Commissioner of Income-tax, Bombay v. Abdullabhai Abdulkadar

2 S.C.R. SUPREME COURT REPORTS 949 COMMISSIONER OF INCOME-TAX, BOMBAY _I960_ _December_ 6. _v._ M/S. ABDULLABHAI ABDULKADAR ##### (J. J.,. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.) _Income-tax-.,Commission Agent's liability to_ _pay for non-resi-_ _dent_ _principal-Test of dediJctible_ _business_ _loss-Indian Income-tax_ _Act,_ _r922_ (II _of r922),_ _SS._ IO(I), I0(2)(xi), _42(I),_ _43._ _Income-tax-.,Commission Agent's liability to_ _pay for non-resi-_ _dent_ _principal-Test of dediJctible_ _business_ _loss-Indian Income-tax_ ... #### .. ·"" The respondent was a registered firm carrying on business as commission agents, and for the purpose of income-tax it was treated as the agent of a non-resident principal doing business outside India. Under s. 42(1) of the Indian Income-tax Act the respondent was deemed to be the assessee and had to pay Rs. 3,78,491 as income-tax on behalf of the non-resident principal. After allowing for the amounts lying with the respondentfirm the account of the non-resident principal showed a debit balance of Rs. 3,20,162. The respondent treated this amount as a bad debt and claimed it as a deductible loss. The Incometax Officer and the Appellate Assistant Commissioner disallowed the respondent's claim but the Income Tax Appellate Tribunal held it to be an allowable deduction being a bad debt incurred as a result of the respondent's business activities with the non resident principal. The High Court treating the amount as a deductible business loss incurred by the respondent affirmed the decision of the Income-tax Tribunal. On appeal by the Commissioner of Income-tax, _Held,_ that the respondent was not entitled to the reduction claimed by it. The liability to pay imposed upon it under s. 42(2) of the Income-tax Act did not arise directly from the carrying on of the business nor was it incidental to the busine.ss. The loss was not a commercial loss incurred in the respondentfirm's own business but it arose out of the business of another person and that was not a permissible deduction within s. 10(1) or s. 10(2)(xi) of the Act. _Gresham_ _Life Assurance Society_ v. _Styles,_ (1892) 3 T. C. 185 (H. L.), referred to. _Commissioner of Income-tax_ v. _Sir S. M. Chitnavis,_ (1932) L. R. 59 I. A. 290, followed. _Badridas_ _Daga_ v. _Commissioner of Income-tax,_ [1959] S.C.R. 69oand _Curtis_ v. _]. and_ _G._ _Oldfield, Ltd.,_ (1925) 9 T. C. 319, discussed. _Lord's Dairy Farm Ltd._ v. _Commissioner_ _of_ _Income-tax, Bom-_ _bay,_ (1955} 27 I.T.R. 700, _Calcutta_ _Co.,_ _Ltd._ v. _Commissioner_ _of_ _Income-tax,_ [1959] 37 l.T.R. l and _C.I.R._ v. _Hagart and Burn_ _Murdoch,_ [1929] A.C. 386, not applicable. uo _**Cpmmissione, oj**_ 950 SUPREME COURT REPORTS **[1961)** CryIL APPELLATE JURISDICTION: Civil Appeal No. 312 of 1959. _Income-tax,_ Appeal from the judgment and order dated August _Bombay_ 23, 1956, of the Bombay High Court in Income-tax _M_ /s. A~dullabhai Reference No. 21 of 1956. _Abdulhadar_ _Hardyal Hardy_ and _D. Gupta,_ for the appellant. _A._ _V._ _Viswanatha Sastri_ and _I. N. Shroff,_ for the respondent. I jl! 1960. December 6. The Judgment of the Court was delivered by _Kapur._ _J._ KAPUR, J.-This is an appeal by special leave brought by the Commissioner of Income-tax against the judgment and order of the High Court of Bombay answering the question in favour of the assessee. The question referred by the Tribunal was : "Whether on the facts and in the circumstances of the case the amount of Rs. 3,20,162 is an allowable deduction under Section 10(2)(xi) or 10(2)(xv) of the Income-tax Act?" which was amended by the High Court as follows : "Whether on the facts and in the circumstances of the case the amount Rs. 3,20,162 is an allowable deduction" and was answered in the affirmative and against the appellant. The facts of the case shortly stated are these: The respondent is a registered firm carrying on business as . commission agents. It was treated as the agent of a non-resident principal Haji :i\fohamed Syed Al Barbari of Port Sudan (hereinafter referred to as the 'non-resident principal'). It was carrying on the business of export of cloth and kariana (i.e., miscellaneous goods) to Aden, Saudi Arabia and Sudan. It used to supply goods from India to the non-resident principal, who on his part, was sending cotton to the respondent and other merchants for sale in India. For the years 1942-43, 1943-44, 1944-45 and 1945-46, the respondent firm was treated as the agent of the nonresident principal under s. 43 of the Income-tax Act ## .. #### • # . .. #####,, i 2 S.C.R. SUPREME COURT REPORTS 951 (which will hereinafter be termed 'the Act') for ·the _r96o_ :-·-:P [urpose ][of ][income-tax ][and ] [Excess Profits Tax. The ] . _[c ]_ _**ommissione1 o**_ _1_ respondent firm had to pay m all Rs. 3, 78,491 under _Income-tax_ s. 42(1) of the Act and after allowing for the amounts _Bombay_ ' which were in its hands the account of the principal v. non-resident showed a debit balance of Rs. 3,20,162. _M/s._ _Abdullabhai_ For the year of assessment, 195f3-54, the respondent _Abdulkadar_ firm treated this amount as a bad debt and claimed it _[(apur_ _J._ as a deductible loss to be set off against profits. The Income-tax Officer treating this claim as one under s. 10(2)(xv) of the Act, disallowed it. The Appellate Assistant Commissioner treated it as one under s. 10 (2)(xi) of the Act and he also disallowed it. On appeal to the Income-tax Appellate Tribunal it was held to be a bad debt and an allowable deduction as it was incurred as a result of the business activities which the respondent firm was carrying on with the nonresident principal. At the instance of the Commissio. ner of Income-tax, the case was stated to the High Court and the High Court modified the que_stion and answered the same in the affirmative, i.e., against the appellant. The High Court held that as the law imposed an obligation upon the respondent firm to discharge the liability and it was incidental to the business of the respondent the amount was a deductible loss; and even if it was not a debt, then also the amount could be claimed by the assessee as a business or trading loss, because in arriving at the true profit of the respondent's business that loss had to be deducted. The High Court thus applied s. 10(1) of the Act to the amount claimed by the respondent. The allowability of the amount in dispute depends upon the nature of the liability imposed upon the respondent firm. The contention of the respondent's counsel was that it was carrying on foreign trade and had dealings with a foreign merchant and in the course of the business there were imports and exports and therefore the inter-connection between the respondent firm and the non-resident principal was so intimate as to invite the application of s. 42(1), i.e., the establishment of agency as contemplated in that section. The liability to pay arises under s. 42(2) which provides : 952 SUPREME COURT REPORTS [1961] _1960_ "Where a person not resident or not ordinarily . . _f_ resident in the taxable territories carries on business _C_ _**ommsss1oner**_ _o_, h "d . . . _Income-tax_ wit a person res1 ent m the taxable territories, and _Bombay_ ' it appears to the Income-tax Officer that owing to the v. close connection between such persons the course of _M/•._ Aba#llabhaibusiness is so arranged that the business done by the _Abdulkodar_ resident person witJi the person not resident or not _Kapur_ _1._ ordinarily resident produces. to the resident either no profits or less than the ordinary profits which might be expected to arise in that business, the profits derived therefrom or which may reasonably be deemed to have been derived therefrom, shall be chargeable to income-tax in the name of the resident person who shall be deemed to be, for all the purposes of this Act, the assessee in respect of such income-tax." Relying on this provision it was argued that the nature of the respondent's business was foreign trade which was inter-connected with the business of the non-resident principal. Its nature was such as to attract the imposition of liability on the respondent firm under s. 42(2) of the Act and therefore the loss so incurred must be taken to be incidental to and arising out of the business of the respondent. "The thing to be taxed", said Lord Halsbury, L. C., "is the amount of profits and gains. The word 'profits' I think is to be understood in it8 natural and proper sense-in a sense which no commercial man would misunderstand": _Gretiham_ _Life Assurance Society_ _v._ _Styles_ ('). Hence even if a deduction is not specifically enumerated in sub-section (2) of s. 10 it would still be a debitable item to reflect the taxable profits. The Privy Council in _Commissioner of Income-tax v._ _Sir_ _S. M. Ghitnavis_ ( [2] ) held that the Act nowhere authorises the deduction of bad debts of a business, such a deduction is necessarily allowable because what is chargeable to income-tax in respect of a business are the profits and gains of a year and in assessing the amount of profits and gains of that year account must necessarily be taken of all losses incurred, otherwise true profits and gains cannot be ascertained. In order ###### • ... (1) (1892) 3 T.C. 185, 188 1H.L.). (2) (1932) L.R. 59 I.A. 290, 296. 2 S.C.R. SUPREME COURT REPORTS 953 that a. loss may be deductible it must be a. loss in the _r9io_ business of the assessee and not payment relating to _c_ -. -. . . . h . _**01nmissiontt o**_ _1_ the busmess of somebody else which under t e prov1- _Income-tax_ sions of the Act is deemed to be and becomes the liabi- _Bombay_ lity of the assessee. The loss becomes allowable if it v. "springs directly from and is incidental" to the busi- _M /s._ _Abdullabhai_ ness of the assessee. The decision therefore mainly _Abdulkadar_ depends upon whether the loss claimed is a business _Kapur_ _J._ loss of that nature. In our opinion the amount which became payable by the respondent firm cannot be called its business loss. In order to be deductible the loss must be in the nature of a commercial loss and, as has been said above, must spring directly out of it and must reaMy be incidental to the business itself. It is not sufficient that it falls on the trader in some other ca.pa.city or is merely connected with his business. Counsel for the respondent relied upon a Judgment of this Court in _Badrid,as Daga_ v. _The Commissioner_ _of Income-tax_ (1). In that case an agent of the assessee engaged for the purpose of carrying on of the assessee 's business hf.1.d authority to operate a bank account. Acting under such authority the agent withdrew from the bank monies and put them to his personal use. The assessee was able to recover from the agent only a pa.rt of the amount misappropriated and the balance was written off as irrecoverable debt and it was held that it was not allo'"'.able under s. 10(2Xxi) or 10(2)(xv) of the Act but it was a loss deductible in computing the profits under s. 10(1) of the Act as a loss inciden tal to the carrying on of his business. Counsel relied on the following observation of Venkatarama Ayyar, J., at p. 695: "The result is that when a claim is made for a deduction for which there is no specific provision in s. 10(2), whether it is admissible or not will depend on whether having regard to accepted commercial practice and trading principles it can be said to arise out of the carrying on of the business and to be incidental to it." That passage has to be read in the circumstances of (1) [1959] S.C.R. 690. 954 SUPREME COURT REPORTS (1961) _'9_ _[60 ]_ that c11-se where the employment of agents was inci _Commissioner_ _of_ dental to the carrying on of the business and it was _In,ome-tax,_ observed that it logically followed that the losses _Bombay_ which were incidental to such employment were also v. . incidental to the carrying on of the business. At _M /s._ _Abdullabha•_ page 696, it was observed: _Abdulkadar_ "At the same time it should be emphasised that _Kapur_ _J._ the loss for which a deduction could be made under s. 10( 1) must be one that springs directly from the carrying on of the business and is incidental to it and not any loss sustained by the assessee, even if it has some connection with his business." Reference may also be made to an English decision in _Curtis v._ _J. &_ _G._ _Oldfield Ltd._ ( [1] ). In that case the managing director of a company of wine and spirit merchants embezzled monies of the company and that was claimed as-a loss as a bad debt and it was held that it was not a trading loss and was therefore not an admissible deduction. In that case the contention of the Crown was that the sum was not an ordinary trading debt and therefore could not be a bad debt and that the loss was not connected with and did not arise out of the. trade. Rowlatt, J., said at p. 330: "When the Rule speaks of a bad debt it means a debt which is a debt that would have come into the balance-sheet as a trading debt in the trade that is in question and that it is bad. It does not really mean any bad debt which, when it was a good debt, would not have come in to swell the profit." In the present case the liability was imposed upon the respondent firm because it was treated as an agent within the meaning of s. 42(1) of the Act and the liability was imposed because of the deeming provision in sub-s. (2) of s. 42 of the Act. Can it be said, in the present case, that the liability imposed upon the respondent firm was a business debt arising out of the business of the respondent or to use the words of Venkatarama Ayyar, J., "springs directly from the carrying on of the business and is incidental to it or is a trading debt in the business of the respondent firm." As we have said above, that condition has not (I) (1925) 9 T.C. 319. 2 S.C.R. SUPREME COURT REPORTS 955 been fulfilled and the loss which the respondent _r960_ has ihcurred is not in its own business but the _c_ . . . . f h b . f h _**ommissioner o**_ _/_ liab1hty arose because o t e usmess o anot er _Income-tax,_ person and that is not a permissible deduction within _Bombay_ s. 10(1) of the Act. It is not a loss which has to v. be deducted in respect of the business of the respon- _M/s. Abdullabhai_ ~. dent from the profits and gains of the respondent's _Abdulkaaar_ business. _Kapur_ _]._ Counsel for the respondent also relied on _Lord's_ _Dairy Farm Ltd._ v. _Commissioner of Income-tax, Bom-_ _bay_ ( [1] ). That was a case of embezzlement by an employee and it was held that the loss directly arose from the necessity of employing cashiers and therefore the loss by embezzlement was a trading loss but in that very case it was held that before a claim could be made for deduction of a debt as bad debt it must be a debt in law. That case is not applicable to the facts of the present case and is of little assistance in the decision of the question before us. Counsel for the respondent next relied on _O<ilcutta_ _Go.,_ _Ltd._ v. _The Commissioner_ _of Income-_ _tax_ (g). It was held in that case that the expression "profits and gains" has to be understood in its commercial sense and that there could be no computation of profits and gains uhtil the expenditure necessary for earning those profits and gains is deducted therefrom and that when there is no specific provision in s. 10(2) in regard to claim made, ·its allowability will depend on accepted commercial practice and trading principles and it will be allowed if it can be said to arise out of the carrying on of the business and is incidental to it. As a principle it is unexceptionable but it does not carry the matter any further. It was next contended that the matter falls within s. 10(2)(xi) of the Act, i.e., it is in r~spect of the business. This contention has even less substance than the claim of deduction under s. 10(1). Under cl. (xi) also a debt is only allowable when it is a debt and ~rises out of a~d as an incident to the trade. Except m money-lendmg trade debts can only be so described (1) [1955] 27 I. T.R. _700._ (2) [1959] 37 I. T.R. l. 956 SUPREME COURT H,EPORTS [1961] ### • .... _•y6o_ if they are due from customers for goods supplied or . . _**ommsssiofier**_ _o_ _/_ [loans ] I [to ][constituents or transactions ] h . [of ][a similar kind. ] b _Income-ta•_ n every case t e test is, was the de t due as an _Bombay_ ' incident to the business; if it is not of that character . . _C_ _v._ it will be a capita.I loss. Thus a loan advanced by a _M /s._ _Abd«llabhai_ firm of Solicitors to a company in the formation of _Abdulkad••_ which it acted as legal adviser is not deductible on its _Kapu•_ _J._ becoming irrecoverable because that is not a part of the profession of a Solicitor: _C._ _I._ _R._ v. _Hagart_ &: _Burn Murdoch_ ( [1] ). In our opinion the High Court was in error in answering the question in favour of the respondent. We therefore allow this appeal, set aside the judgment and order of the High Court and answer the question against the respondent. The appellant will have his costs in this Court and in the High Court. _Appeal_ _allowed._ _**z960**_ _**Dece1nber 6.**_ COMMISSIONER OF INCOME TAX, SIMLA HOSHIARPUR ELECTRIC SUPPLY CO. _v._ (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.) _Income Tax-Assessee's_ _receipts_ _for installing_ _new_ _electricity_ _installations-If "Profit"_ _or capital-Indian Electricity Act, I9IO_ (9 _of I9IO),_ _Schedule_ _c._ _6 (I)(b)-Intlian Income-tax Act,_ _x9n_ (II _of x922),_ s. 66(r). The assessee, an electricity supply undertaking, received **certain sum of money for** **new service connections granted to its** customers. Part of this amount was spent for laying mains and service lines. The Income-tax Officer treated the entire amount as trading receipt. In appeal the Appellate Assistant Commisner excluded the cost of laying service lines and the mains and treated the balance as taxable income. The Appellate Tribunal agreea with the Appellate Assistant Commissioner and held that the service connection receipts were trading receipts and the "profit element" therein was taxable income in the hands (t) [1929] A.C. 386; (1929) 14 T.C. 43~·