable amount under s. 10 (2)(xv) of the Indian Income Tax Act.

Th.e question was whether in the circumstances of the case the expenditure claimed was one which was wholly and exclusi vely laid out for the purpose of the respondent's business.

Held, that any expenditure which was incurred for prevent ing the extinction of a business would be expenditure wholly and exclusively laid out for the purpose of the business of the assessee and would be an allowable deduction.

In the instant case the amount in dispute was laid out wholly and exclusively for the purpose of the respondent's busi ness, because if the supply of jockeys of requisite efficiency and skill failed, the business of the respondent would no longer be possible.

Eastern Investments Ltd. v. Commissioner of Income-tax, West Bengal, [r95r] S. C.R. 594 and Commissioner of Income-tax v. Chandulal Keshavlal & Co., [1960] 38 I.T.R. 6o1, relied on.

British ltisulated and Helsby Cables v. Atherton, [1926) A. C. 205, Morgan v. Tate 0- Lyle Ltd., [1955) A. C. 21 and Boarland v. Kramat Pulai Ltd., [1953] 2 AIL E. R. n22, discussed.

Strong & Co. v. Woodifield, (1906) A. C. 448 and Smith v. Incorporated Council of Law Reporting, (1914) 3 K.B. 674, referr ed to .

. Ward 0- Co. Ltd. v. Commissioner of Taxes, [1923] A. C. 145,

distinguished.

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CIVIL APPELLATE JURISDICTION:

Civil Appeal No.

The Commission" 419 of 1958.

' •·

of Tncom!!·tax, West Bengal v. Royal Calcutta Turf Club

Kapur J.

Appeal by special leave from the judgment and order dated August 20, 1957, of the Calcutta High Court in Income-tax Reference No. 1 of 1956.

Hardyal Hardy and D. Gupta, for the appellant. N. C. Chatterjee, Dipak Choudhri and B. N. Ghosh,

for the respondent.

1960. November 28. The Judgment of the Court

was delivered by

KAPUR, J.-This is an appeal by special leave against the judgment and order of the High Court of Judicature at Calcutta in a reference made by the Income-tax Appellate Tribunal under s. 66(1) of the Income-tax Act. The following question was refer red:

"Whether in the facts and circumstances of this case, the Appellate Tribunal was right in holding that Rs. 61,818 spent by the assessee to train Indian boys as jockeys, did not constitute expenses of the business of the assessee allowable under s. 10(2)(xv)?" which was answered in favour of the respondent. The Commissioner is the appellant before us and the asses. see is the respondent.

The respondent is an association of persons whose to hold race meetings in Calcutta. on business is It holds two series of race a commercial basis. meetings during the two seasons of the year. The respondent does not own any horses and therefore does not employ jockeys but they are employed by owners and trainers of horses which are run in the races. It is a matter of some importance to the respondent that there should be jockeys avail able to the owners with sufficient skill and experience because the success of races to a considerable extent depends upon the experience and skill of a jockey who rides a horse in a race. Because it was of the opinion that there was a risk of the jockeys becoming unavail able and that such unavailability would seriously affect its business which might result in its closing

2 S.C.R. SUPREME COURT REPORTS

731

down the business, the respondent considered it ex- pedient to remedy that defect. Therefore in 1948, it Tl c ---.. established a school for the training of Indian boys as ~j 1;;::;~;::~er jockeys SO that after their training they might be West Bengal available for purposes of race meetings held under its auspices. The school, however, did not prove a sue- Royal Calcutta cess and after having been in existence for three years it was closed down.

1 ·urj Club Kapur J.

i96o

v.

During the year ending March 31, 1949, the respon dent spent a sum of Rs. 62,818 on the running of its school and claimed that amount as a deduction under s. 10(2)(xv) of the Income-tax Act and also in the assess ment under the Business Profits Tax for the charge able accounting period ending March 31, 1949. This claim was disallowed by the Income Tax Officer and on appeal by Appellate Assistant Commissioner and also by the Income-tax Appellate Tribunal. At the instan ce of the respondent the question already quoted was referred to the High Court and was answered in favour of the respondent. This appeal is brought by special leave against that judgment.

The decision under the Business Profits Tax Act will be consequential upon the decisfon of the deduc tion under the Income-tax Act. The Tribunal found that it was not the business of the respondent to pro vide jockeys to owners and trainers, that the jockeys trained in the respondent's school were not bound to ride only in the races run by the respondent and that the benefit, if any, which accrued was of ap. enduring nature. It also found that the respondent had been conducting race meetings since long, that it was not the case of the assessee that if-it did not train jockeys they would become unavailable and that the mere policy of producing efficient Indian jockeys was not a sufficient consideration for treating the expenditure as one incurred for the business of the respondent. For these reasons the expenditure was disallowed.

Before the Appellate Assistant e,pmmissioner, it was contended by the respondent, that the reason for incurring the expenditure was "to promote efficient Indian jockeys" and it was in the interest of the res pondent to see that the races are not abandoned on

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account of the scarcity of jockeys. In the order of the Tribunal it is stated that this was not the case of the d d he thereiore when the respondent want- respon ent, an of Income-tax West Bengal' ed paragraph 5 of the statement to be substituted by

- - . . omnnsstouer

C

I:

the following:

v. "It was the case of the assessee that unless it Royal Calcutta trained Indian Jockeys,· time may come when there Turf Club. Kapur]. may not be sufficient number of trained jockeys to

ride horses in the races conducted by the assessee." the Tribunal did not agree to do so.

Counsel for the appellant raised three points before us; (1) The question as to whether an item of expen diture is wholly and exclusively laid out for the pur poses of business or not is a question of fact; (2) the connection between an expenditure and profit-earning of the assessee should be direct and substantial and not remote and (3) to be admissible as revenue expen diture it should not be in the nature of a capital ex pense, i.e., it should not bring into existence an asset of an enduring nature.

As to the first question this court has held in Ea11- tern Investments Ltd. v. Commissioner of Income-tax, West Bengal(') that "though the question must be decided on the facts of each case, the final conclusion is one of law". In Commissioner of Income Tax v. Chandulal Keshavlal & Co. (2), this Court said:-

" Another test is whether the transaction is pro perly entered into as a part of the assessee's legitimate commercial undertaking in order to facilitate the car rying on of its business; and it is immaterial that a third party also benefits thereby. (Ea11tern Investment Ltd. v. Commissioner of Income-Tax, (1951) 20 I.T.R. 1). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. In the present case the finding is that it was laid out for the purpose of the assessee's business and there is evidence to support this finding." But those observations must be read in the context. In that case the assessee firm was the Managing Agent of a Company and at the request of the Direotors of

(1) [1951] S.C.R. 59~. 598.

(2) [1g6o] 38 I.T.R. 6o1, 610.

2 S.C.R. SUPREME COURT REPORTS

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Z960

v.

the latter agreed to accept a lesser commission for the year of account than it was entitled to. It was found Ths Commissione by the Appellate Tribunal there that the amount was of Income-tax, expended for reasons of commercial expediency and west Bengal was not given as a bounty but to strengthen the managed company so that if its financial position Royal Calctttta became strong the assessee would benefit thereby, and on the evidence the Tribunal came to the conclusion that the amount was wholly and exclusively for the purpose of such business. It was on this evidence that the expense was held to be wholly and exclusive- ly laid out for the purpose of the assessee's business and this was the finding referred to. In that case the Tribunal had not misdirected itself as to the true scope and meaning of the words "wholly and exclusively laid out for the purpose of the assessee's business". In the present case the Income-tax Appellate Tribu- nal had misdirected itself as to the true scope and meaning of these words. In our opinion, in the cir- cumstances of this case, it. cannot be said that the finding of the Tribunal was one of fact.

Turf Club Kapur 1.

The question as to whether the expenses of running the school for jockeys is deductible has to be decided taking into consideration the circumstances of this case. The business of the respondent was to run race meetings on a commercial scale for which it is neces sary to have races of as high an order as possible. For the popularity of the races run by the respondent and to make its business profitable it was necessary that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because without such efficient jockeys the running of race meetings would not be commercially profitable. It was for this purpose that the respondent started the school for training Indian jockeys. If there were not sufficient number of effi cient Indian jockeys to ride horses its interest would have suffered, and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore any expendi ture which was incurred for preventing the extinction

93

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'9

v.

Turf Club Kapur J.

decided cases.

of the respondent's business would, in our opinion, be The Commissioner expenditure wholl:y and exclusively laid out for the of Income-tax, purpose of the busmess of the assessee and would be West Bengal an allowable deduction. This finds support from In Commissioner of Income-tax v. Royal Calcutta Ohandulal Keshavlal & Go. (1 ), this Court held that in order to justify a deduction the disbursement must be for reasons of commercial expediency; it may be voluntary but incurred for the assessee's business; and if the expense is incurred for the purpose of the busi ness of the assessee it does not matter that the pay ment also enures to the benefit of a third party. Another test laid down was that if the transaction is properly entered into as a part of the assessee's legiti mate commercial undertaking in order to facilitate the carrying on of its business it is immaterial that a third party also benefits thereby. In British Insulated and Belsby Gables v. Atherton('), Viscount Cave L. C. held that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the ground of commer cial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purpose of the trade. In a case more recently decided Morgan v. Tate & Lyle Ltd. (8 ) the assessee company was engaged in sugar refining business and it incurred expenses in a propa ganda campaign to oppose the threatened nationalisa tion of the industry. It was held by the House of Lords by a majority that the object of the expenditure being to preserve the assets of the company from seizure and so to enable it to carry on its business and earning profits, the expense was an admissible deduc tion being wholly and exclusively laid out for the pur pose of the company's trade. Lord Morton of Henry. ton said:

"Looking simply at the words of the rule I would ask: "If money so spent is not spent for the purpose of the company's trade, for what purpose is it spent?" If the assets are seized, the company can no longer

(1) (1g6o) 38 I.T.R. 601, 610.

(2) [1926] A.C. 205.

(3) [1955] A.C . .,,

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2 S.C.R. SUPREME COURT REPORTS

735

th

. e very existence o

carry on the trade which has been carried on by the use of these assets. Thus the money is spent to pre- Th c --. . e ommissioner serve of Income-ta"· See also Strong & Co. v. Woodifield( 1), the observations West Bengal of Lord Davey; and Smith v. Incorporated Council of Law Reporting (g).

, t d ,, e company s ra e .

f th

z96o

.

v. Royal Calcutta Turf Club

.

Kapu 1 1.

1

C

ounsel for the appel ant relied upon t e Judgment of the Privy Council in Ward & Co. Ltd. v. Commis- ), but that decision proceeds on a sioner of Taxes (3 different statute where the words were of a very res- trictive character, the words being:

h

" ..................... Expenditure or loss of any kind not exclusively incurred in the production of the assessable income derived from that source ............ ". This case was distinguished in Morgan v. Tate & Lyle(') on the ground that the language of the New Zealand statute was much narrower than the language of r. 3A in England.

Reference was also made by the appellant to Boar "land v. Kramat Pulai Ltd. (5 In that case DiJ'.ectors ). of three Companies engaged in tin mining in Malaya incurred expenditure on printing and circulating to shareholders a pamphlet containing remarks of the Chairman of the Company. The pamphlet was an attack on the policy and acts of the Socialist Govern ment and it was held that the question whether the money was wholly and exclusively laid out or expend ed for the purpose of trade within the meaning of rules applicable to the question was one of law but on a consideration of the question it was held that the expenditure was not solely incurred with that object. It is not necessary to discuss that case at any length because what was held in that case was that the pam phlet was not wholly and exclusively for the purpose of the company's trade.

.

Applying the law, as laid down in those cases, to the present case the conclusion is that the amount in dispute was laid out wholly and exclusively for the purpose of the respondent's business because if the

(1) [19o6] A.C. 448, (3) [1923)] A.C. 1.45·

(2) (1914] 3 K.B. 674. (4) [1955] A.C. 21.

(5) [1953] 2 All E.R. 1122.

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'96° - . . ommissioner b

supply of jockeys of efficiency and skill failed the business of the respondent would no longer be possi- le. Thus the money was spent for the preservation

.

Th C e of Income-tax West Bengal' of the respondent's business.

v.

As to the third point there is no substance in the Royal Calcutta submission that the expenditure was in the nature of a capital expense because no asset of enduring nature

Turf Club Kapur J. was being created by this expense.

In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respon dent's business. It was to prevent the threatened In the extinction of the business of the respondent. result this appeal is dismissed with costs.

Appeal dismissed.

November ag.

K. R. C. S. BALAKRISHNA CHETTY & SONS & CO. v. THE STATE OF MADRAS (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)

Sales Tax - Claim of exemption. by licensee-If conditional upon observance of conditions and restrictions-Ma4J'as General Sales Tax Act, I939 (Mad. IX of z939), s. 5.

The appellants, who were dealers in Cotton yarn, obtained a license under the Madras General Sales Tax Act, 1939 (IX of 1939). Section 5 of that Act exempted such dealers from pay ment of sales tax under s. 3 of the Act subject to such restric tions and conditions as might be prescribed, including the condi tions as to licenses and license fees. Section 13 required a licen see to keep and maintain true and correct accounts of the value of the goods sold and paid by him. Rule 5 of the General Sales Tax Rules provided that any person seeking exemption under s. 5 of the Act must apply for license in Form 1 which made the license subject to the provisions of the Act and the rules made thereunder. The appellants on surprise inspection were found to maintain two separate sets of accounts, on the basis of one of which they submitted their returns and the other