Civil Appeal No 860 of 1973
From the judgment and order dated the 1st September 1972 of the Andhra Pradesh High Court at Hyderabad in RC No 10 of 1971
AND Civil Appeal No 1614 NT of 1978
Appeal by Special Leave from the judgment and order dated the 26th July 1976 of the Calcutta High Court in l
T Reference No454 of 1974
AND Review Petition No 57 of 1980
795 IN Special Leave Petition Civil No 4602 of 1977 From the judgment and order dated the 11th June 1974 of the Calcutta High Court in IT Reference No 195 of 1969
AND Tax Reference Case Nos 2 and 3 of 1977
Income tax Reference under section 257 of the Income tax Act 1961 drawn up by the Income tax Appellate Tribunal Bombay Bench B  in RA Nos 1223 and 1224 Bom of 1972 73 IT A Nos 24 and 25 Bom of 1971 72
AND Tax Reference Case No S of 1978
Income Tax Reference under section 257 of the Income Tax Act 1961 made by the Income Tax Appellate Tribunal Bombay Bench D in RA No 225 Bom of 1977 78 arising out of STANo 36 Bombay 1 1976 77
A Subbarao and YV Anjaneyulu for the appellant in Civil Appeal No 86073
E VS Desai Dr Debi Pal Praveen Kumar and Anil Kumar Sharma for the Appellant in CA 1614 of 1978 and for the Petitioner in Review Petition No 5780
KG Haji and RJ John for the Appellant in Tax Reference Case Nos 2 and 3 of 1977
SE Dastur SN Talwar and RJ John for the Appellant in Tax Reference Case No 5 of 1978
ST Desai J Ramamurthi and Miss A Subhashini for the Respondent in Civil Appeal No 86073
Miss A Subhashini for the Respondent in Civil Appeal No1614 of 1978 SC Manehanda and Miss A Subhashini for the Respondent in Tax Reference Nos 2 and 3 of 1977
796 SC Manchanda Anil Dev Singh and Miss A Subhashini for the Respondent in Tax Reference Case No 51978
S P Mehta and KJ John for the Intervener
Dr Debi Paul and KJ John for the Intervener in Tax Reference Case No 51978
The following Judgments were delivered TULZAPUKKAR J
In these Civil Appeals and Tax Reference Cases certain common questions of law arise for our determination and hence all these are disposed of by this common judgment
The common questions raised are whether amounts retained or appropriated or set apart by the concerned assessee company by way of making provision a for taxation b for retirement gratuity and c for proposed dividends from out of profits and other surpluses could be considered as other reserves within the meaning of Rule I of the Second Schedule to the or Rule 1 of the Second Schedule to the Company s Profits Sur tax Act 1964 for inclusion in capital computation of the Company for the purpose of levying super profit tax  The first three matters concerning Vazir Sultan Tobacco Co Ltd Hyderabad Ballarpur lndustries Ltd and Ms Bengal Paper Mills Co Ltd Calcutta arise under the while the the Tax Reference Cases concerning Ms Echjay Industries Pvt Ltd and Hyco Products Pvt
Ltd Bombay arise under the Companies Profits Sur tax Act1 964
Since Civil Appeal No 860 of 1973 Vazir Sultan Tobacco Company s case is comprehensive and comprises all the three items of appropriation it will be sufficient if the facts in this case are set out in detail so as to understand how the questions for determination arise in these matters
Vazir Sultan Tobacco Co Ltd was an assessee under the Super Profits Tax Act 1963
For the assess ment year 1963 64 for which the relevant accounting period was the year which ended 30th September 1962 for computing the chargeable profits of that year for the purpose of levy of super profits tax under the Act the assessee company claimed that the appropriations of a Rs 3368360 for taxation b Rs 908106 for retirement gratuity and c Rs 1841820 for dividends all of which items were shown under the heading current liabilities and provisions  in the concerned balance sheet as at 30th Sept 1962 should be regar 797 ded as other reserves within the meaning of Rule 1 of Second A Schedule to the Act and be included while determining its capital
The Super Profits Tax officer rejected the assessee s contention as in his opinion all these items were provisions  and not reserves and as such these had to be ignored or excluded from the capital computation of the assessee company and on that basis he determined the capital and the standard deduction and levied super profits tax on that portion of the chargeable profits of the previous year which exceeded the standard deduction
In the appeal preferred by the assessee company against the assessment the Appellate Commissioner upheld the assessee s contentions and held that those items were reserves and took them into account while computing the capital of the assessee company
In the further appeal prefer red by the Super Tax officer the Income Tax Appellate Tribunal accepted the Department s contention and held that these were not reserves within the meaning of Rule I of the Second Schedule to the Act and as such these could not enter into capital computation of the assessee company
In the Reference that was made under section 2561 of the Income Tax Act 1961 read with section 10 of the at the instance of the assessee company the following question of law was referred to the Andhra Pradesh High Court for its opinion Whether on the facts and in the circumstances of the case the provisions a for taxation Rs 3368360 b for retirement gratuity Rs 908106 and c for dividends Rs 1841820 could be treated as reserves  for computing the capital for the purpose of super profits tax under Second Schedule to the for the assessment year 1963 64  F The High Court on a consideration of several authorities answered the question in respect of the three items in favour of the Revenue and against the assessee company and held that the three sums so set apart by the assessee company in its balance sheet were not reserves and had to be excluded in the computation of its capital for the purpose of levying super profits tax payable on the chargeable profits tor the relevant accounting year
It is this view of the High Court that is being challenged by the assessee company in the Civil Appeal No 86 of 1973 before us
In Civil Appeal No 16141978 Ballarpur Industries Ltd  and Review Petition No 57 of 1980 Ms Bengal Paper Mills Co Ltd 798 We are concerned with only two items of appropriation being a provision for taxation and b provision for proposed dividend and in each one of these cases the Calcutta High Court had taken the view that these two items do not constitute reserves and as such have to be ignored while computing the capital of the assessee company
In Tax Reference Case Nos 2 and 3 of 1977 Ms Echjay Industries Pvt
Ltd a case under  we are concerned with two items of appropriation being a provision for taxation b provision for proposed dividend for the two assessment years 1969 70 and 1970 71 and in each of the years the Taxing Authorities as also the Income Tax Appellate Tribunal Bombay have taken the view that these appropriations did not constitute other reserves within the meaning of Rule I of the Second Schedule to the Companies Profit Surtax Act 1954 and as such were not includible in the capital computation of the assessee company but in view of a divergence of opinion between the different High Courts on the point the Tribunal has at the instance of the assessee company made a direct Reference to this Court under section 257 of the Income Tax Act 1961 read with section 18 of the 
In Tax Reference Case No 5 of 1978 Hyco Products Pvt
Ltd also a case under the same question pertaining to dividend alone but in a different form arose for consideration before the Taxing Authorities and the Income Tax Appellate Tribunal
It was not a case of proposed dividend  but the assessee company after transferring Rs 2977000 out of the current year s profit amounting to Rs 6103382 to General Reserves paid out of Rs 310450 as dividend to its share holders from such augmented General Reserves and the question was whether while computing the capital of the assessee company for the purpose of levy of surtax the General Reserves should or should not be reduced by the aforesaid sum of Rs 310450  In other words the question was whether the amount of Rs 310450 could not form part of the General Reserves on the relevant date being 11
1973 for the computation of the capital  The Taxing Authorities as well as the Appellate Tribunal Bombay held that the said amount of Rs 310450 had to be ignored for the purpose of computation of capital for surtax purposes because it was not a reserve
The assessee company has challenged this view of the Tribunal before us in this direct Reference made to this Court under section 257 of the 799 Income Tax Act 1961 read with section 18 of the Companies  Profits A Surtax Act 1964
It may be stated that the scheme and the main provisions of the two concerned enactments are almost identical the object of both these enactments being the imposition of a special tax on excess profits earned by companies
Under Section 4 of the 1963 Act which is the charging provision there shall be charged on every company for every assessment year commencing on and from 1st April 1963 a tax called the super profits tax in respect of so much of its chargeable profits of the previous year as exceed the standard deduction at the rate or rates specified in the Third Schedule
Section 25 defines the expression chargeable profits to mean the total income of an assessee computed under the Income Tax Act 1961 for any previous year and adjusted in accordance with the provisions of First Schedule while Section 29 defines the expression standard deduction to mean an amount equal to six per cent of the capital of company as computed in accordance with the provisions of the Second Schedule or an amount of Rs 50000 whichever is greater
In order to D determine standard deduction it becomes necessary to compute capital of the company in accordance with the rules laid down in the Second Schedule and rule 1 is relevant for our purposes the material portion whereof runs as follows 1
Subject to the other provisions contained in this Schedule the capital of a company shall be the sum of the amounts as on the first day of the previous year relevant to the assessment year of its paid up share capital and of its reserve if any credited under the proviso b to Clause vi b of sub section 2 of sec
10 of the Indian Income Tax Act 1922 or under sub section 3 of sec
34 of the Income Tax Act 1961 and of its other reserves in so far as the amounts credited to such other reserves have not been allowed in computing its profits for the purposes of the Indian Income Tax Act 1922 or the Income Tax Act 1961   It will be clear from the aforesaid provision of rule 1 that before any amount or sum qualifies for inclusion in capital computation of a company two conditions are required to be fulfilled a that the amount or sum must be a reserve and b the same must not have been allowed in computing the company s profits for the purposes of the 1922 Act or the 1961 Act
That none of the items 800 of appropriation either for taxation or for retirement gratuity or for proposed dividend in the concerned assessees  case had been allowed in computing the assessee s profits under the 1961 Act has not been disputed in other words the second condition indicated above has been satisfied
The question is whether any of these items could be treated as or falls within the expression other reserves occurring in the said rule
The expression reserve  has not been defined in the Act and therefore one would be inclined to resort to its ordinary natural meaning as given in the dictionary but it seems to us that the dictionary meaning though useful in itself may not be sufficient for the dictionaries do not make any distinction between the two concepts reserve  and provision  while giving their primary meanings whereas in the context of the legislation with which we are concerned in the case a clear distinction between the two is implied
According to the dictionaries both oxford and Webster the applicable primary meaning of the word reserve  is tc keep for future use or enjoyment to set apart for some purpose or end in view to keep in store for future or special use to keep in reserve while provision  according to Webster means something provided for future In other words according to the dictionary meanings both the words are more or less synonymous and connote the same idea
Since the rules for computation of capital contained in the Second Schedule to the Act proceed on the basis of the formula of capital plus reserves a formula well known in commercial accountancy it becomes essential to know the exact connotation of the two concepts reserve  and provision  and the distinction between the two as known in commercial accountancy
Besides though the expression reserve  is not defined in the Act it cannot be forgotten that it occurs in a taxing statute which is applicable to companies only and to no other assessable entities and as such the expression will have to be understood in its ordinary popular sense that is to say the sense or meaning that is attributed to it by men of business trade and commerce and by persons interested in or dealing with companies
Therefore the meanings attached to these two words in the provisions of the dealing with preparation of balance sheet and profit and loss account would govern their construction for the purposes of the two taxing enactments
We might mention here that in Cl
T vs Century Spinning and Manufacturing Company 1 this Court after referring to the dictionary 801 meaning of the expression reserve  observed what is the true A nature and character of the disputed sum sum allegedly set apart must be determined with reference to the substance of the matter and went on to determine the true nature and character of the disputed sum by relying upon the provisions of the Indian Companies Act 1913 the form and the contents of the balance sheets required to be drawn up and Regulation 99 in Table A of the 1st Schedule
The distinction between the two concepts of reserve  and provision  is fairly well known in commercial accountancy and the same has been explained by this Court in Metal Box Company of India Ltd vs Their Workmen 1 thus The distinction between a provision and a reserve is in commercial accountancy fairly well known
Provi sions made against anticipated losses and contingencies are charges against profits and therefore to be taken into account against gross receipts in the P and L account and the balance sheet
On the other hand reserves are appropriations of profits the assets by which they are represented being retained to form part of the capital employed in the business
Provisions are usually shown in the balance sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietor s interest
See Spicer and Pegler s Book keeping and Accounts 15th Edition page 42
In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the P and L account a reserve is an appropriation of profits the asset or assets by which it is represented being retained to form part of the capital employed in the business
Bearing in mind the aforesaid broad distinction we will briefly indicate how the two concepts are defined and dealt with by the 
Under section 210 of the it is incumbent upon the Board of Directors of every company to lay before the annual general meeting of its share holders a the annual balancesheet and b the profits and loss account pertaining to the previous 802 financial year
Section 2111 provides that every balance sheet of a company shall give a true and fair view of the state of affairs of the company as at the end of the financial year and shall subject to the provisions of this section be in the form set out in of Schedule VI or near thereto as circumstances admit or in such other from as may be approved by the Central Government either generally or in any particular case while section 2112 provides that every profit and loss account of a company shall give a true and fair view of the profit or loss of the company for the financial year and shall subject as aforesaid comply with the requirements of of r Schedule VI so far as they are applicable thereto
In other words the preparation of balance sheet as well as profit and loss account in the prescribed forms and laying the same before the share holders at the annual general meeting are statutory requirements which the company has to observe
The Form of balance sheet as given in of Schedule VI contains separate heads of reserves and Surpluses  and current liabilities and provisions  and under the sub head reserves  different kinds of reserves are indicated and under sub head provisions  different types of provisions are indicated is the interpretation clause setting out the definitions of various expressions occurring in and Il and the expressions reserve  provision  and liability  have been defined in cl 7 thereof
Material portion of cl
7 of runs as under 1 For the purposes of and II of this Sche dule unless the context otherwise requires a the expression provision shall subject to sub
2 of this clause mean any amount written off or retained by way of providing for depreciation renewals or diminution in value of assets or retained by way of providing for any known liability of which the amount cannot be determined with substantial accuracy b the expression reserve shall not subject as aforesaid include any amount written off or retained by way of providing for depreciation renewals or diminution in value of assets or retained by way of providing for any known liability c x x x x x x x x x 803 and in this sub clause the expression liability shall include A all liabilities in respect of expenditure contracted for and all disputed or contingent liabilities
2 Where a any amount written off or retained by way of providing for depreciation renewals or diminution in value of assets not being an amount written off in relation to fixed assets before the commencement of this Act or b any amount retained by way of providing for any known liability is in excess of the amount which in the opinion of the directors is reasonably necessary for the purpose the excess shall be treated for the purposes of this Schedule as a reserve  and not a provision 
 On a plain reading of cl
71 a and b and cl
72 above it will appear clear that though the term provision  is defined positively by specifying what it means the definition of reserve  is negative in form and not exhaustive in the sense that it only specifies certain amounts which are not to be included in the term reserve 
In other words the effect of reading the two definitions together is that if any retention or appropriation of a sum falls within the definition of provision  it can never be a reserve but it does not follow that if the retention or appropriation is not a provision it is automatically a reserve and the question will have to be decided having regard to the true nature and character of the sum so retained or appropriated depending on several factors including the intention with which and the purpose for which such retention or appropriation has been made because the substance of the matter is to be regarded and in this context the primary dictionary meaning of the term reserve  may have to be availed of
But it is clear beyond doubt that if any retention or appreciation of a sum is not a provision that is to say if it is not designated to meet depreciation renewals or diminution in value of assets or any known liability the same is not necessarily a reserve
We are emphasising this aspect of the matter because during the hearing almost all counsel for the assessees strenuously contended before us that once it was shown or became clear that the retention or appreciation of a sum out of 804 profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a reserve
The fallacy underlying the contention becomes apparent if the negative and non exhaustive aspects of the definition of reserve are borne in mind
Having regard to type of definitions of the two concepts which are to be found in cl 7 of Part
III the proper approach in our view would be first to ascertain whether the particular retention or appropriation of a sum falls within the expression provision  and if it does then clearly the concerned sum will have to be excluded from the computation of a capital but in case the retention or appropriation of the sum is not a provision as defined the question will have to be decided by reference to the true nature and character of the sum so retained or appropriated having regard to several factors as mentioned above and if the concerned sum is in fact a reserve then it will be taken into account for the computation of capital
Having thus indicated the proper approach to be adopted we shall proceed to deal with the three items of appropriation being a provision for taxation b provision for retirement gratuity and c provision for proposed dividends in the case of concerned assessee companies in these Appeals and Tax Reference Cases
Dealing first with the item of appropriation by way of provision for taxation which arises in Civil Appeal No 8601973 Vazir Sultan Tobacco Company Civil Appeal No 1614 NT 1978 Ballarpur Industries Ltd Review Petition No 501980 Ms Bengal Paper Mills Co Ltd and Tax Reference Cases Nos 2  31977 Ms Echjay Industries Pvt
Ltd the common question is whether the concerned amounts appropriated or set apart by these assessee companies from out of the profits and other surpluses by way of making provision for taxation constitute a provision or a reserve on the relevant date being the first day of the previous year relevant to the assessment year in question  Taking Vazir Sultan Tobacco Company s case as an illustration for the assessment year 1963 64 the relevant accounting period was the year which ended on September 30 1962 under Rule I of the Second Schedule to the  the first day of the previous year would be october 1 1961 and
therefore the balance sheet of that company as on September 30 1961 and the profits and loss account which ended on September 30 1961 would be relevant
It cannot be disputed that on the expiry of September 30 1961 the assessee company incurred the taxation liability in respect of the profits 805 which it had earned during that year though the exact amount of such liability could not be determined with substantial accuracy at that time and the same would have to be ascertained by reference to rate of taxes applicable to that year
The liability for taxation having thus arisen on the expiry of the last day of the year the setting apart of the sum of Rs 3368360 by the Board of Directors will have to be regarded as a provision for a known and existing liability the quantification whereof bad to be done later
On principle therefore it seems to us clear that the item of Rs 3368360 which had been set apart by the Board of Directors for taxation must be regarded as a provision and cannot be regarded as a reserve
Similar would be the position in regard to the appropriations for taxation made by the other assessee companies mentioned earlier
In this context a reference to this Court s decision in the case of Kesoram Industries and Cotton Mills Ltd vs Commissioner of Wealth Tax Central Calcutta  would be useful
In that case the question was whether a certain amount which had been set apart as provision for payment of income tax and super tax was a debt owed within the meaning of section 2m of the  as on March 31 1957 which was the valuation date and as such was deductible in computing the net wealth of the appellant company
In its balance sheet for the year ending March 31 1957 the appellant company had shown a certain amount as provision for payment of income tax and super tax in respect of that year of account and this Court took the view that the expression debt owed within the meaning of section 2m of the could be defined as the liability to pay in presenti or in futuro an ascertainable sum of money and that the liability to pay income tax was a present liability though the tax became payable after it was quantified in accordance with ascertainable data that there was a perfected debt on the last date of the accounting year and not a contingent liability
The Court further observed that the rate was always easily ascertainable that if the Finance Act was passed it was the rate fixed by that Act if the Finance Act was not yet passed it was the rate proposed in the Finance Bill pending before the Parliament or the rate in force in the preceding year whichever was more favourable to the assessee and that all the ingredients of a debt were present and it was a present liability of an ascertainable amount and that therefore the amount of provision for payment of income tax and super tax in respect of the year of account ending March 31 1957 was a debt H 806 owed within the meaning of section 2m on the valuation date namely March 31 1957 and was as such deductible in computing the net wealth
The ratio of this decision clearly suggests that the appropriation of the amounts set apart by the assessee companies before us for taxation would constitute a provision made by them to meet a known and existing liability and as such the concerned amounts would not be includible i n capital computation
Counsel for the assessee company in Vazir Sultan Tobacco Company s case however attempted to raise a further plea that the provision for taxation in the sum of Rs 3368360 was an excess provision in the sense it was in excess of the amount which was reasonably necessary for the purpose of taxation and there ore the excess should be treated as a reserve and not a provision and in this behalf reliance was placed on cl
7 2 of Part III of Schedule VT and three decisions of the Madras High Court Commissioner of Income tax Madras vs Indian Steel Rolling Mills Ltdl of the Himachal Pradesh High Court in Hotz Hotels Pvt Ltd vs Commissioner of Income Tax Haryana HP and Delhi2 and of Allahabad High Court in Commissioner of Income Tax Delhi vs Modi Spinning and Weaving Mills3
There could be no dispute about the principle that if provision for a known or existing liability is made in excess of the amount that would be reasonably necessary for the purpose 13 the excess shall have to be treated as a reserve and therefore would be includible in the capital computation but no such case was made out by the assessee company at any stage of the assessment proceedings either before the Taxing Authorities or even before the Tribunal or the High Court and in the absence of any such plea having been raised at any stage of the proceedings it will not be proper for this Court to allow the assessee company to raise such a plea which will need investigation into facts for the first time in its appeal before this Court
The contention is therefore rejected
Dealing next with the item of appropriation made for retirement gratuity which arises only in Civil Appeal No 8601973 Vazir Sultan Tobacco Co the question is whether the sum of Rs 9O8106 appropriated or set apart by the assessee company from out of its profits and other surpluses by way of providing for retirement gratuity is a provision or a reserve on the relevant date 807 viz 1101961  Counsel for the assessee compaoy vehemently urged before us that this appropriation had not been allowed as a deduction in the income tax assessment proceedings of the company for the relevant assessment year on the ground that it was in the nature of a reserve and the entire sum minus the actual payments was added back to the income and profits of the assessee company and if that be so in the super profit tax assessment it cannot be treated as a provision and excluded from capital computation
According to him there could not be two different treatments for the same item in income tax assessment and super profit tax assessment
He pointed out that this contention was specifically urged in the appeal before the Appellate Assistant Commissioner but was wrongly rejected
He further submitted that no actuarial valuation had been undertaking but ad hoc amount was appropriate or transferred to gratuity reserve and as such the same should have been treated as a reserve and included in capital computation
On the other hand counsel for the Revenue seriously disputed the last submission and contended that it was never the case of the assessee company either before the Taxing Authorities or before the Tribunal or before the High Court that the appropriation was or an ad hoc sum without undertaking any actuarial valuation
It must be observed that whereas the assessee company did urge a contention before the lower authorities that different treatments for the same item could not be given for purpose of income tax assessment and super profit tax assessment the assessee company did not clarify by placing material on record as to whether the appropriation of the amount was based on any actuarial valuation or whether it was an appropriation of an ad hoc amount an aspect which as we shall presently point out has a vital bearing on the question whether the appropriation could be treated as a provision or a reserve
In the absence of proper material touching this vital aspect we are afraid the issue in question will have to be remanded to the Taxing Authorities through the Tribunal for disposal in the light of the well settled principles in that behalf which we shall presently indicate
Ordinarily an appropriation to gratuity reserve will have to be regarded as a provision made for a contingent liability for under a scheme framed by a company the liability to pay gratuity to its employees on determination of employment arises only when the employment
Of the employee is determined by death incapacity retirement or resignation an event cessation of employment Certain to happen in the service career of every employee moreover the amount of gratuity payable is usually dependent on the emp 808 loyee s wages at the time of determination of his employment and the number of years of service put in by him and the liability accrues and enhances with completion of every year of service but the company can work out on an actuarial valuation its estimated liability ie discounted present value of the liability under the scheme on a scientific basis and make a provision for such liability not all at once but spread over a number of years
It is clear that if by adopting such scientific method any appropriation is made such appropriation will constitute a provision representing fairly accurately a known and existing liability for the year in question if however an ad hoc sum is appropriated without resorting to any scientific basis such appropriation would also be a provision intended to meet a known liability though a contingent one for the expression liability  occurring in cl
7 1 a of Part III of the Sixth Schedule to the includes any expenditure contracted for and arising under a contingent liability but if the sum so appropriated is shown to be in excess of the sum required to meet the estimated liability discounted present value on a scientific basis it is only the excess that will have to be regarded as a reserve under cl
7 2 of to the Sixth Schedule
In the above context we might refer to one English case decided by the House of Lords and two or three decisions of this Court which seem to lead to aforesaid propositions
In Southern Railway of Peru Ltd vs Owen1 an English Company operating a railway in Peru was under the laws of that country liable to pay its employees conpensation on the termination of their services either by dismissal or by notice or on such termination by death or efflux of contractual time
The compensation so paid was an amount equivalent to one month s salary at the rate in force at the date of determination for every year of service
In the computation of taxable income under the Income tax Act 1918 the company claimed to be entitled to charge against each year s receipts the cost of making provision for the retirement payments which would ultimately be thrown on it calculating the sum required to be paid to each employee if he retired without forfeiture at the close of the year and  setting aside the aggregate of what was required in so far as the year had contributed to the aggregate
The House of Lords rejected the deductions on the ground that in calculating the deductions the company had ignored the factor of discount
But their Lordships recognised the principle that the company was entitled to charge against each year s receipts the cost of making the 809 provision for the retirement which would ultimately be payable as the company had the benefit of the employee s services during that year provided the present value of the future payments could be fairly estimated
Lord MacDermott observed at page 345 as follows  as a general proposition it is I think right to say that in computing his taxable profits for a particular year B a trader who is under a definite obligation to pay his employees for their services in that year an immediate payment and also a future payment in some subsequent year may properly deduct not only the immediate payment but the present value of the future payment provided such present value can be satisfactorily determined or fairly estimated In Standard Mills Co Ltd vs Commissioner of Wealth Tax Bombay 1 the question for decision was whether an estimated liability under gratuity schemes framed under industrial awards amounted to debts  and could be deducted while computing the net wealth of the assessee company under the Wealth Tax Act
This Court held in view of the terms of section 2 m of that Act that as the liability lo pay gratuity was not in praesenti but would arise in future on determination of the service i e
On the retirement death or termination the estimated liability under the schemes would not be a debt  and therefore could not be deducted while computing the net wealth
The House of Lords decision in the case of Southern Rly
Of Peru Ltd supra was distinguished by this Court as having no relevance to the question before it on the ground that the House of Lords in that decision was concerned in determining the deductibility of the present value of a liability which may arise in future in the computation of taxable income for the relevant year under the income tax laws
It will thus appear that this Court was of the view that though such a liability is a contingent liability and therefore not a debt  under section 2m of the it would be deductible under the Income Tax Act while computing the taxable profits in other words different considerations would apply to cases arising under the and the Income Tax Act
In Matal Box Co s case supra this Court was concerned with the nature of liability under a scheme of gratuity in the context of the and the question related to a sum 810 of Rs 1838 lakhs being the estimated liability under the two gratuity schemes framed by the company which was deducted from the gross receipts in the P  L Account it being contended on behalf of the workmen that such deduction was not justified while determining the available surplus  and the allocable surplus  for payment of bonus to them under the 
The Court rejected the contention and adverting to the decision of House of Lords in the case of Southern Rly
Of Peru Ltd supra held that an estimated liability under gratuity schemes even if it amounted to a contingent liability and was not a debt  under the Wealth Tax Act if properly ascertainable and its present value was fairly discounted was deductible from the gross receipts while preparing the P  L Account
The material portion of the head note appearing at page 54 of the report runs thus Contingent liabilities discounted and valued as necessary can be taken into account as trading expenses if they are sufficiently certain to be capable of valuation and if profits cannot be properly estimated without taking them into consideration
An estimated liability under a scheme of gratuity if properly ascertainable and its present value is discounted is deductible from the gross receipts while pre paring the P  L account
This is recognised in trade circles and there is nothing in the Bonus Act which prohibits such a practice
Such a provision provides for a known liability of which the amount can be determined with substantial accuracy
It cannot therefore be termed a reserve
Therefore the estimated liability for the year on account of a scheme of gratuity should be allowed to be deducted from the gross profits
The allowance is not restricted to the actual payment of gratuity during the year
 At page 62 of the Report this Court observed thus Two questions therefore arise I whether it is legitimate in such a scheme of gratuity to estimate the liability on an actuarial valuation and deduct such estimated liability in the P  L Alc while working out its net profits 2 if it is b whether such appropriation amounts to a reserve or a provision
In the case of an assessee maintaining his accounts on mercantile system a liability already accrued though to be discharged at a future date would be a proper deduction while working out the profits and gains of his business re 811 gard being had to the accepted principle of commercial A practice and accountancy 
It is not as if such deduction is permissible only in case of amounts actually expended or paid
Just as receipts though not actual receipts but accrued due are brought in for income tax assessment so also liabilities accrued due would be taken into account while working out the profits and gains of the business
Again at page 64 of the Report this Court observed thus In the instant case the question is not whether such estimated liability arising under the gratuity schemes amounts to a debt or not
The question that concerns us is whether while working out the net profits a trader can pro vide from his gross receipts his liability to pay a certain sum for every additional year of service which he receives from his employees
This in our view he can do if such liability is properly ascertainable and it is possible to arrive at a proper discounted present value
Even if the n liability is a contingent liability provided its discounted present value is ascertainable it can be taken into account
Contingent liabilities discounted and valued as necessary can be taken into account as trading expenses if they are sufficiently certain to be capable of valuation and if profits cannot be properly estimated without taking them into account
 In the case of Workmen of William Jacks 
Co Ltd vs Management of Jacks  Co Ltd Madras 1 another decision under the Payments of Bonus Act 1965 this Court after referring to the distinction pointed out in Metal Box Co s case between the two concepts provision  and reserve  has observed on page 547 as follows The provision for gratuity furlough salary passage service and commission in the present case was all made in respect of existing and known liabilities though in some cases the amount could not be ascertained with accuracy
It was not a case where it was an anticipated loss or anticipated expenditure which would arise in future
Such provision is therefore not a reserve at all and cannot be added back under item 2 c of the Second Schedule 812 In the above case also the Court was concerned with the question whether particular provision made for gratuity furlough salary passage etc
was a reserve or a provision for the purpose of Second Schedule to the 
At page 546 of the report the Court has categorically observed that all these items namely gratuity furlough salary passage service commission etc
were clearly in respect of liabilities which had already accrued in the years in which the provision was made and were not in respect of anticipated liabilities which might arise in future and therefore the Court held that the said provision was not a reserve but a provision
From the aforesaid discussion of the case law it seems to us clear that the propositions indicated by us earlier clearly emerge
Since in the instant case sufficient material throwing light on the above aspects of the question has not been made available we think it will be in the interest of justice to remand the case through the Tribunal to the taxing authority to decide the issue whether the con cerned amount Rs 9O81061  set apart and transferred to gratuity reserve by the assessee company was either a provision or a reserve and if the latter to what extent The taxing authority will decide the issue in light of the above principles after giving an opportunity to the assessee company to place additional relevant materials before Turning to the last item of appropriation by way of provision for proposed dividends which arises in all these matters except in Tax Reference Case No 511978 of Hyco Products Pvt Ltd the common question is whether the concerned amount appropriated or set apart by the assessee companies from out of the profits and other surpluses by way of making provision for proposed dividends  constituted a provision or a reserve on the relevant date  It is true that under section 27 of the the Directors can merely recommend that a certain sum be paid as dividend but such recommendation does not result in any obligation or liability the obligation or liability to pay the dividend arises only when the share holders at the annual general meeting of the company decide to accept the recommendation and pass a resolution for declaration of the dividend
It is therefore open to the directors to withdraw or modify their recommendation at any time before the shareholders accept the same and it is equally open to the shareholders not to accept the recommendation at all or to declare a dividend of an amount lesser than that recommended by directors
In Kesoram 813 Industries case supra this Court has clarified the aforesaid legal A position by observing at page 772 of the report thus The directors cannot distribute dividends but they can only recommend to the general body of the company the quantum of dividend to be distributed
Under section 217 of the Indian  there shall be attached to every balance sheet laid before a company in general meeting a report by its board of directors with respect to interalia the amount if any which it recommends to be paid by way of dividend
Till the company in its general body meeting accepts the recommendation and declares the dividend the report of the directors in that regard is only a recommendation which may be withdrawn or modified as the case may be
As on the valuation date under the Wealth Tax Act nothing further happened than a mere recommendation by the directors as to the amount that might be distributed as dividend it is not possible to hold that there was any debt owed by the assessee to the share holders on the valuation date
 All that follows from above is that in the instant cases the appropriations of the concerned amounts by the Board of Directors by way of providing for proposed dividend would not constitute provisions  for the appropriations cannot be said to be by way of providing for any known or existing liability none having arisen on the date when the directors made the recommendation much less on the relevant date being the first day of the previous year relevant to the assessment year in question
But as stated earlier this by itself would not automatically convert the appropriation into reserves  regard being had to the negative and non exhaustive character of the definition of reserve  given in cl 7 Ib of Part III of the Sixth Schedule to the Companies A ct
The question whether the concerned amounts in fact constituted reserves  or not will have to be decided by having regard to the true nature and character of the sums so appropriated depending on the surrounding circumstances particularly the intention with which and the purpose for which such appropriations had been made
We have already indicated that according to the dictionaries both oxford and Webster the applicable meaning of the word reserve  is to keep for future use or enjoyment to set apart for some purpose or end in view to keep in store for future or special 814 use to keep in reserve
 In other words the word reserve  as a noun in ordinary parlance would mean something which is kept for future use or stored up for something or set apart for some purpose
It cannot be disputed that a reserve may be a general reserve or specific reserve and all that is required is that an amount should be kept apart for some purpose either general or specific
Eeven so the question is whether the earmarking of a portion of pro fits by the board of directors of a company avowedly for the purpose of distributing dividend would fall within the expression reserve  occurring in rule T of the Second Schedule to the  For this purpose certain tests indicated in some decisions of this Court will have to be considered The first decision of this Court in that behalf is the decision in Century Spinning and Manufacturing Company s ease supra
In that case the material facts were these For the year ending 31st December 1946 the profit of the assessee company whose accounting year was the calendar year was a certain sum according to the profit and loss account
After making provision for depreciation and taxation the balance of Rs 508637 was carried to the balance sheet
This sum was not allowed in computing the profits of the assessee for the purposes of income tax
On 28th February 1946 the Board of directors recommended out of that amount the sum of Rs 492426 should be distributed as dividend and the balance of Rs 16211 was to be carried forward to the next year s account
This recommendation was accepted by the share holders in their meeting on 3rd April 1946 and the amount was shortly afterwards distributed as dividend
In computing the capital of the assessee company on 1st April 1946 under the Business Profits Tax Act 1947 the assessee claimed that the sum of Rs 508637 and the profit earned by it during the period 1st January 1946 to 1st April 1946 should be treated as reserves for the purpose of rule 21 of Schedule IT
The High Court held that the sum of Rs 508637 must be treated as a reserve for the purpose of rule 2 but the profit made by the assessees during the period 1st January 1946 to 1st April 1946 could not be included in the reserves
On appeal to this Court it was held that the sum of Rs 508637 as well as the profits earned by the assessee during the period 1st January 1946 to 1st April 1946 did not constitute reserves within the meaning of rule 2 1 of Schedule II
After noting that the expression reserve  had not been defined in the Business Profits Tax Act 1947 and after noting dictionary meanings of that expression the Court observed 815  What is the true nature and character of the disputed A sum must be determined with reference to the substance of the matter and when this is borne in mind it follows that the 1st of April 1946 which is the crucial date the sum of Rs 508637 could not be called a reserve for nobody possessed of the requisite authority had indicated on that date the manner of disposal or distination
On the other hand B on the 28th February 1946 the directors clearly earmarked it for distribution as dividend and did not make it a reserve
Nor did the company in its meeting of 3rd April 1946 decide that it was a reserve
It remained on the 1st of April as a mass of undistributed profits which were available for distribution and not earmarked as reserve
On the 1st of January 1946 the amount was simply brought from the profit and loss account to the next year and nobody with any authority on that date made or declared a reserve
The reserve may be a general reserve or a specific reserve but there must be a clear indication to show whether it was a reserve either of the one or the other kind
The fact that it constituted a mass of undistributed profits on the 1st Jan 1946 cannot automatically make it a reserve
On the 1st April 1946 which is the commencement of the chargeable accounting year there was merely a recommendation by the directors that the amount in question should be distributed as dividend
Far from showing that the directors have made the amount in question a reserve it shows that they had decided to earmark it for distribution as dividend
 The decision clearly lays down that the true nature and character of the appropriation must be determined with reference to the substance of the matter obviously this means that one must have regard to the intention with which and the purpose for which appropriation has been made such intention and purpose being gathered from the surrounding circumstances
In that behalf the following aspects mentioned in the judgment provide some guidelines a a mass of undistributed profits cannot automatically become a reserve and that somebody possessing the requisite authority must clearly indicate that a portion thereof has been earmarked or separated from the general mass of profits with a view to constituting it either a general reserve or a specific reserve b the surrounding circumstances should make it apparent that the amount so ear marked or set apart is in fact a reserve to be utilised in future for a specific purpose and on a specific occasion and c a clear conduct on the 816 part of the directors in setting apart a sum from out of the mass of undistributed profits avowedly for the purpose of distribution as dividend in the same year would run counter to any intention of making that amount a reserve
It was because these aspects obtained in the case that this Court took the view that neither the sum of Rs 508637 nor the profits earned by the assessee during the period 1st January 1946 to 1st April 1946 constituted reserve within the meaning of Rule 21 of Second Schedule of the Business Profits Tax Act 1947
Two more decisions of this Court one in First National City Bank vs Commissioner of Income Tax 1 and the other in Commissioner of Income Tax Central Calcutta vs Standard Vacuum oil Co2 which provide two more guidelines may now be considered
In both these cases the Court was concerned with the question whether the amount set apart as undivided profit or set apart as earned surplus in accordance with the system of accountancy which obtained in the United States amounted to a reserve liable to be included in the capital computation under rule 2 of Schedule II of the Business Profits Tax Act 1947
In both the cases the assessees were non resident companies and followed the system of accounting that obtained in the American commercial world
In the first case Justice Kapur speaking for the court pointed out the difference between the two system of accounting at Page 23 of the Report thus In India at the end of an year of account the unallocated profit or loss is carried forward to the account of the next year and such unallocated amount gets merged in the account of that year
In the system of accounting in the USA each year s account is self contained and nothing is carried forward
If afteral locating the profits to diverse heads mentioned above any balance remains it is credited to the undivided profits which become part of the capital fund
If in any year as a result of the allocation there is loss the accumulated undivided profits of the previous years are drawn upon and if that fund is exhausted the banking company draws upon the surplus
In its very nature the undivided profits are accumulation of amounts of residue on hand at the end of the year of successive periods of accounting and these amounts are by the prevailing accounting practice and the Treasury directions regarded as a part of the capital fund of the banking company  817 After quoting with approval the above observations Mr A Justice Shah in Standard Vacuum Oil Co s case went on to observe at page 695 of the report as follows It is true that the court in that case was dealing with a case of a banking company but the characteristics noted are not peculiar to the accounts of a banking company they are applicable with appropriate variations to the accounts of all companies in which different nomenclatures are used in the accounts to designate the residue on hand as surplus   undivided profits  or earned surplus 
Where the balance of net profits after allocation to specific reserves and payment of dividend are entered in the account under the caption earned surplus  it is intended thereby to designate the fund which is to be utilised for the purpose of the business of the assessee
Such a fund may be regarded according to the Indian practice as general reserve This Court in the first case held that the amount designated as undivided profits which was available for continuous future use of the business for the bank was a part of the reserve and had to be taken into account while computing the capital under rule 21 of Schedule II of the Business Profits Tax Act similarly in the second case the Court held that the amount which had been allocated to earned surplus which was intended for the purpose of the business of the assessee company and was used in subsequent years in business represented  reserves within the meaning of rule 2 of Schedule II of the Business Profits Tax
From these two decisions two aspects emerge very clearly
In the first place the nomenclature accorded to any particular fund which is set apart from out of the profits would not be material or decisive of the matter and secondly having regard to the purpose of rule of 2 of Schedule II of the Business Profits Tax Act 1947 if any amount set apart from out of the profits is going to make up capital fund of the assessee and would be available to the assessee for its business purposes it would become a reserve liable to be included in the capital computation of the assessee under that Act
The provisions of the also lend support to the proposition that an appropriation for proposed dividend would not amount to a reserve
Section 2171 runs thus 818 2171 There shall be attached to every balance sheet laid before a company in general meeting a report by its Board of directors with respect to a the state of the company s affairs b the amounts if any which it proposes to carry to any reserves in such balance sheet c the amounts if any which it recommends should be paid by way of dividend d        Regulation 87 of Table A in the First Schedule runs thus 871 The Board may before recommending any dividend set aside out of the profits of the company such sums as it thinks proper as a reserve or reserves which shall at the discretion of the Board be applicable for any purpose to which the profits of the company may be properly applied including provision for meeting contingencies or for equalising dividends and pending such application may at the like discretion either be employed in the business of the company or be invested in such investments other than shares of the company as the Board may from time to time think fit
2 The Board may also carry forward any profits which it may think prudent not to divide without setting them aside as a reserve
 The aforesaid provisions read together clearly show that creating re serves out of the profits is a stage distinct in point of fact and anterior in point of time to the stage of making recommendation for payment of dividend and the scheme of the provisions suggests that appropriation made by the Board of Directors by way of recommending a payment of dividend cannot in the nature of things be a reserve
If regard be had to the guide lines indicated above as well as the provisions of the specified above we are clearly of the opinion that the appropiations made by the directors for proposed dividend in the case of the concerned assessee companies do not constitute reserves  and the concerned amounts so set apart would have to be ignored or excluded from capital computation
819 Since we have reached the aforesaid conclusion on first principles and on the basis of the guidelines discussed above it is unnecessary for us to go into or discuss the scope and effect of the Explanation to Rule 1 in Second Schedule to The though it seems to us prime facie that the Explanation being clarifacatory in nature is declaratory of the existing legal position
Dealing with the last case of Hyco Products Pvt
Ltd Bombay Tax Reference Case No 5 of 1978 where the question pertaining to dividend but in a different form arises for consideration the admitted facts may briefly be stated
The question relates to the Assessment Year 1974 75 the relevant previous year being calendar year 1973 and the material date being 111973
After the accounts of the calendar year 1972 were finalised the directors transferred out of the profits of Rs 6103382 of that year a sum of Rs 2977000 to the General Reserve
With such tranfer the General Reserve of the assessee company as on 111973 stood at Rs 8607712
At the end of the calendar year 1973 admittedly the directors did not make any provision for proposed dividend  in its accounts but there was note on the Balance Sheets to the following effect The directors have recommended dividend for the year 1972 at the rate of Rs 10 per share free of tax
The dividend if approved by the share holders at the forth coming Annual General Meeting will be paid out of General Reserve and no separate provision has been made therefor in the accounts
 At the Annual General Meeting held on June 30 1973 dividend of Rs 310450 was declared by the share holders and the same was soon thereafter paid out of the said General Reserve
In the surtax assessment proceedings under the 1964 Act the assessee claimed that the entire general reserve which stood as Rs 8607712 as on 111973 should be taken into account while computing the capital of the assessee company
But the taxing officer reduced the general reserves by the aforesaid sum of Rs 310450 and only the balance of Rs 8297262 was added in computing the capital
The Appellate Assistant Commissioner as well as the Income Tax Appellate Tribunal Bombay confirmed the order of the Taxing officer
The Tribunal took the view that though it was not a case of pro posed dividend  since the amount actually paid out as dividend was a smaller sum than the amount transferred from out of profits to 820 the General Reserve that amount could not form part of the reserve and therefore the General Reserve as reduced by Rs 310450 was properly taken into account for the purpose of computation of the capital as on the relevant date
At the instance of the assessee the Tribunal has referred the following question of law directly to this Court for its opinion under section 257 of the Income Tax Act 1961 read with section 18 of the  Whether on the facts and in the circumstances of the case the Tribunal was justified in excluding a sum of Rs 310450 representing the dividends declared for the calendar year 1972 from the General Reserves on the opening date of the previous year while computing the capital under the Second Schedule of the for the assessment year 1974 75 Counsel for the assessee company contended that after con ceding that this was not a case of proposed dividend the Tribunal erred in holding that the sum of Rs 310450 representing the dividends paid out from the General Reserve was liable to be excluded while computing the capital of the company as on 111973 for purposes of sur tax assessment under the 1964 Act
According to him under section 2051 of the dividend can be paid from out of the current year s profits or profits of any previous financial year or years and there is no presumption in law or in commercial accounting that a dividend has to be paid either from the current year s profits or from the past year  s profits
He further urged that once from out of the current year s profit a certain sum is transferred to the General Reserve it merges into the latter and the General Reserve so augmented becomes a conglomerate fund and if out of such conglomerate fund any sum is recommended or paid out as dividend it will be difficult to say that such payment has come out of the portion of current year s profits that has been transferred and merged and there is no reason why the principle Last in First out  should be invoked for drawing the inference that the payment has been made out of the current year s profits
He pointed out that such a principle was applied by the Bombay High Court in two decisions namely Commissioner of Income Tax Bombay City l vs Bharat Bijlee Ltd1 and Commissioner of Income Tax Bombay City ll vs Marrior India Ltd2 but urged that there 821 was no warrant for it
In support of his contention that the entire A General Reserve of Rs 8607712 without any deduction should have been taken into account while computing the capital of the assessee company counsel relied upon a decision of the Andhra Pradesh High Court in Super Spinning Mills Ltd vs Commissioner of Income Tax Hyderabadl
Alternatively counsel pointed out that as far as stock valuation is concerned a question often arises whether the stock on hand at the end of the year is to be valued at the closing price or at the initial purchase price and in Advanced Accounting  by R Keith Yorston and E Bryan Smyth a treatise on the principles and practice of accounting in Australia three methods of valuing the closing stock have been indicated at pages 441 and 442 of Vol
II 5th Edn of the treatise namely a First in First out b Last in First out and c Average Cost
In regard to these three methods the authors have stated thus 
a First in First out The assumption underlying this method is that the oldest stock is used or issued first or that sales are made in the order in which the goods are purchased or produced
If there are several lots of goods at different prices they are regarded as being exhausted in the order of purchase
On a rising market this would write off the lower priced lots first and on a falling market the higher priced lots would go first b Last in First out
This method assumes that the items of stock purchased are the first to be issued or sold and thus the stock remaining is valued at the cost of the earlier purchase c Average Cost
On this basis issues of stocks are valued at the weighted average cost of the stock on hand at the beginning and of the purchases less any issues already made
 822 Counsel for the assessee urged that for determining whether the entire General Reserve of Rs 8607712 or reduced General Reserve of Rs 8297262 should be taken into account for capital computation either the First in First out  principle should be adopted if not only a proportionate deduction should be made and the balance should be held to be includible in capital computation particularly because the payment of dividend has been from a conglomerate fund
It is not possible to accept either of these contentions urged by counsel for the assessee company
It is true that under section 2051 a of the it is open to the directors to recommend and the share holders to approve payment of dividends either from the current year s profits or from the past year s profits
It is also true that on transfer of a portion of current year s profits to the General Reserve the augmented General Reserve becomes a conglomerate fund but having regard to the natural course of human conduct of hard headed men of business and commerce it is not difficult to predicate that the dividends would ordinarily be paid out from the current income rather than from the past savings unless the directors in their report expressly or specifically state that payment of dividends would be made from the past savings
From the commercial point of view if any amount is required for incurring any expenditure or making any disbursement like distribution of dividends in a current year then ordinarily the same will come out of the current income of the company if it is available and only if the same is insufficient then the past savings will be resorted to for the purpose of incurring that expenditure or making that disbursement such a course would be in accord with the common sense point of view
We may point out that this aspect of the matter was not considered by the Andhra Pradesh High Court in Super Spinning Mills Ltd case supra and the view of the Bombay High Court in the case of Bharat Bijlee Ltd supra and Marrior India Ltd supra commends itself to us
Even in regard to the question of valuing the closing stock the learned authors of the treatise referred to by the counsel for the assessee company merely indicate three methods for such valuation and it will be open to a commercial concern to avail of any one method
In our view in the context of the question whether while incurring any expenditure or making any disbursement a commercial concern will resort to current income or past savings the normal rule in the absence of express indication to the contrary would be to resort to the current income rather than past savings
823 In our view therefore the Tribunal was right in excluding the sum of Rs 310450 from the General Reserves while computing the capital of the assessee company for the assessment year 974 75 in the absence of express indication to the contrary
In the result Civil Appeal No 1614NT of 1978 and Review Petition No 57 of 1980 are dismissed
Civil Appeal No 860 of g 1973 is partly allowed and the issue whether the appropriation for retirement gratuity is a reserve or not is remanded to the Taxing Authority and the rest of the appeal is dismissed
In Tax Reference Cases Nos 2 and 3 of 1977 and No S of 1978 the questions referred to us are answered in favour of the Department and against the assessee companies
Each party will bear its own costs in all the matters
AMARENDRA NATH SEN J
At the outset I wish to observe that I have been somewhat diffident in hearing these matters
I felt a little embarrassed as I found that as a Judge of the High Court at Calcutta I had an occasion to consider some of the questions in the case of Braithwaite and Co India Ltd vs Commissioner of
Income Tax West Bengal I Income Tax Reference No 262 of 1969
As I have already considered some of the questions and have expressed my views on the same in the judgment delivered by me in the said reference I was wondering whether I should hear these appeals
The members of the Bar however represented to me that they had not only no objection to my hearing these appeals but they also wanted me to hear these appeals
They further represented that most of the Judges of this Court had on some occasion or other considered these questions
They further stated that if I would decline to take up these matters not only the members of the Bar who had come from various parts of the country for these appeals would be seriously inconvenienced but also the litigant public who had been waiting for years for the hearing of these matters would be prejudiced
It was further pointed out to me that the judgment which was delivered by me was not under appeal and further it would appear from the judgment which I had earlier delivered in Braithwaite matter there was in fact a concession made by the learned counsel appearing on behalf of the assessee that the said case was covered by the decision of the Supreme Court in the case of Commissioner of Income tax Bombay City vs Century Spinning and Manufacturing Co Ltd   The learned counsel appearing on behalf 824 of the parties further represented to me that the earlier judgment was delivered by me as a Judge of the High Court and it was always open to me to reconsider  my view particularly as a Judge of this Court after hearing the submissions to be made by the learned counsel appearing on behalf of the parties
In view of the aforesaid representations and submissions made by the learned lawyers I was persuaded to hear these appeals with my learned brothers to avoid inconvenience not only to the lawyers but to the litigant public
I have also had no doubt in my mind that if I felt after hearing the submissions made by the learned counsel appearing on behalf of the parties in these appeals that the earlier judgment delivered by me was wrong and incorrect I would have no hesitation in reconsidering my earlier decision
I do not propose to set out the facts of this case at any length in this judgment
The facts have been fully and correctly set out in the judgment of my learned brother Tulzapurkar J My learned brother in his judgment has also dealt with the various arguments which were advanced from the Bar and has also considered the decisions which were cited
I propose to notice only some of the decisions which to my mind are particularly important for decision of the question whether the provision made in the balance sheet for payment of dividend to the share holders recommended by the Board of Directors constituted a reserve  and the amount so set apart should be taken into account in computing the capital of the company for the purpose of Super Profits Tax Act 1963
It may be noted that in the Act itself the expression reserve  has not been defined
In the case of Commissioner of Income tax Bombay City vs Century Spinning and Manufacturing Co Ltd supra this Court had the occasion to consider the meaning of the word reserve  while dealing with a case under Business Profits Tax Act XXI of 1947
In this Act also there were similar provisions with regard to computation of the capital of the Company and the assessee had claimed that the amount recommended by the Board of Directors and earmarked for payment of the dividend to the share holders should be treated as reserve  and should be taken into consideration in computing the capital of the assessee
The Supreme Court observed at pp
503 504 as follows  The term reserve  is not defined in the Act and we must resort to the ordinary natural meaning as understood 825 in common parlance
The dictionary meaning of the word reserve  is  1 a To keep for future use or enjoyment to store up for some time or occasion to refrain from using or for enjoying at once
b To keep back or hold over to a later time or place or for further treatment
To set apart for some purpose or with some end in view to keep for some use
To retain or preserve for certain purposes oxford Dictionary Vol 
VIII P 513 In Webster s New International Dictionary Second Edition page 2118 reserve  is defined as follows 1
To keep in store for future or special use to keep in reserve to retain to keep as for oneself
To keep back to retain or hold over to a future time or place
To preserve
 The Supreme Court further observed at p 504 What is the true nature and character of the disputed sum must be determined with reference to the substance of the matter The Supreme Court held at p 504 505 as follows  A reserve in the sense in which it is used in rule 2 can only mean profit earned by a company and not distributed as dividend to the shareholders but kept back by the directors for any purpose to which it may be put in future
Therefore giving to the reserve  its plain natural meaning it is clear that the sum of Rs 508637 was kept in reserve by the company and not distributed as profits and subjected to taxation
Therefore it satisfied all the requirements of rule 2
The Directors had no power to distribute the sum as dividend
They could only recommend as indeed they did and it was upto the shareholders of the company to accept that recommendation in which case alone the 826 distribution could take place
The recommendation was accepted and the dividend was actually distributed
It is therefore not correct to say that the amount was kept back
The nature of the amount which was nothing more than the undistributed profits of the Company remained unaltered
Thus the profits Lying unutilised and not specially set apart for any purpose on the crucial date did not constitute reserves within the meaning of Schedule II rule 21
 The Supreme Court also referred to Sl31 a and 132 of the Indian 
Referring to these sections the Supreme Court observed at p 505 as follows Section 131 a enjoins upon the directors to attach to every balance sheet a report with respect to the state of company s affairs and the amount if any which they recommend to be paid by way of dividend and the amount if any which they propose to carry to the reserve fund general reserve or reserve account
The latter section refers to the contents of the balance sheet which is to be drawn up in the Form marked in Schedule III
This Form contains a separate head of reserves
Regulation 99 of the Ist Schedule
Table A lays down that the directors may before recommending any dividend set aside out of the profits of the company such sums as they think proper as a reserve or reserves which shall at the discretion of the directors be applicable for meeting contingencies or for equalising dividends or for any other purpose to which the profits of the company may be properly applied  The Regulation suggests that any sum out of the profits of the company which is to be made asa reserve or reserves must be set aside before the directors recommend any dividend
In this case the directors while recommending dividend took no action to set aside any portion of this sum as a reserve or reserves
Indeed they never applied their mind to this aspect of the matter
The balance sheet drawn up by the assessee as showing the profits was prepared in accordance with the provisions of the Indian 
These provisions also support the conclusion as to what is the true nature of a reserve shown in a balance sheet
 In the case of Commissioner of Income Tax vs Standard Vacuum oil Co 1 this Court had occasion to consider the decision in 827 the case of Commissioner of Income tax vs Century Spinning and A Manufacturing Co Ltd supra
Dealing with the said decision of this Court held at p 697 98 as follows  The Court was dealing in this case with the accounts of an Indian Company the balance sheet of which was prepared according to the provisions of the Indian Companies Act 1913
Regulation 99 of the First Schedule Table A required that reserves must be set apart before the directors recommended any dividend but out of the profits of the company no amount was set apart towards reserves before the directors recommended payment of dividend to the shareholders
The identity of the amount remaining on hand at the foot of the profit and loss account was not preserved
rt is on these facts that the court held that there was no allocation of the amount to reserve and from the mere fact that it was carried forward in the account of the next year and ultimately applied in payment of dividend it could not be said to be specifically set apart for any purpose at the relevant date i e the end of the year of account This Court then proceeded to hold at p 697 98 as follows  We are in this case dealing with a foreign company and the system of accounting followed by the company is different in important respects from the system which obtains in India
Companies in India maintain diverse types of reserves such as capital reserve reserve for redemption of debentures reserve for replacement of plant and machinery reserve for buying new plant to be added to the existing ones reserve for bad and doubtful debts reserve for payment of dividend and general reserve
Depreciation reserves within the limit prescribed by the Income tax Act or the Rules thereunder is the only reserve which is a permissible allowance in the computation of taxable profits
In its ordinary meaning the expression reserve  means something specifically kept apart for future use or for a specific occasion
 In the case of Metal Box Company of India Ltd vs Their Workmen 1 this Court while dealing with a case under the pay 828 ment of Bonus Act 1965 had occasion to consider the expression reserve  and its meaning for the purpose of the said Act
This Court held at p 67 68 as follows   The next question is whether the amount so provided is a provision or a reserve
This distinction between a provision and a reserve is in commercial accountancy fairly well known
Provisions made against anticipated losses and contingencies are charges against profits and therefore to be taken into account against gross receipts in the P  L account and the balance sheet
On the other hand reserves are appropriations of profits the asset by which they are represented being retained in form part of the capital employed in the business
Provisions are usually shown in the balance sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietor s interest see Spicer and Pegler s Book keeping and Accounts 15th Edn page 42
An amount set aside out of profits and other surpluses not designed to meet a liability contingency commitment or diminution in value of assets known to exist at the date of the balance sheet is a reserve but an amount set aside out of profits and other surpluses to provide for any known liability of which the amount cannot be determined with substantial accuracy is a provision see William Pickles Accountancy Second Edn
p 192 Part III clause 7 Schedule VI to the Companies Act 1958 which derives provision and reserve In the case of Commissioner of Income tax vs Mysore Electrical Industries Ltd1 the facts were briefly as follows Out of the profits of the company for the accounting period ending March 31 1963
the Directors of the company appropriated the following amounts towards reserves on August 8 1963 i Rs 256000 as plant modernisation and rehabilitation reserve ii Rs 89557 as development rebate reserve
The question was whether these amounts could be included in computing the capital of the respondent as on April 1 1963 under rule 1 of Schedule II to the 
for the purpose of the statutory deduction for the assessment year 1961 65 The contention of the department was that since the appropriations were made on 8th August 1963 they could not be treated as components of capital as on the first day of the previous year ie 1st April 1963
Negativ 829 ing the contention of the department this Court held that the determination of the Directors to appropriate the amounts of the three items of reserve on 8th August 1963 had to be related to first April 1963 viz the beginning of the accounts for the new year and had to be treated as effective from that day and the said three items had to be added to the other items for computation of the capital of the company as on first April 1963 under rule 1 of Schedule II to the 
It may be noted that in this case before the trial court a claim had been made by the company that a sum of Rs 315000 representing dividend reserve was to be considered in computing the assessee s capital for the purpose of and the High Court had rejected this claim
As against the rejection of this claim by the High Court no appeal had been preferred by the assessee to the Supreme Court
The Supreme Court while considering the three items which came up for consideration before it held as already noted that the decision of the directors to appropriate the amounts to these three items of reserve on 8th August 1963 had to be related to 1st April 1963 and this Court observed at pp
560 570 as follows It is well known that the accounts of the company have to be made up for a year up to a particular day
In this case that day was the 31st March 1963
If it was reasonably practicable to make up the accounts up to the 31st March 1963 and present the same to the directors of the respondent on April 1 1963 they could have made up their minds on that day and declared their intention of appropriating the said and other sums to reserves of different kinds
But the fact that they could not do so for the simple reason that the calculation and collection of figures of all the items of income and expenditure of the company for the year ending March 31 1962 was bound to take some time cannot make any difference to the nature or quality of the appropriation of the profits to reserves as determined by the directors after the first of April 1963
Their determination to appropriate the sums mentioned to the three separate classes of reserves on the 8th August 1963 must be related to the 1st of April 1963 ie the beginning of the accounts for the new year and must be treated as effective from that day
830 Relying on the aforesaid decisions and also many other decisions of the various High Courts which have been considered by my learned brother Tulzapurkar J in his judgment the learned counsel for the assessee has argued that the word reserve  which has not been defined in the Act has to be understood in its ordinary meaning as laid down by the Supreme Court in the case of Century Spinning Mills Ltd The further argument is that the recommendation for dividend by the directors of the Company does not create any kind of liability immediate or future
It is argued that the obligation to pay the dividend only arises when the shareholders at the Annual General Meeting of the Company decided to accept the recommendation of the Directors and pass a resolution for declaration of dividend
It is submitted that it is open to the Directors to withdraw or modify the recommendations made by them any time before the shareholders accept the recommendations and in support of this contention reference is made to the decision of this Court in the case of Keshoram Industries and Cotton Mills Ltd vs Commissioner of Wealth Tax Central Calcutta I and n reliance is placed on the following observations at p 772  The directors cannot distribute dividends but they can only recommend to the general body of the company the quantum of dividend to be distributed
Under section 217 of the Indian Companies Act there shall be attached to every balance sheet laid before a company in general meeting a report by its board of directors with respect to inter alia the amount
if any which it recommends to be paid by way of dividend
Till the company in its general body meeting accepts the recommendations and declares the dividend the report of the directors in that regard is only a recommendation which may be withdrawn or modified as the case may be
As on the valuation date nothing further happened than a mere recommendation by the directors as to the amount that might be distributed as dividend it is not possible to hold that there was any debt owed by the assessee to the share holders on the valuation date
 It is further argued that it is open to the share holders to accept the i recommendations in its entirety or to modify the same by 831 deciding to declare dividend at a rate lower than the one recommended by the directors
It is therefore contended that the recommendation of the directors for payment of dividend does not have the effect of creating any kind of liability and there is no debt owed by the company by virtue of the said recommendations
It has been submitted that the decision of this Court in the case of Mysore Electrical Industries Ltd supra is of no assistance and the said decision does not lay down that in the event of the share holders  acceptance of recommendation made by the directors for the distribution of dividend to the share holders of the company the liability for payment of the dividend will also relate back and the doctrine of relation back applies only in respect of items which the directors are competent to decide for themselves in view of the process involved in the preparation of accounts of the company
The main argument advanced on behalf of the Revenue is that any amount which may be set apart for payment of dividend r recommended to be paid by the Directors cannot constitute reserve  within the meaning of the Act
The argument advanced on behalf of the assessee appears to be sound but to my mind the said arguments are not sufficiently convincing to lead the Court to the conclusion that the amount set apart for payment of dividend recommended by the Board of Directors can constitute reserve  within the meaning of the Act for the purpose of computation of the capital of the Company
The word reserve  has not been defined in the ACT
In the absence of any such definition the word has to be understood in its ordinary sense
It is however to be remembered that the word reserve  in the instant case occurs in a taxing statute specially applicable to Companies only
The word reserve  should be so construed as to give the said word the meaning in which it is ordinarily understood by persons interested in Companies or in dealing with Companies
In other words the word reserve  for the purpose of this Act should be understood in the sense in which it is understood in company circles and by persons interested in Companies and in dealing with Companies
It may be noticed that while considering the true meaning and true nature of reserve  the Supreme Court in the case of Commissioner of Income Tax vs Century Spinning and Manufacturing Co Ltd supra has referred 832 to section 131 a and 132 of the Indian Companies Act to the Form marked in Schedule III in which balance sheet of the Company has to be prepared and also to Regulation 99 of the First Schedule Table A I have earlier quoted the relevant observations of the Supreme Court
It is no doubt true that the re commendations of the Directors for payment of any dividend does not create any kind of liability for the payment of the said amount
The liability for payment of any amount by way of dividend only arises when the share holders accept the recommendations and a dividend is declared at the annual general meeting of the Company
It is open to the Directors to modify or withdraw the recommendation with regard to the payment of dividend before the said recommendation is accepted by the share holders
It is also open to the share holders not to accept the recommendation of the Directors in its entirety and to modify the same
The legal liability for the payment of any dividend only arises after the share holders at the annual general meeting have decided to declare a dividend on the basis of the recommendations of the Directors or on the basis of any modification thereof
The liability for the payment of dividend only arises after the dividend has been declared by the share holders at the annual general meeting and this liability does not relate back to 3 any earlier date on the basis of the recommendations of the directors
as the directors do not enjoy any power of declaring the b dividend
The amount that may be set apart for payment of any dividend on the basis of the recommendations made by the Directors cannot be considered to be an amount set apart for meeting a known or existing liability
Though the amount which is set apart for payment of any dividend recommended by the Board of Directors is not an amount set apart for meeting any known or existing liability yet the said amount so set apart cannot be considered to be a reserve  within the meaning of the Act for the purpose of computation of the capital of the Company
section 210 of the specifically provides that at every annual general meeting of a Company the Board of Directors of a Company shall lay before the Company the balance sheet of the Company and also the Profits and Loss account
section 211 833 further provides that every balance sheet of a Company shall give a A true and fair view of the state of affairs of the Company as at the end of the Financial Year and shall subject to the provisions of the section be in the form set out in of Schedule VI or as near thereto as circumstances admit or in such other form as may be approved by the Central Government either generally or in a parti cular case
The preparation of a balance sheet in the prescribed form and laying the same before the share holders at the annual meeting are statutory requirements which the Company has to observe
Regulation 87 of Table A in Schedule I provides 1 The Board may before recommending any dividend set aside out of the profits of the Company such sums as it thinks proper as a reserve or reserves which shall at the discretion of the Board be applicable for any purpose to which the profits of the Company may be properly applied including provisions for meeting contingencies or for equalising dividends and pending such application may at the like discretion either be employed in the business of the company or be invested in such investments other than shares of the Company as the Board may from time to time think fit
2 The Board may also carry forward any profits which it may think prudent not to divide
without setting them aside as a reserve
This Regulation contemplates that the Board may set aside out of the profits of the Company such sums as it thinks proper as a reserve or reserves which shall at the discretion of the Board be applicable for any purpose to which the profits of the Company may be properly applied including the provisions for meeting contingencies or for equalising the dividends before recommending any dividend
In other words the sums out of the profits of the Company have to be set apart as reserve before any dividend is recommended by the Board and the recommendation of the Board for payment of dividend comes only after the creation of reserve
The amount that may therefore be set apart for payment of dividend recommended by the Board is an amount which is set apart 834 after the Board had created the reserve
The form of balance sheet referred to in section 211 of the is appended in of Schedule VI of the Statute
In the statutory form there are various heads including heads of various kinds of reserves and also of provisions
In the balance sheet of the Company which has necessarily been prepared in accordance with the provisions of the statute and in the form prescribed the amount recommended by the Board for payment of dividend has been shown under the head provisions and not under any head of reserves
It is no doubt true that the true nature and character of the sum so set apart must be determined with regard lo the substance of the matter
The substance of the matter clearly appears to be that the amount is set apart for payment of dividend recommended by the Board to be paid to the share holders and the said amount is never intended to constitute a reserve of the Company
Indeed a provision is made for payment of the said amount to the share holders by way of dividend on the basis of the recommendation made by the Directors
Though in law the recommendation made by the Directors for payment of dividend to share holders does not create any liability for the payment of dividend and liability only arises when the shareholders accept the said recommendation and though in law it may be open to the Board to modify or withdraw the recommendation with regard to the payment of dividend before the acceptance by the share holders and it may also be open to the share holders not to accept the said recommendation in its entirety and to modify the same yet for business purposes when the directors make any recommendation for payment of dividend and set apart any amount for the payment of dividend so recommended the directors intended to make a provision for the payment of dividend recommended by them and not to create any reserve as the Directors very well know that the recommendation made by them with regard to the payment of dividend is not normally up set by the share holders and it is generally accepted by the share holders as a matter of course
Any amount set apart by the Directors for payment of dividend to the share holders recommended by them is understood by persons interested in company and in dealing with companies to mean a provision for the payment of dividend to the share holders and is not understood to constitute a reserve
In my opinion this true nature and character of the sum so set apart are reflected in the provisions of the and more particularly in the manner of preparation of the balance sheet of the Company
I am therefore of the opinion that the amount set apart for the payment 835 of any proposed dividend on the basis of the recommendation of A the Directors cannot constitute reserve for the purpose of computation of the capital of the Company
The view that I have taken to my mind appears to be in accord with the view earlier expressed by this Court in the decisions to which I have already referred
On the other questions I entirely agree with the view expressed by my learned brother Tulzapurkar J and I agree with the order proposed by him
CA No 1614NT78 Review Petition No 57180 and Tax Reference Cases Nos 2377 and 51978 dismissed
PBR CA No 86073 partly allowed


Summary:
The Super Profits Tax Act 1963 and the Company s Profits Sur tax Act 1964 the scheme and main provisions of both of which are almost identical impose a special tax on excess profits earned by companies
The special tax is imposed in respect of so much of a company s chargeable profits of the previous year as exceeded the standard deduction The term chargeable profit is defined to mean the total income of an assessee computed under the Income Tax Act 1961 for any previous year and adjusted in accordance with the provisions of that Act
Standard deduction is determined by computing the capital of a company in accordance with the rules laid down in the schedule
The material part of rule I provides that before any amount or sum qualifies for inclusion in capital computation of a company two conditions are required to be fulfilled namely i that the amount or sum must be a reserve and b that it must not have been allowed in computing the company s profit for the purposes of Income Tax Acts 1922 or 1961
ln their respective balance sheets the assessees had shown under the heading current liabilities and provisions appropriations of large sums of money for taxation retirement gratuity and dividends and claimed that for the purposes of super profits tax these sums should be regarded as other reserves within the meaning of Rule 1 of Second Schedule to the Act and that for the computation of capital they should be taken into account
Treating these sums as provisions and not as reserves the Super Profits Tax officer determined the capital and the standard deduction by excluding them from the computation of the capital
He then levied super profits tax on that portion of the chargeable profits of the previous year as exceeded the standard deduction
While the Appellate Assistant Commissioner upheld the assessee s contention that these sums were reserves which should be taken into account for computing their capital the Appellate Tribunal held that these were not reserves within 790 the meaning of Rule l of the Second Schedule to the Act and as such could not enter into capital computation
On reference the High Court held that the sums set apart were not reserves and so should be excluded in the computation of the capital for the purposes of levying the super profits tax
In Tax Reference No 5 a case under the  the assessee transferred from out of its current profits a large sum of money to the general reserves and paid dividend to its shareholders from out of the augmented general reserves
On the question whether for computing the capital for the purpose of sur tax the general reserves should or should not be reduced by the sum of dividend paid the taxing authorities and the appellate tribunal ignored this amount holding that it was not a reserve
None of the items of appropriation either for taxation or for retirement gratuity or for proposed dividend in the assessees  cases had been allowed in computing their profits under the Income Tax Act 1961
 HELD per Tulzapurkar  Venkataramiah JJ The expressions reserve and provision have not been defined in the Act
Standard dictionaries without making any distinction between the two concepts use them more or less synonymously connoting the same idea
But since in the context of the legislation a clear distinction between the two is implied it is essential to know the exact connotation of the two concepts and the distinction as known in commercial accountancy
The rules for computation of capital contained in the Second Schedule to the Act proceed on the basis of the formula of capital plus reserve a formula well known in commercial accountancy
But since they occur in a taxing statute applicable to companies only these expressions will have to be understood in the sense or meaning attributed to them by men of business trade and commerce and by persons interested in or dealing with companies
Therefore the meaning attached to these words in the would govern their construction for the purpose of these two enactments 800 C H The broad distinction between the two expressions as judicially evolved by this Court is that while a provision is a charge against the profits to be taken into account against gross receipts in the profit and loss account a reserve is an appropriation of profits the asset or assets by which it is represented being retained to form part of the capital employed in the business
801 F Cl
T vs Ccntury Spinning  Manufacturiag Co and Metal Box Company of India Ltd vs Their Workmen 73 lTR 67 followed
The  which enjoins upon the Board of Directors of every company to lay before the annual general meeting of its shareholders an annual balance sheet and a profit and loss account enumerates the separate heads that should be shown in the balance sheet two of these items being reserve  and provision
The definitions of these two expressions given in the Act show 791 that if any retention or appropriation of a sum falls within the definition of A provision it can never be a reserve
But the converse is not true
If the retention or appropriation is not a provision that is if it is not designated to meet depreciation renewals or diminution in value of assets or any known liability it is not automatically a reserve and the question will have to be decided having regard to the true nature and character of the sum so retained or appropriated depending on several factors including the intention with which and the purposes for which such retention or appropriation had been made
803 E Fl Having regard to the type of definitions of the two concepts if a particular retention or appropriation of a sum falls within the expression provision then that sum will have to be excluded from the computation of capital
If the sum is in fact a reserve then it would be taken into account for the computation of capital
804 B C Where the assessee had set apart a sum of money to meet tax liability in respect of profits earned during an accounting year which liability was not quantified such setting apart for a known and existing liability would be a provision and could not be regarded as a reserve
806 A C Kesoram Industries and Cotton Mills Ltdv
Commissioner of Wealth Tax central Calcutta  followed
But if provision for a known or existing liability is made in excess of the amount reasonably necessary for the purpose such excess should be treated as reserve and therefore would be includible in capital computation
806 E Since the assessee in CA No 86073 had at no stage of the proceedings before the Taxing Authorities or Appellate Tribunal or the High Court raised a plea that the provision made by it for taxation was in excess of the amount reasonably necesssary for the purpose and that such excess should be treated as a reserve the plea which needs investigation into facts could not be allowed to be raised for the first time in appeal before this Court
807 F Ordinarily an appropriation to gratuity reserve will have to be regarded as a provision made for a contingent liability for under a scheme framed by a company the liability to pay gratuity to its employee on determination of employment arises only when the employment of the employee is determined by death incapacity retirement or resignation an event cessation of employment certain to happen in the service career of every employee
Moreover the amount of gratuity payable is usually dependent on the employee s wages at the time of G determination of his employment and the number of years of service put in by him and the liability accrues and enhances with completion of every year of service but the company can work out on an acturial valuation its estimated liability ie discounted present value of the liability under the scheme on a scientific basis and make a provision for such liability not all at once but spread over a number of years
If by adopting such scientific method any appropriation is made such appropriation will constitute a provision representing fairly accurately a known and existing liability for the year in question if however an ad hoc sum 792 is appropriated without resorting to any scientific basis such appropriation would also be a provision intended to meet a known liability though a contingent one for the expression liability  occurring in cl
71a of Part III of Sixth Schedule to the includes any expenditure contracted for and arising under a contingent liability but if the sum so appropriated is shown to be in excess of the sum required to meet the estimated liability discounted present value on a scientific basis it is only the excess that will have to be regarded as a reserve under clause 7 2 of to the Sixth Schedule
807 GH 808 A D In the instant case although the assessee had urged before the authorities below that different treatment for the same item could not be given for purposes of income tax assessment and super profits tax assessment the assessee did not clarify by placing material on record as to whether appropriation was based on any acturial valuation or whether it was an appropriation of an ad hoc amount a which has a vital bearing on the question whether the appropriation could be treated as a provision or reserve
In the absence of proper material the question should be decided by the taxing authorities whether the amount set apart and transferred to gratuity reserve by the assessee company was either a provision or a reserve and if the latter to what extent
812 C E Standard Mills Co Ltd vs Commissioner of Wealth Tax Bombay 63 ITR470  Workmen of William Jacks  Co Ltd vs Management of Jacks  CoLtd Madras
1971 Supp
SCR 450 followed
Southern Railway of Peru Ltd vs Owen  referred to
The appropriations of an amount by the Board of Directors by way of providing for proposed dividend would not constitute provision  for the appropriations cannot be said to be by way of providing for any known or existing liability none having arisen on the date when the Directors made recommendation much less on the relevant date after the first day of the previous year relevant to the assessment year in question
This by itself would not convert the appropriations into reserves
813 E F The tests and guidelines laid down by this Court in this respect are 1 the true nature and character of the appropriation must be determined with reference to the substance in the matter which means that one must have regard to the intention with which and the purpose for which appropriation has been made such intention and purpose being gathered from the surrounding circumstances
A mass of undistributed profits cannot automatically become a reserve
Some body possessing the requisite authority must clearly indicate that a portion thereof has been earmarked or separated from the general mass of profits with a view to constituting it either a general reserve or a specific reserve 2 the surrounding circumstances should make it apparent that the amount so earmark ed or set apart is in fact a reserve to be utilised in future for a specific purpose on a specific occasion 3 a clear conduct on the part of the Directors in setting apart a sum from out of the mass of undistributed profits avowedly for the purpose of distribution of dividend in the same year would run counter to any intention of making that amount a reserve 4 the nomenclature accorded to any particular fund which is set apart from out of the profits would not be material 793 Or decisive of the matter and 5 if any amount set apart from out of the profits A is going to make up capital fund of the assessee and would be available to the assessee for its business purposes it would become a reserve liable to be included in the capital computation of the assessee under that Act
815 F H 817 G The relevant provisions of the clearly show that creating reserves out of the profits is a stage distinct in point of fact and anterior in point of time to the stage of making recommendation for payment of dividend and the scheme of the provisions suggests that appropriation made by the Board of Directors by way of recommending a payment of dividend cannot in the nature of things be a reserve
818 F G Judged in the light of the above guidelines the appropriations made by the Directors for proposed dividend in the case of the concerned assessee companies did not constitute reserves  and the concerned amounts so set apart would have to be ignored or excluded from capital computation
818 H Standard Mills Co Ltd vs Commissioner of Wealth tax Bombay 63 ITR470 Metal Box Co
Of India Ltd vs Their Workmen  First National City Bank vs Commissioner of Income Tax  Commissioner of Income tax Central Calcutta vs Standard Vacuum oil Co followed
Although under the it is open to the Directors to recommend and the share holders to approve payment of dividend from the current year s profits or from the past year s profits and on transfer of a portion of the current year s profit to the general reserve the augmented general reserve becomes a congolmerate fund having regard to the natural course of human conduct it is not difficult to predicate that dividends would ordinarily be paid out from the current income rather than from the past savings unless the directors in their report expressly or specifically state that payment of dividends would be made from the past savings
From the commercial point of view if any amount is required for incurring any expenditure or making any disbursement like distribution of dividends in a current year ordinarily the same will come out of the current income of the company if it is available and only if the sum is insufficient then the past savings will be resorted to for the purpose of incurring that expenditure or making that disbursement
Such a course would be in accord with the common sense point of view
822 C F In the absense of express indication to the contrary the normal rule for a commercial concern would be to resort to current income rather than past savings while incurring any expenditure or making any disbursement
822 H Commissioner of Income Tax Bombay City l vs Bharat Bijlee Ltd   Commissioner of Income Tax Bombay City ll vs Marrior India Ltd 120 ITR Sl 2 approved
per AN Sen J The amount set apart for payment of any dividend recommended by the Board of Directors is not an amount set apart for meeting a known or existing 794 liability and cannot be considered to be a reserve within the meaning of the Act for the purposes of computation of the capital of the company
832 F The provides for the preparation of annual balance sheet in the prescribed form and laying it before the shareholders at the annual general meeting
Regulation 87 Table A in Schedule I contemplates that the Board may set aside out of the profits of the company certain sum as reserve before dividend is recommended by it
The amount recommended by the Board for payment of dividend is shown in the balance sheet under the head provision and not under any head of reserve
The true nature and character of the sum so set apart must be determined with regard to the substance of the matter which in this case is that the sum set apart was never intended to constitute a reserve  of the company
In law the liability for payment of dividend arises only when the share holders accept the recommendations made by the Directors
Till then it is open to the Directors to modify or withdraw their recommendation before it is accepted by the shareholders and it is equally open to the share holders not to accept the recommendation in its entirety
Even so for business purposes when the Directors make any recommendation for payment of dividend and set apart any amount for this purpose the Directors intend to make a provision and do not create any reserve as Directors know that their recomendation is generally accepted by the shareholders as a matter of course
Therefore any amount set apart for this purpose is understood by persons interested in company matters and in dealing with companies to mean a provision for the payment of dividend to the shareholders and is not understood to constitute a reserve
832 C F Commissioner of lncome tax Bombay City vs Century Spinning and Manufacturing Co Ltd  Commissioner of Income Tax vs Standard Vaccum oil Co  Metal Box Co Of Ltd vs Their Workmen  Commissioner of Income tax vs Mysore Electrical Industries Ltd 1971 80 l
TR 567 and Kesho Ram Industries and Cotton Mills Ltd vs
Commissioner of Wealth Tax Central Calcutta  referred to