Case: The Commissioner Of Income-Tax, Madras Vs. Sri Meenakshi Mills Ltd. &amp; Ors

2. All the three respondents (hereinafter called theare public limited companies engaged in the manufacture and sale of yarn at Madurai. Each of thehad a branch at Pudukottai engaged in the production and sale of cotton yarn. Theof the branches were periodically deposited is the branch of Madurai Bank Ltd. (hereinafter referred to as the Bank) at Pudukottai, a former native State either in the current accounts or fixed deposits which earned interest for the various assessment years as follows:Assessment YearsMeenakshi Mills Rs.Rajendra Mills Rs.Saroja Mills Rs.. . . . .. . . . .Bank aforesaid was incorporated on February 8, 1943 with Thyagaraja Chettiar as founder Director, the Head Office being at Madurai. Out of 15 000 shares of this bank issued 14, 766 were held by Thyagaraja Chettiar, his two sons and the three assessee companies as shown below:Share holding1. Thyagaraja Chettiar1,0082. Manickavasagam2503. Sundaram2504. Meenakshi Mills5,9725. Rajendra Mills3,0096. Saroja Mills4,1773. All the threeborrowed moneys from the Madurai branch of the Bank and on the security of the fixed deposits made by their branches with the Pudukottai branch of the Bank. It is the admitted case that the loans granted to thewere far in excess of the available profits at Pudukottai. In the assessment proceedings of thefor the various years under dispute, theOfficer was of the view that the borrowings in British India on the security of the fixed deposits made at Pudukottai amounted to constructive remittances of the profits by the branches of theto their Head Offices in India within the meaning of S. 4 of the IndianAct, 1922 (hereinafter called the Act). Accordingly he included the entire profits of theincluding the interest receipts from the Pudukottai branches In the assessment of thesince the overdrafts availed of by thein British India far exceeded the available profits.Theappealed to the appellate Assistant Commissioner ofAfter examining the constitution of theand the Bank and the figures of deposits and overdrafts, the appellate Assistant Commissioner found that the deposits made by theand other companies closely allied to them formed a substantial part of the total deposits received by the Bank.He was also of the view that the Pudukottai branch of the Bank had transmitted the funds so deposited for enabling the Madurai branch to advance loans at interest to theand that the transmissions of the funds were made with the knowledge of thewho were majorshareholders of the Bank.The appellant Assistant Commissioner also considered that the Pudukottai branch of the Bank had no other appreciable transactions except the collection of funds and on the facts found S. 42(1) of the Act applied to the case. Thetook the matter in appeal to the appellate Tribunal which took note of the position that the head office and the branchwhether of theor of the Bankconstituted only one unit and that Thyagaraja Chettiar occupied a special position in both the concerns and the establishment of the branch of the Bank at Pudukottai was intended to help the financial operations of Thyagaraja Chettiar in the concerns in which he was interested. After detailed consideration of the deposits and overdrafts and thetransactions of the Bank the appellate Tribunal held that S. 42 (1) of the Act was applicable to the facts of the case and that themust be attributed with knowledge of the activity of their branches at Pudukottai and of the remittances made by the Pudukottai branch of the Bank to Madurai head office, and that the entire transaction formed part of an arrangement or scheme.4. In the course of its judgment the appellate Tribunal observed as follows :"Even so, it seems to us we cannot escape that fact that Thyagaraja Chettiar, his two sons and the three Mills had a preponderant, if not the whole, voice in the creation, running and management of the Bank. We cannot also forget that Pudukottai is neither a cotton producing area nor has a market for cotton; except that it was aterritory, there was nothing else to recommend the carrying on of the business in cotton spinning or weaving there. There is yet another aspect to which our attention was drawn by the learned counsel for the assessee. That being aarea, there were many very rich men there with an influx of funds to invest in banks and industries. By the same token, it appears to us it was not necessary for the Madurai Bank which was after all a creation of certain people which started with a small capital of Rs. 32,800 to have gone to Pudukottai for opening a branch. If there was an influx of money in Pudukottai because of the finances, nobody would have agreed to borrow money from it. At any rate, it is clear it would have had no field for investment in Pudukottai because of the only source of investment being outside Pudukottai."The appellate Tribunal further stated:"But having regard to the special position of Thyagaraja Chettiar and the balance sheets of the bank referred to above and the lack of investments in Pudukottai itself of the moneys borrowed there, it seems more reasonable to conclude that the bank itself was started at Madurai and a branch of it was opened at Pudukottai only with a view to help the financial operations of Thyagaraja Chettiar and the mills in which he was vitally interested."At the instance of thethe appellate Tribunal referred the following question of law for the determination of the High Court:"Whether on the facts and in the circumstances of the case, the taxing of the entire interest earned on the fixed deposits made out of the profits earned in Pudukottai by the assessees branches in the Pudukottai branch of the Bank of Madurai is correct?"The High Court answered the question in favour of theholding that it was not established that there was any arrangement between theand the Bank whether at Pudukottai or at Madurai for transference of moneys from Pudukottai branch to Madurai and the facts on record did not establish that there was any transfer of funds between Pudukottai and Madurai for the purpose of advancing moneys to theThe High Court further took the view that the transactions represented ordinary banking transactions and there was nothing to show that the amounts placed in fixed deposits in the branch were intended to, and were in fact transferred to head office for the purpose of lending them out to the depositor himself.

Reasoning: 5. On behalf of the appellant Mr. Sen submitted at the outset that the High Court was not legally justified in interfering with the findings of fact reached by the appellate Tribunal and in concluding that there was no arrangement or scheme between the lender and the borrower for the transference of funds from Pudukottai to Madurai.In our opinion, there is justification for the argument put forward on behalf of the appellant and the High Court erred in law in interfering with the finding of the appellate Tribunal in this case.Having examined the findings of the appellate Tribunal in the present case we are satisfied that the test prescribed by the Federa1 Court in Wadias case, is fulfilled and the appellate Tribunal was right in its conclusion that there was a basic arrangement or scheme between theand the Bank that the money should be brought to British India after it was taken by the borrower outside the taxable territory. The appellate Tribunal has pointed out that thehad a preponderant, if not the whole, voice in the creation, running and management of the Bank and that Pudukottai was neither a cotton producing area nor had it a market for cotton and except that it was aterritory there was nothing else to recommend the carrying on of the cotton spinning or weaving business there. The Tribunal further remarked that having regard to the special position of Thyagaraja Chettiar and the balance sheets of the Bank and lack of investments in Pudukottai, it was reasonable to conclude that the Bank itself was started at Madurai and a branch was opened at Pudukottai only with a view to helping the financial operations of Thyagaraja Chettiar and the mills in which he was vitally interested. The Tribunal found that Pudukottai branch of the Bank had transmitted funds deposited by thefor enabling the Madurai branch to advance loans at interest to theand the transmission of the funds was made with the knowledge of thewho were the majorshareholders of thethe context of these facts it must be held that the entire transactions formed part of a basic arrangement or scheme between the creditor and the debtor that the money should be brought into British India after it was taken by the borrower outside the taxable territory. We are accordingly of the opinion that the principle laid down in Wadias case, 17 ITR 63: (AIR 1949 FC 18) is satisfied in this case and that theauthorities were right in holding that the entire interest earned on fixed deposits wasthe present case the question at issue is entirely different. The appellate Tribunal has upon examination of the evidence, found that the transference of funds from Pudukottai to Madurai was made as part of the basic arrangement between the Bank and theand that Thyagaraja Chettiar who was the moving figure both in the Bank and in each of thehad knowledge of this arrangement. It is well established that in a matter of this description theauthorities are entitled to pierce the veil of corporate entity and to look at the reality of the transaction. It is true that from the Juristic point of view the company is a legal personality entirely distinct from its members and the company is capable of enjoying rights and being subjected to duties which are not the same as those enjoyed or borne by its members. But in certain exceptional cases the Court is entitled to lift the veil of corporate entity and to pay regard to the economic realities behind the legal facade. For example, the Court has power to disregard the corporate entity if it is used for tax evasion or to circumvent tax obligation. For instance, in Apthorpe v. Peter Schoenhofen Brewing Co., Ltd., (1899) 4 Tax Cas 41 theCommissioners had found as a fact that all the property of the New York company, except its land, had been transferred to an English company, and that the New York company had only been kept in being to hold the land, since aliens were not allowed to do so under New York law. All but three of the New York companys shares were held by the English company, and, as the Commissioners also found, if the business was technically that of the New York company, the latter was merely the agent of the English company. In the light of these findings the Court of Appeal, despite the argument based on Salomons case, 1897 AC 22   held that the New York business was that of the English company which was liable for Englishaccordingly. In another caseFirestone Tyre and Rubber Co. v. Llewellin.an American company had an arrangement with its distributors on the Continent of Europe whereby they obtained supplies from the English manufacturers, its wholly owned subsidiary. The English company credited the American with the price received after deducting the costs plus 5 per cent. It was conceded that the subsidiary was a separate legal entity and not a mere emanation of the American parent, and that it was selling its own goods as principal and not its parents goods as agent. Nevertheless, these sales were a means whereby the American company carried on its European business, and it was held that the substance of the arrangement was that the American company traded in England through the agency of its subsidiary. We, therefore reject the argument of Mr. Venkataraman on this aspect of the case.