ISDICTION Civil Appeal No 855 n of 1979
From the Judgment and Order dated 22nd October 1975 of the Bombay High Court in Special Civil Application No 985 of 1969
WITH Civil Appeal No 2665 of 1991
M Chander Sekhar Additional Solicitor General NP A Subba Rao and CV Subba Rao for the Appellants
RK Garg RP Singh Rakesh Khanna PC Kapur and Raj Kumar Gupta for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
In the field of mines and minerals the Government of India has two departments i Exploration Wing of the Indian Bureau of Mines IBM and ii Geological Survey of India GSI
The GSI is responsible for geological mapping and exploratory drilling calculated to delineate mineralised zones in the country
The IBM conducts detailed probing operations in selected blocks of mineralised areas
The functions of these two departments were found to be overlapping
The Government of India therefore decided to merge the Exploratory Wing of IBM with the GSI to eliminate overlapping works and rationalise the functions of the two departments
To accomplish this purpose different cadres of the Exploration Wing of IBM were merged with the GSI from different dates
There is no dispute that the posts concerned in these cases also came to be merged with the GSI
The question however for consideration is about the date of that merger whether it was from 1 January 1966 or from any subsequent date
The Government of India contends that the merger took place on 46 February 1969 while the contesting respondents claim that it was with effect from 1 January 1966
The dispute as to the date of merger has arisen because of the 896 following circumstances
That between the period from 1 January 1966 to 4 February 1969 thirty nine persons in the cadre of Lower Division Clerks belonging to GSI were promoted as Upper Division Clerks against the vacancies that arose in the GSI
They were apparently juniors to their counterparts in the IBM
Being aggrieved by the said promotions the Association of the Officers who originally belonged to the IBM preferred Special Civil Application No 98569 at Nagpur Bench of the Bombay of the Bombay High Court for setting aside the seniority list and for a direction to consider their cases of promotion with effect from 1 January 1966
It was contended before the High Court that the merger of the two departments took place with effect from 1 January 1966 and not from 4 February 1969 and therefore there cannot be two separate channels of promotions from 1 January 1966 one for the employees of the Exploration Wing of IBM and another for the employees of GSI
The Government of India sought to justify the promotions exclusively given to the Officers of GSI between the period from 1 January 1966 to 4 February 1969 on the ground that the actual merger took place not on 1 January 1966 but on 4 February 1969
the High Court however did not accept the submission of the Government of India
The High Court summarised its conclusion thus It is also to be noted that after 111966 the petitions did not get any promotion or were not considered for promotion by the Indian Bureau of Mines because they were treated under the administrative control of Geological Survey of India
If the contention of the respondents is accepted then it will have to be held that for three years the cases of the petitioners cannot be considered by the Geological Survey of India and they were not considered by the Indian Bureau of Mines because they were not under the administrative control of Indian Bureau of Mines
This will result into absurdity and therefore such a contention cannot be accepted
We are therefore inclined to hold on consideration of the annexures produced along with this petition that the merger in the two wings has taken place on 111966
Therefore the seniority of Upper Division Clerks will have to be considered and made in this light after taking into consideration the fact that the petitioners merged and became the part of Geological Survey of India on 111966 and therefore for the purpose of counting their seniority their past service rendered with the Indian Bureau of Mines will have to be treated as service rendered with the Geological Survey of India
This 897 is the correct effect of the letter R 2 relied upon by the respondents
We therefore direct the respondent Nos 1 2  4 to prepare a fresh seniority list in the light of the observations made above as if the merger has taken place on 111966 and after determining inter seniority give an appropriate relief to the petitioners   Civil Appeal No 855N of 1979 has been preferred against the above decision of the Bombay High Court
A Senior Technological Assitant Geology of the erstwhile IBM moved the Karnataka High Court for similar relief contending inter alia that his case ought to have been considered for promotion in the merged cadre with effect from 1 January 1966
The Karnataka High Court also allowed his claim with a direction to consider him for promotion with effect from 1 January 196 in the merged cadre
That decision was not implemented by the GSI perhaps on the ground that the dispute as to the date of merger is already pending consideration before this Court
In the contempt proceedings taken for disobedience of the judgment the High Court however did not accept that excuse put forward by the GSI and Government of India but allowed six weeks time for compliance
SLPC No 4906 of 1991 has been preferred against that direction issued by the Karnataka High Court
Since the issue raised in both the matters is common we grant special leave in this case also
The issue as to the date of merger of the Exploration Wing IBM with GSI turns on the contents of some of the letters written by the Government of India to the Director General of GSI
Both the parties depend upon the same letters but with different contentions and constructions
We will now draw attention to the letters one by one
i LETTER DATED 10 DECEMBER 1965 GOVERNMENT OF INDIA MINISTRY OF STEEL AND MINES DEPARTMENT OF MINES AND METALS
To The Director Indian Bureau of Mines Nagpur
For the attention of Sh
KN Murthy Deputy Director IBM 898 Sub Reorganisation of the IBM and GSI
Sir xxxxx xxxxx xxxxx After careful consideration of all these matters and in consultation with Director General GSI and IBM the Government have decided to transfer the following from the IBM to the administrative control of the GSI wef
1st January 1966 i All the posts and personnel in the Prospecting Drilling and Mining Divisions of the Bureau will be transferred to the GSI as detailed in Appendices I  II
ii The workshop and Mineral Technology and Physical Analysis Laboratories will transferred to the GSI along with the posts in these laboratories as detailed in Appendix II
iii The posts in the common cadres in the Administration and Accounting Divisions as have been on the basis of actual work load as detailed in Appendix II
The personnel holding the posts will be allocated to the GSI and the IBM on the basis of options indicated by them the principal guideline being exigency of public service
iv The equipment vehicles and stores will be transferred by the IBM to the GSI according to the distribution made on the basis of equipment etc
being required by the organisations as per statement in Appendix III 2
The headquarters of the Prospecting Drilling and Mining Divisions as also the workshop and the Mineral Technology and Physical Analysis Laboratories which are being transferred from the Bureau to the GSI will continue to be at Nagpur
On transfer of these Divisions these will work as separate entity of the GSI under the administrative control of the DG GSI
Headquarters of the Mineral Technology Laboratory at Delhi will continue to remain at Delhi
899 3
The service conditions of the personnel to be transferred to the GSI such as status emoluments seniority etc
will be governed by the existing recruitment rules until further orders
The IBM will be responsible for the administration of Mines Control and conservation collection of statistical data of minerals and Ore Dressing Laboratory as here to before
With effect from 111966 the GSI will provide in their budget the expenditure connected with the work transferred to them from the IBM and put up a Supplementary demand
Correspondingly IBM will surrender the Lequivalent amount from its budget   ii LETTER DATED 28 JUNE 1967 GOVERNMENT OF INDIA MINISTRY OF STEEL MINES  METALS DEPARTMENT OF MINES AND METALS
To The Director General Geological Survey of India 27 Chowringhee Road Calcutta 13 Sub Merger of Class I and II posts in the Drilling Divisions of the Geological Survey of India Proper and Exploration Wing and combined seniority lists
Sir In partial modification of the Ministry of Steel and Mines Department of Mines  Metals letter No 20465 MIII dated 10 December 1965 I am convey sanction of the Government to merge class I and II posts in the Drilling Divisions of the Exploration Wing and the Geological Survey of India Proper with immediate effect
Heretofore the service conditions of the class I and II officers of Drilling category of the merged Drilling Division would be governed in accordance with the revised recruitment rules which are under issue separately
900 2
In drawing up the combined seniority lists of the officers in different grades in the amalgamated cadres of Class I and II posts para 3 of the annexure to the Ministry of Home Affairs OM No 91155 RPS dt
22121958 according to which permanent officers of the grade are senior to temporary officiating officers of that grade is not applicable
In such cases seniority is determined with reference to the date of continuous appointment to that grade on a regular basis in accordance with the other principles prescribed in the Ministry of Home Affairs OM No dt
23121959 referred to above lists so drawn may please be sent for approval of Government
Yours faithfully Sd A Sethumadhavan Under Secretary to the Govt
of India iii LETTER DATED 46 FEBRUARY GOVERNMENT OF INDIA MINISTRY OF STEEL MINES AND METALS DEPARTMENT OF MINES AND METALS No 11668 MIII To The Director General Geological Survey of India Calcutta
Sub Merger of Postsscales of pay in the GSI Proper and the Exploration Wing transferred from the Indian Bureau of Mines to the Geological Survey of India
Sir I am directed to invite your attention to this Ministry s letter No 31767 MIII dated 2861967 and to say that the President is pleaded to sanction merger of the posts and to prescribe the scales of pay for the merged cadres as shown in the enclosed statement with immediate effect
Orders regarding merger of the remaining posts will be issued separately
901 2
The inter seniority of the incumbents in the merged cadres will governed in accordance with the principles laid down in para 2 of the Ministry s letter referred to above
The mergerrevision of the scales of pay does not involve any change in the nature and duties of the respective posts
The fixation of pay in the revised scales of pay may be done under FR 23 read with audit instruction 1 under FR 22 4
The officers concerned should be asked to exercise their option in writing so as to reach the authority concerned within four months of the issue of this letter provided that i in the case of a Government servant who is on that date out of India on leave deputation or foreign service or active service the said option shall be exercised in writing so as to reach the prescribed authority within four months of the date of his taking over charge of his post in the GSI and ii Where a Government servant is under suspension the option may be exercised by him within four months of the date of his return to duty if that date is later than the date prescribed here
In case the individual concerned fails to exercise the option within the time limit he will be treated to have accepted the new scale of pay   In between these correspondence the Government of India wrote one more letter to the Director General of GSI
It was dated 29 November 1966 which will be referred later
Mr Garg and Mr Vaidyanathan counsel for the contesting respondents rely on the first letter dated 10 December 1965 and also on the subsequent letter dated 29 November 1966 in support of the decision of the High Courts that the merger took place on 1 January 1966
Mr Subba Rao counsel for the Union of India wants to take assistance from the terms of the letter dated 16 February 1969 in support of the counter plea
It may be significant to note that the letter dated 10 December 1965 does not indicate the date of merger
It is 902 stated therein that after consultation with the Director General of GSI and IBM the Government has decided to transfer to the administrative control of GSI with effect from 1 January 1966 the posts and personnel in the prospecting drilling and mining divisions of the Bureau with the workshop mineral technology and physical analysis laboratories
The letter further states that the posts in the common cadres in the administration and accounting divisions as have been divided on the basis of actual work load as detailed in Appendix II with the personnel holding the post will be allocated to GSI and IBM on the basis of options indicated by them
The equipment vehicles and stores will be transferred by IBM to GSI according to the distribution made as per requirements of the two organisations
The most important statements in the letter are these i on transfer of the divisions they will however work as separate entity of the GSI under the administrative control of the Director General GSI and ii the service conditions of the personnel to be transferred to GSI such status emoluments seniority etc
will be governed by the existing recruitment rules until further orders
It is further directed in the letter that with effect from January 1966 the GSI will provide in their budget the expenditure connected with the work transferred to them from the IBM and put up a supplementary demand
Correspondingly IBM will surrender the equivalent amount from the budget
These statements in the letter make it abundantly clear that it was only administrative control of the relevant Wings of IBM that were transferred to GSI with effect from 1 January 1966
The letter does not refer to the decision of merger of the two departments
The decision taken on the merger of the posts as rightly submitted by Mr Subba Rao was communicated by subsequent letters dated 28 June 1967 and 46 February 1969
By letter dated 28 June 1967 the Government communicated the sanction of merger of class I  II posts in the drilling divisions of Exploration Wing of IBM and GSI Proper with immediate effect
The letter also contains certain instructions to department about service conditions and seniority of persons in the amalgamated cadres of class I  II posts
The decision with regard to merger in respect of other categories of posts is contained in the letter dated 46 February 1969
Thereunder it is expressly stated that the President is pleased to sanction merger of the posts and to prescribe the scales of pay for the merged cadres as shown in the enclosed statement accompanying the letter include the posts with which we are concerned in these cases and there is no dispute on this matter
903 The letter dated 46 February 1969 further provides that the inter se seniority of the incumbents in the merged cadres will be governed in accordance with the principles laid down in the earlier letter dated 28 June 1967
The mergerrevision of the scales of pay does not involve any change in the nature of duties of the respective posts
The officers concerned in the merged cadre will be given options in writing for opting the new scales of pay in the merged cadre
In case an individual concerned fails to exercise the option within the time limit he will be treated to have accepted the new scale of pay
It will be apparent from the terms of the letter dated 46 February 1969 that the posts referred to in the letter were merged with GSI with effect from 4 February 1966 as contended for the respondents the letter dated 46 February 1969 would be unnecessary and uncalled for
Counsel for the respondents however placed strong reliance in support of the counter point on the letter dated 29 November 1966 which reads as follows GOVERNMENT OF INDIA No 83966 MIII NEW DELHI 29TH NOV
1966 To The Director General Geological Survey of India 27 Chowringhee Lane Calcutta 13 Sub Absorption of Shri BK Chatterjee Stenographer Selection Grade of the Indian Bureau of Mines in Geological Survey of India Exploration Wing
Sir I am directed to refer to your letter No 8328 N1156515 dated 4111966 on the subject mentioned and to say that transfer in question cannot be termed as transfer from one department to the other department since it place on a result of the reorganisation of the Indian Bureau of Mines and transfer was effected on the recommenda 904 tions of the Merger Committee when there was a vacancy in the GSI
The transfer was made in the public interest and it is considered not necessary to approve the transfer in question in relaxation of the recruitment Rules as proposed
The transfer of Shri Chatterjee may be treated as in order
Further the inter seniority of Stenographer and other categories of posts transferred from the Bureau to the Geological Survey of India as a result of the reorganisation of the former may be decided taking into account the fact that such transfers have been made in the public interest and such cases may be examined on the basis as if the individual concerned were originally appointed in the Geological Survey of India
Yours faithfully Sd A Sethumadhavan Under Secy
to the Govt
of India We do not find any support from this letter to the submission of the respondents
The letter concerns with the transfer of one Stenographer called Shri BK Chatterjee from IBM to the GSI
The transfer was made in the public interest
Consequently
it was held that the person transferred was entitled to seniority as if he were originally appointed in the GSI
That is a normal incident of transfer from one department to another and there is nothing strange in it
But it may be noted that the respondents were not transferred from IBM to GSI with effect from 1 January 1966
They were neither transferred to GSI nor their posts were transferred to GSI with effect from 1 January 1966
They were only brought under the administrative control of the Director General of GSI
The result is that the posts and personnel remained in their own department and they would continue to be governed by their own service conditions
This would indeed be the consequence of one department being brought under the control or supervision of another departmental head
This point has also been made clear in the letter dated 1 January 1966 in which it has been provided that the service conditions of the personnel to be transferred to the GSI such as status emoluments seniority etc will be governed by the existing recruitment rules until further orders  
In other words the service conditions which the respondents were entitled to in their parent department would continue to be available to them until further orders
905 The Bombay High Court has however observed that it will lead to absurdity if the contesting respondents are not considered for promotion in the GSI from 1 January 1966 since they could not get any promotion in or were not considered for promotion by IBM because they were treated under administrative control of GSI
It is difficult to accept this view
This conclusion is based more on equitable consideration than on law
It is the result of failure to focus on the difference between the terms of letters dated 1 January 1966 and 46 February 1969
It may be emphasised that non consideration of the contesting respondents for promotion in the IBM during the period from 1966 to 1969 even assuming it to be true is however no ground for them to seek promotion in GSI
They must seek their promotion during the interregnum only in their parent department
Reference is made to the combined provisional seniority list of persons in class III cadres of IBM and GSI prepared as on 1 December 1968
It is submitted that if the merger took place with effect from 4 February 1969 there were no necessity for GSI to prepare the provisional seniority list of officers of the combined cadre as on 1 December 1968
Reference is also made to the Introduction to the compilation Vol
100 Part I Records of the GSI   in which it is mentioned that on 1 January 1966 the Mining Divisions of the IBM have been merged with the GSI
The said provisional seniority list and the statement of introduction to the compilation in our opinion are no evidence of the date of merger and indeed they do not reflect the decision of the Government of India which we have earlier discussed
For the foregoing reasons we accept the appeals and set aside the impugned judgment and order
In the circumstances of the case however there should not be any order as to costs
VPR Appeals allowed


Summary:
The partners of the assays firm were members of a HUF which was carrying on business with borrowed capital
Consequent on partial partition in the family and partition of the family business the members formed the assays firm
There was a debit balance in the capital account of the family which was transferred to the personal accounts of the partners of the firm
The firm which continued the family business and took over the business assets and the liabilities of the HUF claimed that the interest paid on the debit balance was an allowable deduction in the computation of income since it had taken over the debit balance in consideration of the goodwill of the business
The Appellate Assistant Commissioner held that the HUF business had no goodwill
On appeal the Tribunal held that the HUF had a very long standing and flourishing business and hence the firm could be deemed to have taken over the liability in consideration of the sale of goodwill and the interest paid thereon was an allowable deduction
On a reference made by the Tribunal the High Court held that the goodwill of the HUF business was never sold or purchased and that the partners of the firm were bound to take over the HUF s liability since it was that of the family of which they were members and became liable to discharge their share of the debt
Allowing the appeals preferred by the assessee this Court HELD 11 Clause iii of Section 361 of the Income Tax Act 1922 applies only where capital has been borrowed for the purposes of the business or profession
The amount of interest paid on the borrowed capital is an allowable deduction
It cannot be disputed that if the goodwill is purchased out of the borrowed capital the interest paid on the borrowed capital is an allowable deduction
923B 921 12 In the instant case there was only a partial partition in the family particularly with regard to HUF business and it was not necessary for the firm to have taken over the debit balance of the HUF since the HUF had other properties
923D 13 The Tribunal has correlated the debit balance to the purchase of goodwill since the firm had taken over the business
The High Court has held that there was no sale of goodwill by the HUF to the firm in view of the absence of related entries in the books of account of HUF
The conclusion of the High Court is as much an inference as that the Tribunal on the same set of facts and circumstances
The Tribunal was right in holding that the firm had taken over the debit balance in consideration of the sale of the goodwill and this conclusion is neither unreasonable or unwarranted nor arbitrary or unjust
The High Court ought not to interfere with such conclusion even if another view is possible
Besides the relevant point to be considered is the rights of the assessee and not the liability of the individual members of the HUF
The claim of the assessee for allowable deduction of the interest paid cannot be defeated by the existence of personal liability of the members of HUF
923C E F