Appeals Nos 131 131 A and 131 B of 1952
Appeals from the Judgment and Decree dated the 2nd day of February 1950 of the High Court of Judicature at Madras Satyanarayana Rao and Vishwanath Sastri JJ in Cases Referred Nos 76 and 78 of 1946 and 32 and 56 of 1947
259 CK Daphtary Solicitor General for India G N Joshi with him for the appellant
B Somayya Alladi Kuppuswami with him for the respondent
October 14
The Judgment of the Court was delivered by GHULAM HASAN J
These three appeals arise from the judgment and order of the Madras High Court dated 2nd February 1950 delivered on a reference by the Income tax Appellate Tribunal hereinafter referred to as The Tribunal  whereby the High Court answered the first referred question in the negative and as regards the second question Satyanarayana Rao J answered it in the affirmative while Viswanatha Sastri J answered it in the negative as a result of which the judgment of Satyanarayana Rao J ultimately prevailed
They relate to the assessment for 1942 1943 and are filed by the Commissioner of Income tax while Appeal No 132 of 1952 which relates to 1943 1944 is filed by the assessee and is dealt with separately
The two question which were referred in respect of the first group of appeals are as follows 1 Whether there is any material for the Tribunal s finding that the appellants respondents in this case were being assessed on cash basis in the prior years 2 Whether on the facts and in the circumstances of the case the Appellate Tribunal s finding that the sum of Rs 226850 could not be assessed for the assessment year 1942 43 is correct in law The assessee is a registered firm hereinafter referred to as the firm  consisting of KRMTT Thiagaraja Chetty and his two sons
The firm is the managing agent of Shri Meenakshi Mills Ltd hereinafter referred to as the Com pany owning a spinning mill at Madura
The firm also con ducted insurance business and the business of ginning cotton in a ginning factory at another place
Under the terms of LBD2SCI 3a 260 the agreement the managing agents were entitled to a remu neration of Rs 1000 per mensem and a commission of I per cent
on all purchases I per cent
on all sales and 10 per cent
commission on the net profits of the mills before allowing for depreciation
The firm had plenary powers of management of the affairs of the company subject to general supervision of the directors
It was to have charge and custody on behalf of the company of all the property books of accounts papers and documents and effects belonging to the company
It was required to keep at the expense of the company proper and complete books of account of all purchases and sales and of all payments made and moneys received on behalf of the company
It had to defray all the expenses of maintaining a suitable office and a staff of assistants and clerks sufficient to transact the business of the firm as managing agents of the company
Clause 16 is most important and lays down that the firm be at liberty to retain reimburse and pay themselves out of the funds of the company all charges and expenses legal or otherwise and all the costs and expenses of providing and maintaining offices for the company and the salaries of clerks servants agents or workmen and all moneys expended by them on behalf of the company and all sums due to the firm for commission or otherwise
The company made considerable profit in the assessment year 1942 1943 and the firm became entitled to commission to the tune of Rs 226850 5 0
The firm did not show this sum in the return on the ground that it was not actually re ceived in the year of account viz by the 31st March 1942
It relied upon a resolution of the Board of Directors of the company dated the 30th March 1942 by which they had decided to keep the aforesaid amount in suspense without paying it on the ground that an amount of two lakhs odd was due to the company from the firm
It appears that the firm owed a debt to the company for a long time past which was outstanding
The firm wrote on the 30th March 1942 to the company requesting that the debt be written off
The Firm also wrote that on account of the extraordinary increase in the 261 volume of business
it found it difficult to bestow adequate attention on all the aspects of the mill business and proposed that the direct responsibility for sales and purchases may be transferred to some other agency leaving the general supervision over the entire management in the firm s hands
The firm agreed to forego its commission on purchases and sales and agreed to take half of the commission on the net profits
The directors by their resolution passed on the same date refused to write off the amount without consulting the general body of shareholders and pending the settlement of the dispute resolved to keep the amount in suspense
The Income tax Officer held that the firm followed the mercantile method of accounting and not the cash basis and that the income having accrued become assessable whether received or not
The actual amount payable to the firm in accordance with the terms and conditions of the agreement for the year 1942 1943 was not disputed
The Appellate Assistant Commissioner confirmed the assessment and dismissed the appeal of the assessee
The Commissioner upheld the view that the income was determined on the mercantile basis and that the income had accrued or arisen to the assessee within the meaning of section 41 bi of the Income tax Act
and the mere fact that the amount was put in the suspense account did not alter the fact that the income had accrued to the firm Upon the matter being carried further in appeal by the assessee the Tribunal held that the income had not accrued to the firm and that the amount should be excluded from taxation as not having been received during the accounting year
The two questions aforementioned were then referred at the instance of the Commissioner by the Tribunal to the High Court
As already stated the opinion on the first question was unanimous both the learned Judges Satyanarayana Rao J and Viswanatha Sastri J holding against the assessee that there was no material for the Tribunal s finding that the firm was being assessed on cash basis in previous years the latter observing that finding in respect of 1942 1943 and 1943 1944 262 were mutually inconsistent for in respect of the latter assessment year the Tribunal had held that the sum of Rs 220702 was assessable to income tax though the amount merely stood as a credit to the firm in the books of the company and has not been drawn by the firm
It is contended by Mr Somayya on behalf of the firm that the finding of the Commissioner that the firm was not paid in cash in the prior years was set aside by the Tribunal and being a finding of fact ought not to have been interfered with by the High Court
The firm had raised this question before the Tribunal at the time of the reference and had contended that no question of law arose from its order as it was concluded by finding of fact
The Tribunal however repelled this contention observing that the question was one of law as it related to the existence of any material for the finding
The High Court upon such question being referred applied its mind to the precise question and came to the conclusion that there was No material for the finding that the firm was being assessed on cash basis in the prior year
The case of Commissinoer of Income tax Bihar and Orissa vs Maharaiadhiraja of Darbhanga1 does not support the contention of Mr Somayya
There the Income tax Officer had computed the profits of the business for a particular year by taking into account both actual receipts of interest in that year and sums treated by the assessee in that year as receipts of interest by their transference to the interest register from what might be regarded as a suspense account
The Privy Council held that there was nothing illegel or contrary to principle in the computation arrived by the Income tax Officer
The High Court under section 661 had to decide the question of law raised by the first question and decided it against the assessee
Nor can it be said that in answering the question the High Court acted illegally or contrary to principle
Admittedly the firm kept no separate books of accounts other than the 1 60 IA 146
263 books of accounts of the company in which there was a ledger containing entries relating to the remuneration and commis sion paid in cash to the firm
The sum of Rs 226850 5 0 was debited as a revenue expenditure of the company as having been paid to the firm in the books of accounts of the company kept by the firm and was also allowed as a deduction in computing the profits and gains of the company for the purposes of income tax for 1941 1942
The fact that certain moneys were drawn in cash by the firm from time to time does not necessarily lead to the inference that the firm kept its accounts on a cash basis
Anyone familiar with commercial transactions knows that even in accounts kept on a mercantile basis there can be entries of cash credits and debits
We see no flaw in the conclusion reached by the High Court on the first question
The next question that falls to be determined is whether the sum of Rs 226850 5 0 was part of the profit and gains which had accrued to the firm during the accounting year 1941 1942
The undisputed facts are that the amount in question was the commission earned by the firm as managing agents of the company
In the books of the company main tained by the firm the aforesaid sum was debited as an item of revenue expenditure and the profits were computed after deducting that sum
The amount was simultaneously credited to the managing agents  commission account
Under these circumstances it is idle to contend that the aforesaid sum had not accrued
There can be no doubt under the circum stances that the aforesaid sum was income which had accrued to the firm
The only question is whether the aforesaid sum ceased to be income by reason of the fact that on the 30th March the sum was carried to the suspense account by a reso lution of the directors as a result of the request made by the firm that the outstanding debt due from it may be written off
It is true that the sum was not drawn by the firm but that can hardly affect the question of its liability to tax once it is established that the income had accrued or arisen to the firm 264 The mere fact that the company was withholding payment on account of a pending dispute cannot be held to mean that the amount did not accrue to the firm
The resolution of the directors itself shows beyond doubt that the amount in question was treated as belonging to the firm though its payment was deferred on account of a pending dispute
As Viswanatha Sastri J tersely put it The sum had irrevocably entered the debit side of the company s account as a disbursement of managing agency commission to the firm and had been appropriated to the firm s dues and the same sum could not again be entered in a suspense account at a later date
The sum therefore belonged to the firm and had to be included in the computation of the profits and gains that had accrued to it unless the firm had regularly kept its accounts on a cash basis Which is not the case here 
A reference to the ledger folios in the books of the company shows that apart from the managing agents  monthly remuneration of Rs 1000 which has duly entered in
their account the amount in question also finds a place in the ledger as outstanding charges against the company and as credits in favour of the firm The  journal entries in the company s books are the same
Section 10 of the Act makes profits and gains of busi ness profession or vocation  carried on by an assessee liable to tax
Section 12 makes income from other sources in respect of income profits and gains of every kind liable to tax
By section 13 income profits and gains shall be computed for the purposes of both those sections in accordance with the method of accounting regularly employed by the assessee but there is a proviso that if no method of accounting has been regularly employed or if the method employed is such that in the opinion of the Income tax Officer the income profits and gains cannot properly be deduced therefrom then the c Computation shall be made upon such basis and in such manner as the Income tex Officer may determine
265 The Income tax Officer in computing the income of the assessee would have followed the mercantile system or the cash basis whichever was employed by the assessee
There is some evidence though not conclusive on the record that the assessee followed the mercantile system of accountancy
This appears from the assessment orders field in the case but apart from this  the Income tax Officer had full authority under the proviso to compute the profits upon such basis and in such manner as he thought fit
The case of St Lucia Usines and Estates Company Ltd vs Colonial Treasurer of St Lucia1 was relied upon strongly before us as it was in the High Court in support of the contention that the sum not having been paid to or realized by the firm no income can be said to have accrued to the firm
In that case the assessee company sold all its property in St Lucia in 1920 and ceased to reside or carry on business there
In 1921 interest upon the unpaid part of the purchase price was payable to it but was not paid
The company was liable to pay income tax for the year 1921 under the Income tax Ordinance 1910 of St Lucia only if the interest above mentioned was income arising and accruing  to it in 1921
It was held that though the interest was a debt accruing in 1921 it was not income arising or accruing  in 1921 and that the company was not liable
The decision was based upon the meaning of the word income  as used in the Ordinance which was said to connote the idea of something coming in
Lord Wrenbury who delivered the judgment of the Privy Council construed the words income arising or accruing as money arising or accruing by way of income and not debts arising or accruing
The learned Law Lord observed A debt has accrued to him taxpayer but income has not
It is clear that the case related to the meaning of the word Income as used in the Ordinance and can be no authority on the question of the assessment of profits and gains under the Indian Income tax Act
The next case relied upon is Dewar vs Commissioners of Inland Revenue2
In that case one of the executors be 1 2 266 came entitled to a legacy which carried interest for such time as it remained unpaid
The testator s estate was sufficient at all material times to enable interest to be paid on the legacy but the legatee acting on the advice of his accountant did not demand the legacy or interest thereon
It was held that as the legatee had not received interest there was no income in respect of which he could be charged to sur tax
The decision turned upon the language of Schedule D clause 1 sub clause b of the English Income Tax Act of 1918 as distinguished from clause I a
Clause I a deals with annual profits or gains arising or accruing from any kind of property whatever but clause b imposes a tax in respect of all interest of money annuities and other annual profits Lord Hanworth
M R drew the distinction between the two clauses and observed that the case was one of interest of money and fell under clause b and not under clause a
Under that clause the tax was limitedto any interest of money whether the same is received and payable half yearly or any shorter or more distant period
The learned Master of the Rolls observed If the interest on the legacy in this case has not arisen to the respondent if he had not become the dominus of this sum if it does not lie to his order in the hands of his agent can it be said that it has arisen to him I think the answer definitely upon the facts must be No it has not Lord Maugham L J put the question thus I think in the present case two circumstances may be accurately stated in regard to the sum of pound 40000 which it is said can be brought into charge
The first is that the sum of pound 40000 was not during the year of assessment a debt due by the executors to Mr Dewar and secondly that the sum in question may never be paid or received at all The case of Commissioner of Taxes vs The Melbourne Trust Limited1 turned on the construction of the charging 1 267 section in the Income Tax Act 1903 of Victoria whereby a company was liable to pay tax upon the profits earned in or derived in or from Victoria
In this case the surplus realized by the assessees over the purchase price for the assets sold after making all just deductions was taxed as profit but it was held that they were entitled to hold in suspense part of the surplus realised to meet possible losses on other assets and that under the circumstances the profit was earned for the purposes of the Act only when distributed to the share holders
Having considered all these cases we are of opinion that neither of them has any bearing upon the facts and circumstances of the present case
Lastly it was urged that the commission could not be said to have accrued as the profit of the business could be computed only after the 31st March and therefore the com mission could not be subjected to tax when it is no more than a mere right to receive
This argument involves the fallacy that profits do not accrue unless and until they are actually computed
The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual
In the case of income where there is a condition that the commission will not be payable until the expiry of a definite period or the making up of the account it might be said with some justification though we do not decide it that the income has not accrued but there is no such condition in the present case
Clauses 7  8 of the agreement which relate to the payment of the commission and the calculation of the profits mean no more than this that the commission will be quantified only after certain deductions had been made and not that the commission will not accrue until the profits have been ascertained
The quantification of the commission is not a condition precedent to its accrual
If the profits of the company are said to have accrued on the 31st of March upon a parity of reasoning it must be conceded that the commission also accrued on the same date
The date has as much to do with the accrual of the commission as it has to do with the accrual of the profits
It was faintly suggested that the managing
agency was not a business but this is immaterial for income tax purposes because section 13 will apply to cases both under sections 10 268 and 12 so we refrain from deciding the point
We may how ever point out in passing that in two cases Tata Hydro Electric Agencies Ltd vs Commissioner of Income tax Bombay1 and Commissioner of Income tax
Bombay Presidency vs Tata Sons Ltd2 it was assumed that the managing agency is business but the point was directly decided in Inderchand Hari Ram vs Commissioner of Income tax UP and CP3 that it is so
For the foregoing reasons we accept the view taken by Viswanatha Sastri J and allow the appeals
The respondent shall pay the costs of the Commissioner both in this court and before the High Court
Appeals allowed


Summary:
Where under the terms of a managing agency agreement the assessee firm who were the managing agents of a company were entitled to a certain percentage of the profits as their commission and in the books of the company maintained by the firm a sum of Rs 226850 odd was shown as commission due to the firm on the profits for the year 1941 42 and the said sum was also debited as an item of business expenditure and credited to the managing agents  commission account but the aforesaid sum was subsequently carried to a suspense account by a resolution of the company as a result of a request made by the firm that a debt due by the firm to the company may be written off  Held that as the assessee kept the accounts on the mercantile system the commission accrued to the assessee when the commission was credited to it in the accounts and the subsequent carrying over of the amount of the commission to a suspense account pending the settlement of the dispute between the company and the assessee could not affect assessee s liability to be taxed on this income
Held further that the fact that the profits of the business could be computed only after the 31st of March 1942 was Immaterial as quantification of the commission is not a condition precedent to its accrual