Case: Bharat Fire And General Insurance Co. Ltd. New Delhi Vs. The Commissioner Of Income Tax, New Delhi

of declaring dividend.6. In Drowns case, 1937 Ch. 402 a company proposed to pay a dividend on its preference shares and utilise in part premiums received by the company on the issue of shares, which had in fact been invested in the assets of the company. The plaintiff asked for an injunction to restrain the company from paying the dividend. Clauson, J., held that part of a reserve fund consisting of moneys paid by way of premiums on shares, unless set aside in some particular fund which has been wholly spent, is available for dividend purposes. We are not concerned with other points that arose in the case and we have only set out the facts and findings relevant to the question before us. We may here set out Article 129 of the Gaumont-British Picture Corporation Ltd. Article 129 reads thus:"The Directors may, with the sanction of a general meeting, from time to time declare dividends or bonuses, but no such dividend shall (except as by the statutes expressly authorised) be payable otherwise than out of the profits of the company........."Mr. Kapur, learned counsel for the appellant had contended that the English Law was different inasmuch as what was prohibited in English Law was payment of dividends out of capital and that it did not enjoin directors to pay dividends out of profits. This case refutes Mr. Kapurs contention. In re: Duffs Settlements, National Provincial Bank Ltd. v. Gregson, 1951 Ch. 923 which is strongly relied on behalf of the appellant, and which we will advert to in detail later, Jenkins, L. J., says at p. 926:"The share premiums would have been profits available for distribution (see 1937 Ch. 402).It was thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the words profits in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words accumulated profits within S. 2(6A) (a).7. This takes us to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to S. 2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed.8. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of S. 78 of the Companies Act, 1956. Sub-section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called the Share Premium Account and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid-up capital of the company. Sub-section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub-section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of S. 78. The effect of this would be that a company which had issued shares at a premium before the commencement of this Act would by virtue of S. 78 have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premium in such a way that they had ceased to remain as an identifiable part of the companys reserves? The sub-section says that in that event the premium so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of S. 78. It has no application to them. If this is so, it is difficult to appreciate how the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed become invested with the character of capital in the hands of the distributing company. We do not say that for the purpose of income-tax any future application of the share-premium account in one of the ways mentioned in sub-section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that S. 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from S. 78, it remains so taxable.9. The case of Duffs Settlements, 1951 Ch. 923 referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal.10. Before concluding, we may refer to the decision of the House of Lords in Inland Revenue Commrs. V. Reids Trustees, (1949) 1 AII ER 354, relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/- was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/- was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about this case.11

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

Explanation:
0[ds]8. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of S. 78 of the Companies Act, 1956. Sub-section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called the Share Premium Account and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid-up capital of the company. Sub-section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub-section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of S. 78. The effect of this would be that a company which had issued shares at a premium before the commencement of this Act would by virtue of S. 78 have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premium in such a way that they had ceased to remain as an identifiable part of the companys reserves? The sub-section says that in that event the premium so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of S. 78. It has no application to them. If this is so, it is difficult to appreciate how the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed become invested with the character of capital in the hands of the distributing company. We do not say that for the purpose of income-tax any future application of the share-premium account in one of the ways mentioned in sub-section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that S. 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from S. 78, it remains so taxable.9. The case of Duffs Settlements, 1951 Ch. 923 referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal.10. Before concluding, we may refer to the decision of the House of Lords in Inland Revenue Commrs. V. Reids Trustees, (1949) 1 AII ER 354, relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/- was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/- was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about thisare unable to accede to this contention. Previous to the enactment of S. 78 of the Companies Act of 1956, and the corresponding section in the English Companies Act, it was recognised that a company could distribute premiums received on the issue of shares as dividends (vide Palmers Company Law, Twentieth Edition), At page 637, it isis evident from the preceding observations that it is legally permissible for the company to distribute dividend out of assets which do not represent profits made as the result of its trading or business. The connotation of divisible profits, or profits in the legal sense, is much wider than that of profits in the business sense: the former term includes e.g., reserves accumulated from past profits, from realised capital profits indeed, before the requirement of a share premium account by thelegislation, from premiums obtained on issue of new shares, whereas none of these items isby the businessman or accountant as tradingRomer, L. J., thought that there was nothing objectionable in utilising premiums received on the issue of shares for the purpose of declaringwas thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the words profits in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words accumulated profits within S. 2(6A) (a).This takes us to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to S.2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed.