Case: National Rayon Corporation Ltd Vs. The Commissioner Of Income Tax

The facts stated by the High Court in this regard are asFrom the balance-sheets for the said periods, we find that in the calendar year 1965, the debenture redemption reserve was Rs. 79, 00, 000. However, in the next calendar year 1966, which is relevant to the assessment year 1967-68, the figure of debenture redemption reserve has gone up to Rs. 1, 12, 00, 000. A perusal of the balance-sheet further shows that the assessee-company had floated and actually issued 6 1/2 per cent. secured redeemable mortgage debentures, as pointed out earlier, against the security of land, buildings and machinery of the company and a floating charge on the undertaking. None of these debentures appear to have been redeemed during the relevant previous years. There is no dispute regarding any of these facts. In these circumstances, it clearly appears to us that the debenture redemption reserve must be regarded as a provision made by the assessee-company to enable it to redeem the said debentures when they became due for redemption. Since the aggregate amount of such debentures is much larger than the amount of the debenture redemption reserve, we fail to see how it can be said that there was any excess as such in this appropriation which could be taken as reserve. It is true that all the debentures had not become redeemable during the relevant previous years, but that does not make any difference because an amount set aside to meet a future liability, which was certain to come into existence, as in this case, must be regarded as a provision and not as a reserve. " *

Reasoning:
We are of the view that the High Court has come to the correct conclusion. The basic principle is that an amount set apart to meet a known liability cannot be regarded as " reserve ". " Provision " and " reserve " have been defined in Part III, Schedule VI, to the Companies Actdefinition clearly indicates that if an amount is retained by way of providing for any known liability that amount shall not be treated as a reserve. Clause 7(2)(b) makes it clear that only an amount which is in excess of what is reasonably necessary for meeting a known liability shall be treated as reserve and not as provision. The directors will have to form an opinion as to what is reasonably necessary for meeting the known liability of a company. The opinion of an accountant or an auditor or a lawyer is quite immaterial for thisfinding of fact in this case is that the amount set apart for redemption of debentures is less than the companys liability on this account. Therefore, the answer to the question raised must be that the amount of Rs. 79 lakhs representing debenture redemption reserve cannot be included in the capital of the company for the purpose of surtax assessment. The facts stated in the judgment of the High Court go to show that the amount was not larger than the amount which had to be paid for redemption of the debentures. Therefore, there is no question of any excess provision of thisare of the view that this approach is erroneous and overlooks the definitions of " provision " and " reserve " given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance-sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading " liabilities ". Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries, and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans is an existing liability and has to be shown in the companys balance-sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be " reserve ". The interpretation clause of the balance-sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liabilityThe Delhi High Court in the case of CIT v. Modi Industries Ltd. (No. 2) also took the view that the amount set apart out of the profits to redeem the debentures had to be treated as reserves because, there was no liability in the current year to redeem theare unable to agree with this view for the reasons given earlier in thesinking fund created for redemption of debentures will not be treated as a reserve even though (1) it has to be shown as " reserve " in the balance-sheet and (2) the amount kept in this fund is in the nature of allocation of profits and not a charge against them. It is difficult to see, in the context of this rule in the Second Schedule, why a debenture redemption reserve is to be treated as " reserve " on the ground that the amounts set apart for redemption of debentures are not in the nature of a charge against profits but merely appropriation of profit. In Peico Electronics and Electricals case, (Cal), one of the grounds which weighed with the court was the argument that the sinking fund has to be utilised by making investments and did not form part of the working capital of the company but the amount lying to the credit of the debenture redemption reserve was available to the company to be used as workingfail to comprehend this distinction. What has to be computed under rule 1 of the Second Schedule to the Surtax Act is the capital of the company and not its working capital. The amount shown as sinking fund may be invested in a fruitful way so that the principal and gains from the investments taken together will enable the company to pay off its debts. Investment of monies standing to the credit of the sinking fund is nothing but utilisation of the companys assets for the discharge of its liabilities. There is no rational explanation why a sinking fund for redemption of debentures will not be a reserve but a debenture redemption reserve created with the same purpose will be treated as reserve and included in the computation of capital of the company for surtax purposes. A construction which leads to absurdity should be avoidedThe basic principle is that any amount retained by way of providing for a known liability will not be " reserve ". Explanation to rule 1 of the Second Schedule to the Surtax Act takes this principle to its logical conclusion by providing that even a sinking fund, which has to be shown as a reserve in the prescribed form of balance-sheet, will not be treated as " reserve " for the purpose of computation ofis further to be noted that the surplus and unallocated balance in the profit and loss account has been specifically excluded from " reserves " for computation of capital under the Surtax Act. Therefore, availability of the amount for utilisation as working capital of the company or for distribution of dividend cannot be a criterion for deciding whether a particular amount retained from the profits of the company will be treated as its reserve orthe premises, we are of the view that the judgment under appeal was rightly decided. We are unable to uphold the contrary decisions in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2)we are concerned in this appeal only with the amount of Rs. 6, 66, 159, which was appropriated to gratuity reserve. The question is whether this should be treated as reserve or provision. The point is well settled by the decision of this court in the case of Vazir Sultan. The answer to the question will be that the amount of Rs. 6, 66, 159 will have to be treated as provision and not reserve. We answer the question accordingly. The order of the High Court to the above extent is set asideA point has been taken on behalf of the respondents that the amount was more than what was actually required to be set apart as liability for gratuity. We are not expressing any opinion as to that because that is a question of fact. It does not appear from the High Courts order or the question raised that this point was at all in issue before the court or the Tribunal