Case: NATIONAL RAYON CORPORATION LTD. ETC Vs. COMMISSIONER OF INCOME TAX

2. The High Court took the view that the amount set apart to redeem the debentures has to be treated as provision and not as reserve. The facts stated by the High Court in this regard are as follows :From the balance sheets for the said periods, we find that in the calendar year 1965, the development rebate reserve was Rs. 79,00,000. However, in the next calendar year 1966, which is relevant to the asst. yr. 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:
3. We are of the view that the High Court has come to a 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, Sch. VI of the Companies Act itselfThe definition clearly indicates that if an amount is retained by way of providing for any known liability that amount shall not be treated as 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 this purpose.The finding 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 in this case.4. In the case of Vazir Sultan Tobacco Co. Ltd., Hyderabad and Others Vs. Commissioner of Income Tax, Andhra Pradesh, Hyderabad, , it was held that provision and reserve had not been defined under the Companies (Profits) Surtax Act, 1964. Therefore, the two concepts reserve and provision which are fairly well known in commercial accountancy and which are used under the Companies Act dealing with preparation of balance sheets and P&L a/cs, will have to be gathered from the meaning attached to them by the Companies Act itself. Moreover, in Vazir Sultans case (supra), it was pointed out that even if a sum of money which had been set apart for a certain purpose was held not to be a provision, it did not automatically follow that it would be a reserve. It was held :But it is clear beyond doubt that if any retention or appropriation 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 appropriation of a sum out of profits and surplus 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.This argument is without any merit. It goes against the very definition of provision and reserve provided by the Companies Act. In the form of balance sheet in Sch. VI of the Companies Act provisions have to be made, inter alia, for contingencies, provident fund scheme, insurance, pension and staff benefit schemes. Amounts set apart for the aforesaid purposes will mostly be for future use. Question of payment of pension or provident fund can only arise when an employee retires.6. We are unable to uphold this argument. The liability to repay arises the moment the money is borrowed. The amount borrowed may be repayable immediately or in future. The date of repayment of loan may be deferred by agreement but the obligation or the liability to repay will not cease on that account. The obligation is a present obligation; Debitum in praesenti, solvendum in future. This aspect of the matter was explained in the judgment of this Court in Kesoram Industries and Cotton Mills Ltd. Vs. Commissioner of Wealth Tax, (Central) Calcutta,By issuing the debentures, the company had taken a loan against the security of its assets. This loan may not be repayable in the year of account. But the obligation to pay the loan is a present obligation. Any money set apart in the account of the company to redeem the debentures must be treated as moneys set apart to meet a known liability. The debentures will have to be shown in the companys balance sheet of the year as liability.7. In the case of Commissioner of Income Tax Vs. Peico Electronics and Electricals (Formerly Philips India Ltd.), , the Calcutta High Court held that the debenture redemption reserve will have to be treated as a reserve and not provision because, none of the debentures became redeemable during the accounting period. The liability to redeem the debenture was a future liability. The debentures had been separately shown in the balance sheet as a liability. The reserve had been created by appropriation of profits and not by way of a charge on Revenue.8. We are 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 Sch. 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 was 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 Sch. 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 liability.9. The Delhi High Court in the case of Commissioner of Income Tax Vs. Modi Industries Ltd., also took the view that the amount set apart out of profits to redeem the debentures had to be treated as reserves because, there was no liability in the current year to redeem the debentures.We are unable to agree with this view for the reasons given earlier in the judgment.Apart from this, the argument that found favour with the Courts in the cases of Pieco Electronics & Electricals and Modi Industries Ltd. (supra) that if the retention or appropriation of a sum out of 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, was specifically rejected by this Court in Vazir Sultans case (supra).This argument of the assessee was held to be fallacious (Page 571 of the report).A sinking fund created for redemption of debentures will not be treated as 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 profits. In Pieco Electronics & Electricals case (supra), 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 debenture redemption reserve was available to the company to be used as working capital.We fail to comprehend this distinction. What has to be computed under r. 1 of the Second Schedule of 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 computation of capital of the company for surtax purposes. A construction which leads to absurdity should be avoided.The basic principle is that any amount retained by way of providing for a known liability will not be reserve. Expln. to r. 1 of the Second Schedule of 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 of capital.12. It is further to be noted that the surplus and unallocated balance in the P&L a/c 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 or not.13. In the 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 Pieco Electronics & Electricals and Modi Industries Ltd. (supra).However, 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 (supra). 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.