KESHAV MILLS LTD versus COMMISSIONER OF INCOME-TAX, BOMBAY

Bvse J.-In

p. 951

that By Fnll Conrt.-The to Subramaniyan Chettiar Commissioner of Income·tax Ahmed Din Alladitta Commissioner of Income-tax, P1mjab

p. 951

Kanwal Naya" Ha·mir Singh Commissioner of

p. 951

Ajmer-iYierwara Commissioner of tax Singari Bai

p. 951

B. Kamdar, In Pondicherry Railway Commissioner of Income·tax Commissioner of Income-tax v. Mathias I.A. Comrnissioner1Jf Income-tax v. Kameswar Singh I.T.R. Commissionei· of Income-tax

pp. 951–952

Mehta I.T.R. 521) referred to.

p. 952

CtVIL APPELLATE JURISDICTION: Civil Appeal ~rNo. 151 of 1951.

p. 952

Appeal from a Judgment and Order dated 14/15th September, 1949, of the High Court of Judicature at Bombay (Chagla C.J. and Tendolkar J.) in Income-tax Reference No. 2 of 1949.

p. 952

R. J. Kolah and N. A. Palkiwalla for the appellant.

p. 952

C. K. Daphtary, Solicitor-General for India (P.A. Mehta, with him) for the respondent.

p. 952

1953. January 30. The judgment of Mehr Chand Mahajan J., Das J. and Bhagwati .J. was delivered by Bhagwati J. Bose J. delivered a separate judgment.

p. 952

BHAGWATI J.-This is an appeal from the judgment and order of the High Court of Judicature at Bombay upon a reference by the Income-tax Appellate Tribunal under Section 66 ( 1) of the Indian Income-tax Act, 1922, whereby the High Court upheld the decision of the Appellate Tribunal that two amounts of Rs. 12,68,480 and Rs. 4,40,878 were the sale proceeds of goods sold by the appellant to merchants in British India, were received in British India and were liable to income-tax in British India.

p. 952

The appellant is a company registered in the Baroda State, as it then was, prior to its merger with India. It manufactmes textile goods in Petlad in the Baroda State and after the goods are manufactured they are sold by the company ex-mills. The company employs Messrs. Jagmohandas Ramanlal & Co. as guaranteed brokers. That firm guarantees the sale price of goods sold by the company ex-mills to the purchasers from Ahmedabad and receives commission as consideration for the guarantee and the work which it does for the company. The company is a non-resident and its accounts are maintained according to the mercantile system.

p. 952

In the assessment year 1942-43 (the previous year being the calendar year 1941) the total sales of the goo d b s y t e company amounte to Rs. 29,68,808. h d In making the assessment on the company for that assess- . ment year the following three amounts were considered for the purpose of determining the company's liability to British Indian tax.

p. 953

(a) Sale proceeds recovered through Messrs. Jagmohandas

p. 953

Ramanlal & Co. Rs. 12,68,480 (b) Sale proceeds through British Indian banks and shroffs re· ceived by means of drafts or hundies drawn by the company Rs. 4,40,878 (Railway receipts handed over to British Indian merchants by

p. 953

the banks on payment).

p. 953

( c) Sale proceeds received by cheques on British Indian banks and hundies on British Indian shroffs and merchants, and collected by the banks and shroffs Rs. 6,71,735

p. 953

Total Rs. 23,81,093

p. 953

As regards item(a)the company debited the account of the firm of Messrs. Jagmohandas Ramanlal & Co. with Rs. 13,41,744 which represented sales made by the company to merchants ofAhmedabad whose payments were guaranteed by that firm, and credited the sales account with the amount of the bills. }fossrs. Jagmohandas Ramanlal & Co. collected the amounts of the bills from the merchants at Ahmedabad and credited the sums recovered in the company's accounts with banks and/ or shroffs at Ahmedabad and also made disbursements under instructions of the company to the creditors of the company in British India. All these payments were credited by the· company to the account of Messrs. Jagmohandas Ramanlal & Co. and during the relevant accounting year the company thus received Rs. 12,68,480 agai115t the total debits of Rs. 13,41,744.

pp. 953–954

As regards item (b) the eompany received Rs . 4,40,878 by drawing hundies or drafts for the amounts of its sales bills (including the forwarding charges and f 't th ·n ~premises · t h · t e cost o trans1 _rom e m1 o t e station on the merchants m favour of recognised banks and shroffs in British India, by sending the same to those banks or shroffs with the railway receipts duly endorsed in favour of the merchants and by instructing the banks or shroffs to recover the amounts including the costs of transmitting the same to them. The amounts of these sales bills were debited by the company to the accounts of the respective merchants and credited to the sales a.ecount and the sums recovered by the banks or shroffs from the merchants in British India against the delivery of the relative railway receipts were on receipt of the same by the company credited to the accounts of the respective merchants in their books of account.

p. 954

As regards item (c), the company received Bs. 6,71,735 from the merchants by cheques and hundies drawn on banks and shroffs in British India in favour of the company. These cheques and hundies were negotiated by the company in Petlad and sent back for credit to its accounts with those banks and shroffs. The said cheques and hundies were cashed in British India and the sale proceeds remitted by the banks and shroffs to the company. The amounts of the sales bills were debited to the accounts of the merchants in the books of the coml)any when the goods were invoiced to the merchants and these accounts were credited with the moneys thus received by the company from the merchants.

p. 954, margin H

'l'he Income-tax Officer brought to tax the profits derived by the company represented by the said three items in the assessment year on the basis that the sale proceeds having been received in British India the profits were received in British India. The Appellate Assistant Commissioner on appeal held that profits from items (a) and ( c) were exempt from British Indian tax while thos!l represented by item (b) were rightly taxed. The Department filed an appeal to the Appellate Tribunal against the decision of the Appellate Assistant Commissioner in regard to items (a) and (c) and the company filed an appeal in respect of item (b ). The Appellate Tribunal held in regard to item (a) that the merchants in British India were not absolved either in law or in-fact from their responsibility to pay to the company its dues by virtue of the debit entries in the accom1t of Messrs. Jagmohandas Ramanlal & Co. and in regard to item (b) that the payment of the amounts dne was a condition precedent to the delivery of goods by the banks in British India on behalf of the company. The Tribunal therefore held that profits arising from items (a) and (b) were rightly subjected to tax. As regards item (c) the Tribunal held that Rs. 6,71,735 "were received by the assessee company directly from the merchants in British India by chequesandhundies drawn on banks and shroffs in British India in favour of the company but were negotiated in Petlad and sent for credit to the company's account. The amounts were received at Petlad and once they were received there, they could not be held to have been received again in British India ".

pp. 954–955, margin H

The Department asked the Tribunal to refer to the High Court the question of law arising on item ( c) and the company asked the Tribunal to refer to the High Court the question of law arising on items (a) and (b) and the Tribunal therefore referred the following question of law to the High Court:--

p. 955

" Whether on the facts and in the circumstances of the case, the sums of Rs. 12,68,480, Rs. 4,40,878 and Rs. 6,71,735, or any of them, which, represents receipts by the assessee company of its sale proceeds in British India, include any portion of its income in British India ? "

p. 955

The High Court held that Rs. 12,68,480 were received in British India and included the profits and gains of the business of the assessee company. It held t,hat Rs. 4,40,878 also were received in British India and the company was liable in respect of that amount. In regard to the item of Rs. 6,71,735, the High Court found that the facts stated by,· the Tribunal were not sufficient to enable it to reach a decision and therefore directed that the Tribunal should submit a supplementary statement of case setting out the several aspects set out in the judgment. 'l'he High Court reframed the question in regard to the two items of Rs. 12,68,480 and Rs. 4,40,878 in the manner following:-

pp. 955–956

(1) ·whether the sums of Rs. 12,68,480 and Rs. 4,40,878 were sale proceeds of the goods sold by the assessee to merchants in British India or were debts due by the said merchants?

p. 956

(2) Whether if they were sale proceeds, they were received in British India ?

p. 956

and answered them by stating that they were sale proceeds and they were received in British India. There was also a third question which was comprised in the reference and that question was framed as under:-

p. 956

Whether the profits of the assessee's business are included in the sums of Rs. 12,68,480 and Rs. 4,40,878 ?

p. 956

This question was also answered by stating that they were included in these two sums. The company obtained leave from the High Court to appeal against the decision in regard to the two sums of Rs. 12,68,480 and Rs. 4,40,878 and hence this appeal.

p. 956

It is common ground that the company is a nonresident and its accounts have been regularly kept according to the mercantile system. Its balance sheets were also prepared on that basis. The company was assessed to tax in British India on the basis that these two sums of money were received in British India by or on behalf of the company. In regard to the item of Rs. 12,68,480, even though the amounts of the sales bills were in the first instance debited by the company in its books to the account of Messrs. Ja,gmohandas Ramanlal & Co, the sale proceeds in accordance with the terms of the sales hills were pitid by the respective merchants to -Yiessrs. J agmohandas Ramanlal & Co. in British India and were either credited bv Messrs. • Tagmohandas Ramanlal & Co. in the comp~ny's accounts with banks or shroffs in British India or were . b d b h . d . h h . . l urse y t em m accor ance wit t e mstruct10ns of the company in British India. In regard to the item of Rs. 4,10,878 even though the amounts of the sales bills were debited in the first instance by the company to the accounts of the respective merchants in the books of account at Petlad the relative railway receipts were sent by the company to banks or shroffs in British India together with drafts or hundies in connection with the same with instructions that deliverv of the railway receipts should he given to the respective merchants against payment and the amounts of the s<tles bills were thus paid by the respective merclrnn ts to the banks or shroffs in British India and were tmtrnmitted under the instructions of the company by the banks and shroffs in British India to the company at Petlad. Prima facie therefore the amounts of the sales bills in both the citses whether they were paid to )fo,:irn .. fagmohandas Ranmnlal & Co. or to the banks or Rhroffs through \1·hom the railway receipts were negotiated were paid by the mercha1its in British India and were received by Messrs .. Tagrnohandas Ramanlal & Co. and the banks or shroffs on behalf of the company in British Indin. The receipt of these itmounts thus fe!l within section 4 (1) (a) of the Act and the profits or gains of this business thus were received in British India by or on behitlf of the company.

pp. 956–957

The company however sought exemption from liability to tax on the grounds (a) that the accounts of the company were kept on the mercantile or book profit basis under which the accrual of profit as shown in the account was the criterion of taxability and section 4(1) (a) had no application at all; (h) that it was obligatory on the authorities under section 13 of the Act to accept that systPm of maintaining accounts except under the proviso to that section and that the method of computation there was made the very basis of chargeability and section 10 read with section 13 operated to save these amounts from chargeability and

pp. 957–958, margin C

d ' d (c) that the amounts having been treate as receive when credit entries were made in the books of account, and chargeability having crystallised on the date when the income accrued or was treated as received, there was no further scope for a charge when the amounts were su bsequentl.Y actually· received and the subsequent handling of the amounts by the company and the receipt thereof in British Indir1 were of no consequence.

p. 958

The mercantile system of accounting or what is otherwise known as the double entry system is opposed to the cr1sh system of book keeping under which record is kept of actual cash receipts and actual cash payments, entries being made only when money is actlrnlly collected or disbursed. That system brings into credit what is due, immediately it becomes legally due and before it is actually received and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed. The profits or gains of the business which 'are thus credited are not realised but having been earned are treated as received though in fact there is nothing more than an accrual or arising of the profits at that stitge. They are book profits. Receipt being not the sole test of chargeability and profits and gains that have accrued or arisen or are deemed to have accrued or arisen being also liable to be charged for income-tax, the assessability of these profits which are thus credited in the books of account arises not because they are received but because they have accrued or arisen.

p. 958

Mr. Kolah appearing for the company drew our attention to the following cases:~ ·

p. 958

Subramaniyan Chettiar v. Commissioner of Incometax('), Ahmed Din Allad-itta v. Commissioner. of In· come-tax, Punjab('), Kanical Nayan Hnmir Singh v. Commissioner of Income-tax, Ajmei<Merwara(') and Cornmissioner of 1 ncome-tax v. Shrimati Singari Bai(').

pp. 958–959

The assessees there were all residents in British India and maintained their books of account according to the mercantile system. Except in the case of Commissioner of Income-tax v. Singari Bai(') where the assessment was in respect of the total ineome or profits, stray items of income treated as received in British India were sought to be charged for tax and they were all assessed for tax not on the basis of actual receipts in British India but on the basis of their having accrued or arisen in British India. The cases were decided with reference to the law as it stood before the amendment in 1939 which under seution4(1) rendered liable to tax all income, profits or gains from whatever source derived, accruing or arising or received in British India or deemed under the provisions of the Act to accrue, arise or to be rec~iYed in British India. The question that arose for the determination of the courts was whether under the mercantile system, profits which were credited in the books could be taxed even though they had in fact not been received and the conclusion reached by the courts was that these profits credited in the books of account were earned and could be charged as having accrued or arisen within British India even though they were in fact not received. In none of these cases were the courts concerned with a non-resident claiming to have received profits or gains outside British India under the mercantile system of accounting and claiming exemption from liability to tax under section 4 (1) (a) in respect of profits actually received in British India.

p. 959

It follows from the above that the mercantile system of accounting treats profits or gains as arising or accruing at the date of the transaction notwithstanding the fact that they are not received or deemed to be received and umler that system, book -profits are assessed as liable to tax. lf an assessee therefore regularly adopts the mercantile system of accounting he would be liable to tax on the profits thus credited by him in his books of account subject to all deductions for bad debts as provided in section 10' (2) (xi). Section 4 (1) (a) has nothing to do with this basis of tax-

pp. 959–960

ation. Section 13 which is an integra part oft te comofputation of the total income of the assessee and is compulsory on the income-tax authorities as well when computing the total income (vide section 2 (15) ) does not lay down ri,ny exemption from liability. It only sets up a mode of computation of the income which is liable to assessment and imposes upon the income-tax authorities an obligation to accept the mode of accounting regularly adopted by the assessee except in the cases where the proviso to that section comes into operation. The profits earned and credited in the books of account being thus taken tts the basis of computation, the system of accounting postulates the existence of debts in so far as moneys remain due and payable by the parties to whom they have been debited and when it is realised that these debts are not recoverable the assessee gets a deduction fdr the bad debts under section 10 (2) (xi). This however does not mean that the transaction it has been recorded in the books of account under the mercantile system of accounting or the double entry system is metamorphosed or the relationship between the parties assumes a different character. What was in its inception a transaction of sale and purchase is not converted into another transaction as between creditor and debtor. The relationship as between vendor and purchaser still subsists and there dues not come into existence a new relationship as between creditor and debtor with all its necessary consequences. The transaction as it has been recorded in the books of account has got to be worked out to its fullest extent. _;\forely because the goods have been supplied and the price thereof has been debited to the purchaser the rights and obligations of the vendor and purchaser inter se arc not in any manner affected. The vendor is bound tu fulfil all his obligations under the contract and continues to be liable for all the consequences of his default including rejection of his goods by the purchaser or a claim for d1images for breach of wal'l'anty by him. The purchaser is equallv entitlec'l to reJ· ect the aoods or to claim the damages as on breach of warranty by the vendor and all these rights and obligations have got to be worked out in spite of the fact that the entries are made in the books of account by the vendor in ;1ccordance with the mercantile system of accounting adopted by him. The vendor could not say tha.t he is under no further obligation to the purchaser and that the purchaser must pay the price of the goods debitPd to him as a debt arising out of the book entry. The count in any action filed by the vendor against the purchaser would be a count for the price of goods sold <ind delivered and would not be a count on an assumpsit for recovery of a debt due by the debtor to him.

pp. 960–961

It is clear that under these circumstances there is no receipt of the moneys !Lt all, either actual or constructive, in cash or in kind, by actual payment or by adjustment or settlement of accounts. There is also no scope for the <irgurnent, that even though these sums ma v not be said to be either actuallv or constructively re~eived they should be "deemed to be received". The expression "deemed to be received" only meam; deemed by the provisions of the Act to be received. The phrase statutory receipt might be conveniently employed to cover income which is "deemed to be received'', and instances of such statutorv receipts are to be found in the provisions of the Ac:t,"e.g., section 18 (4), seetion 58 (E), section 58 (J) (3), section 7(2), section 16(1) (c) and sections 19 (2) (vii) and HJ(2). (See the observations of Beaumont ('.J. in Commissioner of lncorne-ta;c, Bombay v. New India Assw1·ance Co. Ltd.(1 ). An amount cannot be "deemed to be received" merely by the volition or sweet will of an indiYidual. In all the cases which we have mentioned above the profits earned which >rnre credited in the books of account according lo the mercantile system of accounting were at best "treated as having been received" which is neither "received" nor "deemed to be received" and therefore not within the purview of section.4(1) (a).

p. 961

If then profits which have Leen thus credited cannot be said to be received nor deemed to have been received when the entries were made in the books of account, the contention urged before us by Mr. Kolah that there could not be a second receipt of the amount in British lndia does not survive. [t is true that the words used in section 4(1) (a) rnlate to the first receipt after the accrual of the income. Once it is received bv the party entitled to it, in respect of any subsequent dealing with the said amount it cannot be said to be "received" as income on that occasion. [Per Kania J, in B. ;JI. Kamdar (1)J. The "receipt" of income refers to the first occasion when the recipient gets the money under his own control. Once an amount is received as income, any remittance or transmission of the amount to another place does not result in "receipt", within the meaning of this clause, at the other place. 'l'his was definitely established by the Privy Council in Pond-icherry Rail1cay Co. v. Commis8-ioner of lncome- 'J'ax (') :i,ml in Commissioner of Income-tax v. J.Vlathias ( If, therefore, the income, profits or gains have been once received by the assessee even though outside British India they do not become chargeable by reason of the moneys having been brought in British India, because what is chargeable is the first receipt of the moneys and not a subsequent dealing by the assessee with the said amount. In that event they are brought by the assessee as his own moneys which he has already received and had control over and they cease to enjoy the character of income, profits or gains.

p. 962

This ratio however does not apply to the facts of the present case before us. The moneys were neither received by the company nor could be deemed to have been received by it when the entries were made in the books of account at Petlad. They had merely accrued or arisen to it and so far as the receipt thereof is concerned they were first received in British India when \hey were received by Messrs. Jagmohandas Ramanlal z~. & Co. or by the various banks or shroffs in British India through 'whom the railway receipts were negotiated. The first receipt of the moneys was therefore when they were paid as such by the merchants to Messrs. J agmohandas Ramanlal & Co. or to the various banks or shroffs as above. W'hatever paid by the merchants to these several parties were the sale proceeds of the goods which had been sold and delivered by the company to them and they were received within the meaning of section 4 (1) (a) of the Act by these several parties on behalf of tho company in British India at the time when these payments were made by the merchants to them.

pp. 962–963

Mr. Kolah pressed into service the argument based on section 13 of the Act that the mercantilo svstem of accounting regularly adopted by the assessec \vas obliga.tory on the income-tax authorities for computation of his income. l'Vhile agreeing generally with that submission in case of residents, we doubt whether that position would be available to a non-resident, who maintains his books of account outside British India according to the mercantile system. The section would only be relevant where the total profits of the assessee have to be computed, in which event he would be entitled to claim that they should be computed according to the syHtem of accounts maintained hy him. But the section would hardly be relevant where stra.y items of income are caught iu taxable territories as received in taxable territories by a non-resident. The entries in the present ease were put in merely to prove that the sale proceeds were received outside British India where the entries were made. That contention however could not be sustained, as section 4 (1) (a) is concerned with cases of actual receipt and not with cases of paper receipts.

p. 963

Having regard to the observations. made above we have come to the conclusion that the High Court was right in holding that the two sums of Rs. 12,68,480 and Rs. 4,40,878 wBre the sale proceeds of the goods sold and delivered by the appellant to merchants in British India, that they were received by Messrs, J agmohanclas Itamanlal & Co. and by the banks and shroffa through whom the railway receipts were nego· tiatecl, on behalf of the appellant in British lnclia, that they were liable to tax under section4(1) (a) of the Act as having been received in British India on its be· half, that there is nothing either in the facts and circumstances of 1ohe ease or in law why they should be exempted from such liability, that the a.nswers given to the questions which were ultimately considered by the High Comt were correct, and the appellant was rightly held liable for the tax on these two amounts subject to all just deductions and allowances. The appeal therefol'e fails and must stand dismissed with costs.

pp. 963–964

Bo.SE, J.-I respectfully disagree.

p. 964

Section 3 of the Indian Income·t8~x Act provides that the "total income" is to be charged in accordance with the provisions of the Act. We have therefore to see what "total income" means.

p. 964

"Total income" is defined in section 2(15). It means (not" inclmles" but means) the total amount of income, profits and gains "referred to in sub-section (I) of section 4 computed in the manner laid down in this Act." Then-fore, the computation of all income referred to in section 4( 1) has to be "in the manner laid down in the Act ".

p. 964

Section 4 (apart from the provisos and explanations) is divided into three clauses, (a), (b) and (c). Clause (b) deals with residents and (c) with non-resident5. As (a) is general, it is legitimate to infer that it refers to both. Therefore, the words "received" and "deemed to be received " must be constrned in tho same sense in both cases except of course where it is otherwise provided in the Act, for sub-section (1) is made subject to the provisions of the Act.

p. 964

'N' ow the words "deemed to be received" can be exduded from consideration at once because I agree that they are confined, and are intended to he confined to what I may call the deeming sections in the Act., that is to say, to cases where the deeming must be clone under the express provisions of the Act. That leaves us with the wdrd "received" (I am of courne only dealing with section 4(1) (a) which deals with "receipts" and not with section 4( 1) ( c) which refers to "accruals" and "arisals" and to that which is deemed to "accrue" or ''arise").

pp. 964–965

Now this, in my opinion, is to be contrasted with the words "accrue" and "arise" which are used in clauses (b) and (c). Though there may be overlapping in some cases, I do not think the three are intended to mean the same thing. The Privy Council thought in Commissioner of Income-ta.r v. 1Jiathia8( that there is some variation in meaning between them and in Commissioner of Income-tax v. Chun-ilal B. Mehta(') they drew attention to the antithesis between "accruing and arising in" and "received in'', though they also said in the earlier case that there is not a complete disjunction between them and that they are not three mutually exclusive qualifications (page 56); that is, that there may be some overlapping in cert:i,in cases.

p. 965

Next, we turn to section 6 which divides the various sources of income under various heads for the purposes of computation and chargeability and states that each head shall be "chargeable" "in the manner hereinafter ppearing". It is to be observed that the word "shall" has been user! and not" may" thereby implying that there is no option in the matter. So far as business is concerned, the he:i,d is No. (iv) "Profits and gains of business etc."'

p. 965

That carries us on to sections 10 and 13 which P.rescribe the method of computation. Here again, the language is imperative and in the case of a business the method of computation has to be in accordance with the method of auuounting regularly employed by the assessee: Commissioner of Income-tax v. Kameshwar Singh(·).

p. 965

Now in the present case, the method of accounting was the mercantile system. The essential difference between this and the cash basis system is that in the latter actual receipts and disbursements'are taken into account. In the former, sums which are due to the

pp. 965–966

business are entered on the credit side immediately oJthey are legally due and before they are actually received and expenditures are entered the moment a legal liability to pay arises and before the actual clisbursements. The profit or loss at the encl of the accounting year is therefore based, not on a difference between ~hat was actually received and what was actually paid out, but on the difference between the right to receive and the liability to pay. I find it impossible in such a case to say that the taxation is on income, or profits and gains which were "received". It can only be on profits which ''accrued" or "arose" to the assessee in the accounting year: see the Privy Council in Feroz Shah v. Commissioner of Income-tax('). That, in my opinion, excludes section 4(1) (a) ttnd that in turn means that in such a case a resident is taxed under section 4(1) (b) and non-resident under section 4( 1) ( c ) .

p. 966

.N'ow, this to my mind is of vital importance. The primary object of the Income-tax Act is to tax and not merely to ascertain rm income. The computation of the income is subsidiary and is only for the purposes of ascertaining the quantum of the tax : see Goimnissioner of Income-tax v. Karne8hwar Singh('). Therefore, if the legislature chooses to lay down different methods of computation and say that the taxation shall be on the amount so computed, it is essential that these methods be adhered to. In some cases this may be to the advantage of the assessee and in others it may operate to his disadvantage. But that is immaterial.

p. 966

The importance lies in this. All that can be taxed in a given year are the profits and gains which are received or which arise or accrue in the " previous year", and if the Act directs that the profits are to bfil computed in a given case on "accruals" or "arisnls" and not on actual receipts it is essential that that done ; and it follows from that that the tax in such a case can only be on the accruals or arisals and not on the actual receipts, for clearly you cannot tax on that which you are forbidden to compute in a case where the tax can only be levied on \\·httt is computable under the Act.

pp. 966–967

It is important to draw the distinction for this reason. The rate of tax varies from year to year, therefore if the book profits which are dirPcted to be taxed in a given year are, say, Rs. 10,000 and the actual receipts only Rs. 100, it makes a lot of difference which figure is taken; nor does it even itself out in the long run, for if the rate of taxation inereases in th(' following year and the state of the \rnsiness is just the reverse, namely that the book profits ?,re only Rs. 100 whereas the actual receipts arising from the previous year's transiwtions are Its. 10,000, it will make a considern hie difference to the asses see in the aggregate of tax payable over the years, whether he pays on the basis of book profits or actual receipts in the two years.

p. 967

I am not able to draw di:;tinction between a resident and a non-resident in thrso matters. I can find no ground for holding that in the case of a resident the mercantile system must he adopted for computing the profits if that is the system of accounting regularly employed but that that need not be done in the case of a non-resident. If the assessee had been a resident company, the taxation would, in my opinion, have been under section 4(1) (b) on profits and gains which had accrued or arisen and not under section 4 (1) (a) on profits which had been received. The same principle must, in my opinion, be applied in the case of a non-resident and therefo1·e section 4 ( 1) ( c) is attracted, provided the profits and gains ha Ye actually accrued or arisen in the taxable ten-itorics or they can, because of section 42, he deemed to haYc accrued or arisen there. If section 4 (I) ( c) is not attracted, then the tax cannot be levied.

p. 967

Now, applying section 4 (I) (c), the question is where do the profits and gains arise or accrue in a casP like the present ? This is not free from. difficulty and various views have been, and can be, taken. But as these expressions have not been defined and as they are not words of art, I think they should be construed in their ordinary meaning which businessmen would ordinarily and easily understand in a business transaction. When goods are solcl it is to my mind evident that the profit or the loss on any particular transaction arises out of the sale, for until there is a sale there can be no profit. The profit may 1{ot be wholly attributable to the sale but that is <tnother matter. It is to my mind unquestionable that they arise, in part, at any rate, out of th0 sale. Therefore, ifthe goods are sold in the taxable territories, then, to my mind, the profits, or a portion of them, arise there. As the Privy Council pointed out in Commissioner of J ncome-la.J; v. Chimil1il 13. 1VI ehta(' ), in determining where the profits arise the place of the formation of the contract is not the sole criterion, other matters, as for example acts done under the contract are also material.

pp. 967–968

I am not here attempting to go behind the clecision of the Supreme Court to the effect that the place of sale is not necessarily the place of the receipt of the profits. I am construing the word "arise " and not "receive".

p. 968

That brings me to the next question, where were the goods in the present case sold? That is a mixed question of fact and law and must vary in each case and must, in my opinion, be answered in a commonsense way and not necessarily in the artificial manner laid down by the Sale of Goods Act to determine where and when the property passes. What are the facts here ? In the case of the Rs. 4 lakhs odd, the control over the corpus of thP goods was retained by the assessee right up to the moment the price was paid; and the price was paid not outside British India but to his nominees in this country, namely, to the assessee's banlrn in .British India. These banks retained the documents of title and had the right to refuse delivery until ,the money was actually handed over. Therefore, the right to get iiossession of the baoods and to take deliverv accrued or arose in British Indit1 where the money was actually paid, and that to my mind must be taken to be the place where the profits accrued and arose for income-tax purposes, not because the money was received there, for we are not concemed with actm1l receipts, but because the right which accrued at the date of the transaction was to receive the money in British India and hand over the goods there on the receipt of the money. As I haye said, the substance of the transaction must be viewed and that cannot be made to depend upon the method of book-keeping. Even if there are no books the profits on such a transaction would accrue in the place where the money is to be paid and the goods are to be handed oveT. I eannot see how that can alter by reason of the method of accounting employed. Accordingly, I agree that the method of accounting >1dopted by the assessee cannot affect the substance of the transactions between the parties or affect their nature. The rights and liabilities of the parties inter se cannot be made to depend on the way in which one of them chooses to keep its books. But that is not the case when we come to the question of taxation for income-tax purposes. There the method of accounting is vital. But even there the substance of the transaction must be viewed, for the substance cannot alter by a mere method of accounting. It is evident that if the assessee had been n>sident in British India and these transactions had ueen omitted from the books, the sums which ought to have been entered would be taxable as items which had escaped assessment even if there had been no actual receipts in that or in any following year. Therefore, it is not the entry in the books which attracts the taxation but the profits on the transaction itself, and when the mercantile system is used the profits arise when the right to receive them accrues and not when t.hc entry is made. 1f tho sys-tern is properly employed the e11try is made as soon as the ri~ht to receive the price arises and so for all practical purposes that is the date ordinarily referred to, lmt a man cannot manipulate the amount' of his tax by

pp. 968–970

h l choosing to enter or not to enter items w ic oug it to

p. 970, margin H

be entered on a particular date, as and when he of}Jleases.

p. 970, margin H

Now, the Rs. 4 lakhs odd represent actual receipts but that is not what is taxable when the computation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which ttrise out of these transactions do not, on my view, escape tax because the profits accrue or arise in the taxable territories. But the figure on which the tax is to be computed is not the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have not been given. I am of course assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were not, then the Income-tax authorities have power to tax income which, for one reason or another, has escaped assessment.

p. 970, margin H

Turning to the Rs. 12 lakhs. We know that the figure entered in the books relating to these transactions was Iis. 13,41,744. I am not clear whether that was entered in the accounting year with which we are concerned, though I gathered that that was the case. The actual receipts, which followed later, amounted to only Rs. 12,68,480. In my opinion, if anything is computable for the purposes of tax, it is the former figure (assuming all the entries arc in the accounting year) and not the latter. But in order to determine whether the profits on these transactions :ire taxable at all, we must examine the transactions.

p. 970, margin H

In these cases the sales were to merchants re~ident in Ahmedabad. But according to the assessee's affidavit,

p. 970, margin H

" In respect of buyers from Ahmedabad, the applicant Mills have no account of such buyers. The price is debited to the account of the said Jagmohandas Raml:11 and company and credited to the sales account in the books of the applicant:"

pp. 970–971, margin H

and later, Jagmohandas

p. 971

"discharges its debts by making payments to the applicants from time to time towards the balance in their said account in the books of the applicant Mills. The said amounts arc paid by the said firm by paying the same to the credit of the applicant Mills with British Indian banks or shroffs."

p. 971

Now, it is evident from this that Jagmohandas & Company do not merely guarantee payment by tho Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee company. So little do the buyers matter that their transactions are not even reflected in the accounts. All we have is Jagmohandas. It does not, in my opinion,' matter whether the actual buyers remained primarily and legally responsible to the assessee or not. The fact remains that in practice Jagrnohandas & Company actually met the obligations of the buyers and discharged their liabilities to the assessee. It is equally clear that Jagmohandas & Company must have recouped themselves in some way from the buyers. The question is how. If tho whole of the transactions occurred outside British India and the buyers or their agents went to Petlad and received the goods there and pa.id Jagmohandas & Company outside British India, thf'n I am clear that the profits and gains did not accrue or arise in British India, simply because the goods were ultimately brought there. But if Jagmohancbs & Company or their agents were paid in British 1ndia, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs c>Lse. If Jagmohandas & Company were the actual agents of the assessee as were the banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were not the agents in the strict sense of the term, then I am of opinion that section 42 would be attracted because at the very least there would be a "business connection", provided of course the payments were made in the taxable territories.

pp. 971–972

Now, here again, I am looking to what was actually done in order to determine what the rights were, for it is evident that what was done was done in pursuance of some agreement, express or implied, between the

p. 972

h 1 d h h parties w ic . agreement regu ate t eir rig ts, and those rights in turn determine the place where the profits accrued or arose, or must, because of section 42, be deemed to have accrued or arisen.

p. 972, margin H

In my view, the question referred by the Incometax Appellate Tribunal in its statement of the case does not reflect the trnc position because it concentrates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessee's income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what wou d have happened in circumstances which are not material in this case because of the mercantile system of accounting which was employed.

p. 972, margin H

As regards the High Court. The learned Judges reframed the question and answered it without sending the case back to the Income-tax Appellate Tribunal for a further statement of the case. That was not Htrictly proper. Hut, in my opinion, the reframed questions suffer from the same defect.

p. 972, margin H

In my opinion, the case should be sent back to the Income-tax Appellate Tribunal for a reframing of the questions along the lines I hnYe indicated and for a further statement of the case.

p. 972, margin H

Appeal di8missed. Agent for the appellants: Rajinder Narain. Agent for the respondents: G. H. Rajadhyaksha.

p. 972, margin H