Appeals Nos 181 to 184 of 1960
Appeals
from the judgment and order dated March 16 1955 of the Madras High Court in Case Referred No 43 of 1950
A V Viswanatha Sastri R Ganapathy Iyer and G Gopalakrishnan for the appellants
Hardayal Hardy and D Gupta for the respondent
1960 December 14
The Judgment of the Court was delivered by SHAH J
These appeals relate to Excess Profits Tax liability of the appellants in respect of two chargeable accounting periods April 1 1944 to March 31 1945 and April 1 1945 to March 31 1946
The appellants were under an agreement dated July 11 1945 appointed managing agents for 20 years of the Coimbatore Spinning and Weaving Co 273 Ltd hereinafter referred to as the company
Prior to October 1 1944 the appellants were the Managing Agents of the Coimbatore Mills Agency Ltd hereinafter referred to as the Agency Company who were the Managing Agents of the company
The year of account of the appellants ended on March 31 of the company on June 30 and of the Agency Company on September 30
Under the agreement by which the appellants were appointed managing agents the following remuneration was provided 1
Office allowance at Rs 1500 per mensem 2 Commission at 1 on all purchases of cotton and stores and 212 on all capital expenditure incurred from time to time and 3
Commission at 10 on the net profits of the company due and payable yearly immediately after the accounts of the company were closed
For the assessment year 1945 46 the appellants submitted a return of their income inclusive of the following items 1
Remuneration from the Agency Company Rs 36000
Commission at 10 on profits from the Agency Company upto 30 9 1944 Rs 37953
Remuneration from company from 1 10 1944 to 31 3 1945 Rs 9000
Commission at 1 on cotton and stores purchased during this period Rs 21704
This return was accepted by the Additional Income tax Officer Coimbatore I  II Circles and the appellants were assessed to income tax
Excess Profits Tax was also worked out on the same basis for the chargeable accounting period ending March 31 1945
For the assessment year 1946 47 the appellants submitted a return of their income which included the following items 1 Remuneration from the company for one year from 1 4 1945 Rs 18000
Commission at 10 on the profits of the company paid in December 1945 1 10 1944 to 30 6 1945 Rs 190889
35 274 3
Commission at 1 on purchases of cotton and stores from 1 4 1945 to 30 6 1945 Rs 16777
Commission at 2 12 on capital expenditure from 1 10 1944 to 30 6 1945 Rs 1690
The Tax Officer in charge of the assessment directed that the commission on purchases and capital expenditure be taken into account for the year April 1 1945 to March 31 1946 and that the receipts be computed accordingly
The amount of Rs 1127 attributable out of item 4 was accordingly taken into the account of the previous year after reopening the assessment under section 34 of the Income tax Act and the commission on the profits of the company was apportioned between the period October 1 1944 to March 31 1945 and April 1 1945 to June 30 1945 by the application of r 9 of Sch
1 of the Excess Profits Tax Act
The Tax Officer also determined the proportionate commission payable under items 3 and 4 for the period ending March 31 1946 and as a result of the apportionment the liability of the appel lants original and revised for income tax and Excess Profits Tax for the assessment year 1945 46 and chargeable accounting period April 1 1944 to March 31 1945 stood as follows Original assessment of income taxRs
104654
Excess Profits TaxRs 45292
Revised figures Income tax loss Rs 36182
Excess Profits TaxRs
141962 11 0
For the assessment year 1946 47 and chargeable accounting period April 1 1945 to March 31 1946 tax liability was computed at Income tax Rs 166271
Excess Profits Tax Rs 113163 5 0
The orders of assessmentfor income tax and Excess Profits Tax were confirmed by the Appellate Assistant Commissioner and the Income tax Appellate Tribunal
On the applications of the appellants 275 for reference under section 661 of the Income tax Act and section 21 of the Excess Profits Tax Act the Tribunal drew up a statement of the case and submitted the following four questions to the High Court of Judicature at Madras 1Whether on the facts and in the circumstances of the case the Income tax OfficerExcess Profits Tax Officer was right in taking action under section 34 and 15 of the Income tax and the Excess Profits Tax Act  2Whether on the facts and in the circumstances of this case the provisions of r 9 section 1 were properly applied  3Whether on the facts and in the circumstances of the case the Income tax OfficerExcess Profits Tax Officer was correct in including the proportionate commission income of Rs 1127 for income tax assessment 1945 46 and Rs 143163 plus Rs 1127 for Excess Profits Tax assessment Tax for the chargeable accounting period ending 31st March 1945 and 4Whether on the facts and in the circumstances of the case the proportionate commission of Rs 37129 and Rs 2299 were rightly assessed for the assessment year 1946 47  The High Court answered all the questions against the appellants and in favour of the Department
Against the order passed by the High Court these appeals have been preferred with certificate granted under section 66A2 of the Income Tax Act read with section 21 of the Excess Profits Tax Act
Two questions were canvassed in these appeals 1Whether it was open to the Taxing Officer to re open the assessment for 1945 46 and 2Whether the commission received by the appellants was liable to be apportioned under r 9 of Sch
1 of the Excess Profits Tax Act
The appellants maintained their books of account on cash basis and commission received from the company was credited after the accounts of the company were closed
The amounts received by the appellants from the company were included in their return and assessment for the year 1945 46 was completed 276 for the purposes of the Excess Profits Tax by the Tax Officer without apportionment appropriate to the chargeable accounting periods
In so doing the Tax Officer committed an error
He overlooked the fact that the chargeable accounting period for the as assessment of Excess Profits Tax and the year of account of the company did not tally
Under section 15 of the Excess Profits Tax Act if the Tax Officer discovers in consequence of definite information which has come into his possession that profits of any chargeable accounting period chargeable to excess profits tax have escaped assessment or have been under assessed he may serve on the person liable to pay such tax a notice containing all or any of the requirements which may be included in a notice under section 13 and may proceed to assess or reassess the profits
The provision is substantially similar to section 341 of the Income tax Act before it was amended in the year 1948
It is manifest that by the assessment of income made on the assumption that the chargeable accounting period and the accounting period of the company tallied there resulted under assessment in the computation of tax liability for Excess Profits Tax and it was open to the Tax Officer to take action under section 15 of the Excess Profits Tax Act
Determination of the second question depends upon r 9 Sob 1 of the Excess Profits Tax Act
By section 219 of the Excess Profits Tax Act the expression  profits  means profits as determined in accordance with Sch 1
That schedule sets out rules for computation of profits for the purpose of the Excess Profits Tax Act and by r 9 it is provided in so far as it is material that  Where the performance of a contract extends beyond the accounting period there shall unless the Excess Profits Tax Officer owing to any special circumstances otherwise directs be attributed to the accounting period such proportion of the entire profits or loss which has resulted or which it is estimated will result from the complete performance of the contract as is properly attributable to the 277 accounting period having regard to the extent to which the contract was performed therein
 The performance of the contract of managing agency extended beyond the period of account of the company which was July 1 1945 to June 30 1946 it covered parts of two accounting periods
The Tax Officer was therefore obliged to apportion to the chargeable accounting periods the entire profits resulting from the complete performance of the contract in proportions properly attributable to the accounting periods and this he proceeded to do
Counsel for the appellants contends that the contracts contemplated by r 9 are those of the nature of engineering or works contracts and the like where execution of the contract involves a profit making operation de die in diem and not contracts where remuneration is payable at a certain time for services performed throughout the stipulated period
It is true that remuneration was paid to the appellants after the expiry of the year of account of the company  but the contract was one the performance of which extended throughout the year of account of the company
The appellants were the managing agents of the company and they had to perform their duties as managing agents for the whole year
It is not disputed that the contract of agency for 20 years is to be regarded for assessment of excess profits tax as an annual contract
The performance of the contract unmistakably cut across the accounting period is also manifest
The remuneration for performance of the contract is not computed at a daily rate but is computed on a percentage of the commission on the profits of the company for the whole year but on that account the contract is not one in which performance does not extend throughout the year of account
Normally in a managing agency contract the managing agent may not suffer loss but that does not rule out the application of r 9 to managing agency contracts
The terms in which r 9 is enacted are general the rule is applicable to all contracts which are intended to be operative for a fixed period
If for the performance of the entire contract 278 remuneration is payable at rates stipulated the profit earned out of that remuneration must be apportioned in the manner provided by r 9 if the performance of the contract extends beyond the accounting period The judgment of this Court in E D Sassoon  Co Ltd vs The Commissioner of Income Tax Bombay City1 on which strong reliance was placed by the appellants has no application to this case
In that case Ms E D Sassoon  Co Ltd who were managing agents of three different companies transferred the managing agencies to three other companies on several dates during the accounting year
A question arose in the computation of income tax payable by Ms E D Sassoon  Co Ltd whether the managing agency commission was liable to be apportioned between Ms E D Sassoon  Co Ltd and their respective transferees in the proportion of the services rendered as managing agents for the respective periods of the accounting year
It was held by this court Jagannadhadas J dissenting that on a true interpretation of the managing agency agreements in each case the contract of service between the companies and the managing agents was entire and indivisible and the remuneration or commission became due by the companies to the managing agents only on completion of definite periods of service and at stated intervals  that complete perfor mance was a condition precedent to the recovery of wages or salary in respect thereof and the remuneration payable constituted a debt only at the end of each period of service completely performed no remuneration or commission being payable to the managing agents for broken periods that no income was earned by or accrued to Ms E D Sassoon  Co Ltd and as the transfer of the agencies did not include any income which E D Sassoon  Co Ltd had earned they were not liable to be taxed under the Income Tax Act
But that was a case dealing with liability of the assessees who did not receive any income and to whom no income had accrued to pay 11955 1 SC R 313
270 income tax on the amounts of remuneration paid to their transferees
The court was not called upon to apply to income received by the assessee the principle of apportionment under r 9 of Sch
1 of the Excess Profits Tax Act or any provision similar thereto
It is r 9 of Sch
I which attracts the principle of apportionment
The rule enunciated in Ms E D Sassoon  Co s case 1 has therefore no application to this case and the High Court was right in holding that the assessment made by the Excess Profits Tax Officer by apportionment of the commission income between the chargeable accounting periods was correct
The appeals therefore fail and are dismissed with costs
One hearing fee
Appeals dismissed


Summary:
Under an agreement dated July 11 1945 the appellants were appointed managing agents of the Coimbatore Spinning and Weaving Co Ltd for 20 years and certain remuneration was provided for them including 10 commission on the net profits of the company due and payable yearly immediately after the accounts of the company were closed and commissions on purchases and capital expenditure of the company
Prior to October 1 1944 the appellants were the managing agents of the Coimbatore Mills Agency Ltd who were the managing agents of the Coimbatore Spinning and Weaving Co Ltd The year of account of the appellants ended on March 31 of the company on June 30 and of the Agency Company on September 30
For the assessment year 1945 46 the appellants submitted a return of their income which included the stipulated remuneration and commissions
This return was accepted by the Income tax Officer and Excess Profits Tax liability for the chargeable accounting period ending March 31 1945 was also worked out on that basis
A return of income was submitted by the appellants for the assessment year 1946 47 which included commission for the period 1 4 45 to 30 6 45 on purchases of cotton and stores and on capital expenditure
The Tax Officer directed that the commission on purchases and capital expenditure be taken into account 272 for the year April 1 1945 to March 31 1946 and that the receipts be computed accordingly
The assessment for 1945 46 was then reopened under section 34 of the Income tax Act under section 15 of the Excess Profits Tax Act and as a result of apportionment made by the application of r 9 of Sch
1 of the Excess Profits Tax Act the liability of the appellants for Income tax and Excess Profits fax was revised and fresh assessments were made
The orders of assessment were confirmed by the appellate authorities
Held that as in the instant case the chargeable accounting period for the assessment of Excess Profits Tax and the year of account of the company did not tally by the assessment of income made on the assumption that they did tally there had resulted under assessment and it was open to the Tax Officer to take action under section 15 of the Excess Profits Tax Act
The Excess Profits Tax Officer acted properly in apportioning under r 9 of Sch 1 the commission received by the appellants
Rule 9 of Sch 1 of the Excess Profits Tax Act is enacted in general terms and it is applicable to all contracts which are intended to be operative for fixed periods
If for the performance of the entire contract remuneration is payable at certain rates the profits earned out of that remuneration must be apportioned in the manner prescribed by 19 if the performance of the contact extends beyond the accounting period
E D Sassoon  Co Ltd vs The Commissioner of Income tax Bombay City   distinguished