Appeals Nos 187 and 190 of 1960
Appeals from the judgment dated 22nd January 1957 of the Punjab High Court Circuit Bench Delhi in Civil Reference No 6 of 1953
Veda Vyasa section K Kapur and K K Jain for the appellant
B Ganapathi Iyer and D Gupta for the respondent
November 30
The Judgment of the Court was delivered by KAPUR J
These appeals are brought by the assessee company against a common judgment and order of the Punjab High Court by which four appeals were decided in Civil Reference No 6 of 1953
The appeals relate to four assessment years 1947 48 1948 49 1949 50 and 1950 51
Two of these assessments ie for the years 1947 48 and 1948 49 were made on the 800 appellant as successor to the two limited companies hereinafter mentioned
Briefly stated the facts of the case are that the appellant company was incorporated in the year 1947
Its objects inter alia were to acquire as a going concern activities functions and business of the Delhi Stock  Share Exchange Limited and the Delhi Stock and Share Brokers Association Limited and to promote and regulate the business of exchange of stocks and shares debentures and debenture stocks Government securities bonds and equities of any description and with a view thereto to establish and conduct Stock Exchange in Delhi andor elsewhere
Its capital is Rs 500000 divided into 250 shares of Rs 2000 each on which dividend could be earned
The appellant company provided a building and a hall wherein the business was to be transacted under the supervision and control of the appellant
The appellant company also made rules for the conduct of business of sale and purchase of shares in the Exchange premises
The total income for the year 1947 48 was Rs 29363 out of which a sum of Rs 15975 shown as admission fees was deducted and the income returned was Rs 13388
In the profit and loss account of that year Members  admission fees were shown as Rs 9000 and on account of Authorised Assistants admission fees Rs 6875
The Income tax Officer who made the assessment for the year 1947 48 disallowed this deduction
The return for the following year also was made on a similar basis but the return for the years 1949 50 and 1950 51 did not take into account the admission fees received but in the Director s report the amounts so received were shown as having been taken directly into the balance sheet
The Income tax Officer however disallowed and added back the amount so received to the income returned by the appellant
Against these orders appeals were taken to the Appellate Assistant Commissioner who set aside the additional assessments made under section 34 in regard to the assessment years 1947 48 1948 49 and 1949 50 and the 4th appeal in regard to the year 1950 51 was decided against the appellant
Both sides appealed 801 to the Income tax Appellate Tribunal against the respective orders of the Appellate Assistant Commissioner and the Tribunal decided all the appeals in favour of the appellant
It was held by one of the members of the Tribunal that the amounts received as entrance fees were intended to be and were in fact treated as capital receipts and were therefore excluded from assessment and by the other that as there was no requisite periodicity those amounts were not taxable
At the instance of the respondent a case was stated to the High Court on the following question Whether the admission fees of Members or Authorised Assistants received by the assessee is taxable income in its hands The High Court answered the question in favour of the respondent
The High Court held that the appellant was not a mutual society and therefore was not exempt from the payment of income tax that it had a share capital on which dividend could be earned and any person could become a shareholder of the company by purchasing a share but every shareholder could not become a member unless he was enrolled admitted or elected as a member and paid a sum of Rs 250 as admission fee
On becoming a member he was entitled to exercise all rights and privileges of membership
It also found that the real object of the company was to carry on business as a Stock Exchange and the earning of profits
It was held therefore that the admission fees fell within the ambit of the expression profits and gains of business profession or vocation
The further alternative argument which was raised ie that the income fell under section 106 of the Act was therefore not decided
Mr Veda Vyasa contended on behalf of the appellant that there were only 250 members of the appellant company that the amount received as membership fees was shown as capital in the books of the company and there was no periodicity and therefore the amounts which had been treated as income should have been treated as capital receipts and therefore exempt from assessment
It was firstly contended that the question did not arise out of the order of the 802 Tribunal and that a new question had been raised but the objection is futile not only because of the absence of any such objection at the stage of the drawing up the statement of the case but also because of failure to object in the High Court nor do we see any validity in the objection raised
That was the only matter in controversy requiring the decision of the court and was properly referred by the Tribunal
It was then contended that the question had to be answered in the light of facts admitted or found by the Tribunal and that the nature of the appellant s business or the rules in regard to membership could not be taken into consideration in answering the question
That again is an unsustainable argument
The statement of the case itself shows that all these matters were taken into consideration by one of the members of the Tribunal and the learned judges of the High Court also decided the matter on that material which had been placed before the Income tax authorities and which was expressly referred to in their orders and which again was placed before the High Court in the argument presented there on behalf of the appellant company
It is wholly immaterial in the circumstances of the present case to take into consideration as to how the appellant treated the amounts in question
It is not how an assessee treats any monies received but what is the nature of the receipts which is decisive of its being taxable
These amounts were received by the appellant as membership admission fees and as admission fees paid by the members on account of Authorised Assistants
As far as the latter payment is concerned that would fall within the decision of this Court in Commissioner of Income tax
vs Calcutta Stock Exchange Association Ltd 1 and therefore is taxable income
The former ie members admission fees has to be decided in accordance with the nature of the business of the appellant company its Memorandum and Articles of Association and the Rules made for the conduct of business
The appellant company was an association which carried on a trade and its profits were divisible as dividend amongst the shareholders
1 803 The object with which the company was formed was to promote and regulate the business in shares stocks and securities etc and to establish and conduct the business of a Stock Exchange in Delhi and to facilitate the transaction of such business
The business was more like that in Liverpool Corn Trade Association vs Monks 1
In that case an association was formed with the object of promoting the interest of corn trade with a share capital upon which the association was empowered to declare a dividend
The Association provided a Corn Exchange market newsroom and facilities for carrying on business and membership was confined to persons engaged in the corn trade and every member was required to be a shareholder and had to pay an entrance fee
The Association also charged the members and every person making use of facilities a subscription which varied according to the use made by them
The bulk of the receipts of the Association was derived from entrance fees and subscriptions
It was therefore contended that the Association did not carry on a trade and that it was a mutual association and entrance fees and subscriptions should be disregarded in computing assessment of the assessable profits
It was held that it was not a mutual association whose transactions were inca pable of producing a profit that it carried on a trade and the entrance fee paid by members ought to be included in the associations receipts for purposes of computing the profit
Rowlatt J said at p 121 I do not see why that amount is not a profit
The company has a capital upon which dividends may be earned and the company has assets which can be used for the purpose of obtaining payments from its members for the advantages of such use and one is tempted to ask why a profit is not so made exactly on the same footing as a profit is made by a railway company who issues a traveling ticket at a price to one of its own shareholders or at any rate as much a profit as a profit made by a company from a dealing with its own shareholders in a line of business which is restricted to the shareholders 1 804 In Commissioner of Income tax Bombay City vs Royal Western India Turf Club Ltd 1 this Court rejected the applicability of the principle of mutuality because there was no mutual dealing between members inter se
There was no putting up a common fund for discharging a common obligation undertaken by the contributors for their mutual benefit and for this reason the case decided by the House of Lords in Styles V New York Life Insurance Company 2 was held not applicable
In the present case the Memorandum of Association shows that the object with which the company was formed was to promote and regulate the business of exchange of stocks shares debentures debenture stocks etc
The income if any which accrued from the business of the appellant company was distributable amongst the shareholders like in every joint stock company
According to the Articles of Association the members included shareholders and members of the Exchange and according to the rules and bye laws of the appellant company member  means an individual body of individuals firms companies corporations or any corporate body as may be on the list of working members of the Stock Exchange for the time being
In the Articles of Association cls
7  8 provision was made for the election of members by the Board of Directors and Rules 9  10 laid down the procedure for the election of these members
The entrance fees were payable by the trading members elected under the Rules and Bylaws of the Association who alone with their Associates could transact business in stocks and shares in the Association
Therefore the body of trading members who paid the entrance fees and the shareholders among whom the profits were distributed were not identical and thus the element of mutuality was lacking
It is the nature of the business of the company and the profits and the distribution thereof which are the determining factors and in this case it has not been shown that the appellants business was in any way different from that which was carried on in the 1   308
2  805 case reported as Liverpool Corn Trade Association vs Monks 1
In our opinion the judgment of the High Court is right and the appeals are therefore dismissed with costs
One hearing fee
Appeals dismissed


Summary:
The object with which the appellant company was formed was to promote and regulate the business in shares stocks and securities etc and to establish and conduct a Stock Exchange in order to facilitate the transaction of such business
Its capital was divided into shares on which dividend could be earned
it provided a building wherein business was to be transacted under its supervision and control
It made rules for the conduct of business of sale and purchase of shares in the Exchange premises
During the assessment year in question the company s receipts consisted of certain amounts received as admission fee from Members and Authorised Assistants and the question stated to the High Court for its opinion was whether these fees in the hands of the appellant were taxable income
The High Court answered the question in the affirmative
It held that the appellant was not a mutual society that dividends could be earned on its share capital that any person could become a share holder but every share holder was not a member unless he paid the admission fee and the real object of the company was to carry on business of exchange of stocks and earn profits
The case of the appellant inter alia was that as the amount received as membership fee was shown as capital in the books of the company and there was no periodicity it should be treated as capital receipt exempt from assessment
799 Held that the High Court was right in its decision and the appeals must be dismissed
It was wholly immaterial how the appellant treated the amounts in question
It is the nature of the receipt and not how the assessee treated it that must determine its taxability
AS Since the fee received on account of Authorised Assisstants fall within the decision of this Court in Commissioner of Income tax vs Calcutta Stock Exchange Association Ltd  it must be held to be taxable income
The question as to whether the Members  admission fee was taxable income was to be determined by the nature of the business of the company its profits and the distribution thereof as disclosed by its Memorandum and Articles of Association and the rules made for the conduct of business
They showed that the income of the company was distributable amongst its shareholders is in any other joint stock company and the body of trading members who paid the entrance fees and share holders were not identical
The element of mutuality was therefore lacking
Liverpool Corn Trade Association vs Monks 1926 2 K B 110 applied
Commissioner of Income tax Bombay City vs Royal Western India Turf Club Ltd  and Styles vs New York Life Insurance Co   referred to