Case: Indore Malwa United Mills Ltd., Indore Vs. State Of Madhya Bharat And Others

Tax Rules and the corresponding provisions of the Indian Income-tax Act. It is said that the Indore Industrial Tax Rules are only concerned with the cotton mill industry and the tax payable thereunder is in respect of the said industry, while under the Income-tax the tax is payable in respect of the income of the business of the assessee. But a perusal of the proceedings during all the stages does not disclose that any such argument was advanced at any time. Assuming that the contention was correct, if it had been raised before, the assessee might have been in a position to establish by relevant evidence that the particular amount borrowed by the Managing Agents was from and out of the mounts borrowed for the purpose of the said industry. We cannot allow a question which at its best is a mixed question of fact and law to be raised for the first time before us. We do not propose to express our opinion on the same one way or other. We shall proceed with the appeal on the basis that for the purpose of the deducting trading losses in computing trading profits there is no difference between the Incometax Act and the relevant Indore Industrial Tax Rules.6. The only question, therefore, is whether the loss claimed in the present case was a trading loss which is deductible in computing the profits of the company. The relevant principle of law has been laid down by this Court in Badridas Daga v. Commissioner of Income-tax, 1959 SCR 690 at p. 695: (AIR 1958 SC 783 at p. 786). There, after considering the relevant decisions on the subject, this Court laid down the following test:"The result is that when a claim is made for a deduction for which there is no specific provision in S. 10 (2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established, then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act."Where in agent employed by the appellant for the purpose of carrying on his business in exercise of the powers conferred on him operated on the bank accounts, withdrew moneys from it and use them for discharging his personal debts, this Court in the said decision found no difficulty in holding that the amount misappropriated and found irrecoverable was an allowable deduction under the Income-tax Act. The only difference between that case and the present one is that the Agent misappropriated the amount in that case, whereas in the present case the Managing Agents in exercise of the power conferred by the appellant borrowed the moneys but failed to return the same. If embezzlement of moneys entrusted to an agent is incidental to a business, by the same taken moneys legally utilized by the agent must more appropriately be incidental to the business. In a recent decision in Commissioner of Income-tax, U. P. v. Nainital Bank Ltd. Civil Appeal No. 938 of 1963, dated 25-9-1964: (AIR 1985 SC 1227), this Court held that an amount lost to the bank by dacoity was a loss incidental to the business of banking. There, in the course of the business large amounts were kept in the bank premises, and this Court held that the risk of loss by dacoity was incidental to a banking business. If that be so, the fact that the Managing Agents brought into the companys till larger amounts than the company business demanded at a particular point of time would not make the borrowings or the lending of money to themselves any the less incidental to the sanctioned business operations.7. The question is not whether the Managing Agents committed a fraud on the company, but whether the amounts borrowed were the funds of the company. If the creditors had filed a suit against the company, could it have resisted the suit on the ground that the Managing Agents had no power to borrow the amounts for the reason that at the time they borrowed, the amounts were in excess of the requirements of the business ? Decidedly not. There would not have been any defence to such a suit. After the borrowing the money became the companys money. That apart there was no question of fraud in this case, for the profit and loss account and the balance-sheet placed before the General Body Meeting of the Company every year brought to its notice the total amount the company borrowed through the Managing Agents and the General Body approved of it. The only fraud, if any, consisted in the practice followed by the Managing Agents in bringing into the accounts of the company entire amount lent to them in order to satisfy the share-holders that nothing was going wrong.8. The next step is the borrowing of money by the Managing Agents from the company. Under the memorandum of association as well as under the express power conferred by the said resolution, the company, through the Managing Agents, could invest its funds by way of loans. If there was no mishap the Managing Agent, would have paid the entire amount and if they did not the company could have recovered the entire amount from them. The result, therefore, was that both the borrowing by the Managing Agents on behalf of the company from third parties and the lending to themselves created legal obligations. They were obligations created in the course of the business. The money lent would be a debit item in the accounts of the company in accordance with the accepted commercial practice and if the amount was realized it would be a credit item. Both would be proper items of accounts for ascertaining the profit and loss of the company. If the debt became irrecoverable, it would be a bad debt.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There would not have been any defence to such a suit. After the borrowing the money became the companys money. That apart there was no question of fraud in this case, for the profit and loss account and the balance-sheet placed before the General Body Meeting of the Company every year brought to its notice the total amount the company borrowed through the Managing Agents and the General Body approved of it. The only fraud, if any, consisted in the practice followed by the Managing Agents in bringing into the accounts of the company entire amount lent to them in order to satisfy the share-holders that nothing was going wrong.8. The next step is the borrowing of money by the Managing Agents from the company. Under the memorandum of association as well as under the express power conferred by the said resolution, the company, through the Managing Agents, could invest its funds by way of loans. If there was no mishap the Managing Agent, would have paid the entire amount and if they did not the company could have recovered the entire amount from them. The result, therefore, was that both the borrowing by the Managing Agents on behalf of the company from third parties and the lending to themselves created legal obligations. They were obligations created in the course of the business. The money lent would be a debit item in the accounts of the company in accordance with the accepted commercial practice and if the amount was realized it would be a credit item. Both would be proper items of accounts for ascertaining the profit and loss of the company. If the debt became irrecoverable, it would be a bada perusal of the proceedings during all the stages does not disclose that any such argument was advanced at any time. Assuming that the contention was correct, if it had been raised before, the assessee might have been in a position to establish by relevant evidence that the particular amount borrowed by the Managing Agents was from and out of the mounts borrowed for the purpose of the said industry. We cannot allow a question which at its best is a mixed question of fact and law to be raised for the first time before us. We do not propose to express our opinion on the same one way or other. We shall proceed with the appeal on the basis that for the purpose of the deducting trading losses in computing trading profits there is no difference between the Incometax Act and the relevant Indore Industrial Taxin agent employed by the appellant for the purpose of carrying on his business in exercise of the powers conferred on him operated on the bank accounts, withdrew moneys from it and use them for discharging his personal debts, this Court in the said decision found no difficulty in holding that the amount misappropriated and found irrecoverable was an allowable deduction under theAct. The only difference between that case and the present one is that the Agent misappropriated the amount in that case, whereas in the present case the Managing Agents in exercise of the power conferred by the appellant borrowed the moneys but failed to return the same. If embezzlement of moneys entrusted to an agent is incidental to a business, by the same taken moneys legally utilized by the agent must more appropriately be incidental to the business. In a recent decision in Commissioner ofU. P. v. Nainital Bank Ltd. Civil Appeal No. 938 of 1963, dated(AIR 1985 SC 1227), this Court held that an amount lost to the bank by dacoity was a loss incidental to the business of banking. There, in the course of the business large amounts were kept in the bank premises, and this Court held that the risk of loss by dacoity was incidental to a banking business. If that be so, the fact that the Managing Agents brought into the companys till larger amounts than the company business demanded at a particular point of time would not make the borrowings or the lending of money to themselves any the less incidental to the sanctioned business operations.