Case: Hoogly Trust (Private) Ltd Vs. Commissioner Of Income-Tax, West Bengal Andandaman And Nic

1. These three appeals are by certificate from a common judgment of the Calcutta High Court answering the following question referred to it by the Income Tax Appellate Tribunal in the negative and against theto the statement of the case the assessee is a private limited company owning shares and securities and also doing business. The relevant assessment years are8, the corresponding accounting years being the calendar years 1954, 1955 and 1956. In the assessment for the years55 losses amounting to Rs. 2,13,898/and Rs. 46,050/respectively were determined for the purposes of Section 24(2) of theAct, 1922, hereafter called the "Act". In the first year a loss of Rs. 2,08,686/arose in cloth business whereas the balance of the loss occurred in the General section and the manure section . In the second year a loss of Rs. 46,050/occurred mainly in cloth business. During the three assessment years in question theOfficer refused to allow the carry forward of these losses and their set off against the business profits of those years on the ground that the losses determined in the preceding years arose out of the cloth business which was different from the other business carried on by the assessee and since the cloth business was not carried on during the relevant year of account the loss therefrom in preceding years could not be carried forward and set off against profits of the other business. The Appellate Assistant Commissioner agreed with the conclusion of theOfficer. He rejected the contention of the assessee that common ownership, common direction and control, common financial arrangement, common staff and common balance sheet necessarily established that the business was single. He took the view that the character of the cloth business carried on by the assessee was entirely different from the other business. He laid particular emphasis on the fact that the assessee acted as a distributing agent on behalf of the Government for cloth and cement and the mode of carrying on of that business was altogether different from that of its ordinary business. He referred to the fact that the cloth business had a separate overdraft account with the Bank with which stocks of cloth had been pledged and there was separate staff for the cloth business even though the assessee claimed that a part of the staff in the General section also looked after the cloth business. The assessee contended before the Tribunal in appeal that till the end of 1945 its business was confined only to shares and the management of zamindari properties and that dealing in cloth began only in 1946 and in 1950 the assessee was dealing in manure and in 1952 in paints as well. After the introduction of control on cloth in 1948 the company was appointed as a nominated buyer approved by the Government doing business at its own risk under conditions prescribed by the Government by whom prices at which the goods were to be sold were fixed. Certain expenses relating to the cloth business like motor car and godown expenses were charged to the General account, whereas certain expenses relating to the General section like rent and telephone charges were charged to the cloth account while audit fees were allocated to a different department. The control over the different activities of the assessee was not exercised by the Director but by common managerial staff and there was sufficient financialbetween the cloth business and the General section . The Tribunal held that the assessees dealings in cloth started as early as 1946 and that the introduction of control by the Government changed the procedure of carrying on the business. It was further found that the assessee had been doing business in several commodities one after the other or along with the other and apart from the fact that a separate profit and trading account was maintained for cloth business there was nothing to suggest that the cloth business assumed the proportion or the stature of a distinct and separate business. It was accordingly held that the transactions in cloth were part and parcel of a single business carried on by the assessee and the loss therefrom could not be segregated as a loss from a distinct business for the purpose of S. 24(2) of the Act.2. The High Court referred to certain other facts as found by the Appellate Assistant Commissioner. It had been found by him that the assessee was mainly doing banking business from 1942 to 1948 although it had, during that period, income from other sources. In the year 1948 it started acting as the distributing agent of cloth on behalf of the Government. That business continued till the year 1952 where control on cloth was lifted. The assessee disposed of in retail stocks left over during the first few months of the year 1953 Thereafter the assessee ceased to have any dealings in cloth. The High Court quoted extensively from the order of the Appellate Assistant Commissioner. It felt that the Tribunal had not dealt with the matter in a satisfactory way. Reference was made to its own decision in another case in which it had been held by the High Court that in order to find out whether the business of an assessee was the same in two different years the primary consideration was the nature of the business and the way it was conducted. Merely because the asessees business was one of a dealer in several kinds of commodities it could not he said that it has only one business for the purpose of Section 24 (2) when a part of its activities had come to an end. Relying on most of the facts determined by the Appellate Assistant Commissioner the High Court found difficulty in agreeing with the view on the Tribunal that there was any dovetailing of the cloth business into the General section . This is what the High Court saidour opinion, (1) that the inference drawn by the appellate tribunal was not warranted by the facts on record and (2) that the cloth business was separate from the assessees business in general section notwithstanding that there was someof expenses or control."

Reasoning:
6. The Tribunal gave the following findings: (1) The appellants dealings in cloth started as early as 1946 and the introduction of control only changed the procedure of carrying on the business in the sense that the appellant became the nominated buyer approved by the Government. (2) The appellant had been doing business in several commodities one after the other or along with the other and its trading in each commodity did not constitute separate business. (3) The cloth business never assumed the proportion or the stature of a distinct and separate business. (4) There was sufficient evidence to show dovetailing of the cloth section into the General section . The conclusion of the Tribunal on these findings was that the transactions in cloth were part and parcel of a single business carried on by the appellant and did not constitute a distinct business for the purpose of Section 24 (2). The Tribunal does not appear to have discussed the entire evidence on which the findings were based but the order of the Appellate Assistant Commissioner and his findings as also the entire record were before it and there is nothing to suggest that all the material facts were not present to its mind except that they are not mentioned in detail. Its findings, therefore, must be accepted as final and the only question which it was open to the High Court to examine was whether the cloth business could be regarded as the same business within the meaning Section 24 (2) of the Act. A great deal of reliance has been placed on a decision of the Bombay High Court in Manilal Dahyabhai v. Commissioner of Income-tax, Bombay City, 37 ITR 398  = (AIR 1960 Bom 130  ).There the claim that the businesses were the same was sought to be substantiated on the ground that only one set of accounts was being maintained; that both the businesses were carried on in the same premises with the help of the same staff; that the capital employed was the same, the receipts in respect of one of them being utilized for the purpose of the other and that the terms of overhead and other expenses were common. It was held that the aforesaid factors did not necessarily lead to the inference that the businesses must be regarded as one and the same. It was observed that though not conclusive but an important test was whether one of the two businesses conducted by the assessee could be stopped without affecting the texture or framework of the other. However in Commissioner of Income-tax Madras v. Prithvi Insurance Co., Ltd., 63 ITR 632   at p. 637=(AIR 1967 SC 853   at p. 855) this court said "we are unable to agree with counsel for the Commissioner that the test, whether one of the businesses can be closed without affecting the conduct of the other business, is a decisive test in determining whether the two constitute the same business within the meaning of Section 24 (2)." In that very case the test laid down by Rowlatt, J., in (1927) 13 Tax Cas 83 was accepted as a fair test and inter-connection, inter-lacing, inter-dependence and unity were found to exist by virtue of the common management, common business organisation, common administration, common fund and common place of business.7. We have no manner of doubt that on applying these principles the conclusion at which the Tribunal arrived was correct and the question referred should have been answered in the affirmative and in favour of the. It is not possible to accept the submission made on behalf of respondent that in spite of the form in which the question had been referred it was open to the High Court to examine the correctness of the conclusions of the Tribunal on facts.There can be no dispute that if the Tribunal does not consider the evidence covering all the matters and bases its findings upon some evidence only ignoring other essential material that would amount to a misdirection in law and the findings would give rise to a question liable to be referred to the High Court. But it equally well settled that if it is sought to raise the question about the validity of the findings on fact for one reason or another, reference of a proper question challenging those findings must first be sought before those findings can be challenged before the High Court: See India Cement Ltd. v. Commissioner of Income-tax, Madras, 60 ITR 52   at p. 64=(AIR 1966 SC 1053   at p. 1061) and Hazrat Pir Mahomed Shah Saheb Roza Committee v. Commissioner of Income-tax, Gujarat, (1967) 63 ITR 490     at p. 496 (SC). No attempt was made before the Tribunal to have any such question referred and in the absence of a proper question it was not open to the High Court to accept the finding of the Appellate Assistant Commissioner in preference to those given by the Tribunal or to come to any independent conclusion itself on facts.