Case: J.K. Woollen Manufacturers Vs. Commissioner Of Income-Tax, U.P

1. The appellant (hereinafter called the assessee) carried on the business of manufacture and sale of blankets and other woollen cloth. For the assessment year 1948-49 the assessee claimed a deduction of Rs. 75,465 as commission paid to the General Manager Shri J. P. Vaish. According to the terms of appointment Shri J. P. Vaish was to draw a fixed salary of Rs, 1,000 p.m., commission of 12 1/2 per cent on the net profits of the firm payable after the accounts had been ascertained fully by the auditors and a car allowance of Rs. 250 p.m. It was one of the terms of the appointment that in case the profits exceed Rs. 1 lakh the commission payable to Shri J. P. Vaish was 25 per cent. Shri J. P. Vaish was also given medical facility for himself and the members of his family. In terms of the letter of appointment Shri Vaish got no commission in the first year as the mill suffered a loss. In the next year the profit being less than Rs. 1 lakh, Shri Vaish received a sum of Rs. 4,063 as commission. For the assessment year 1948-49, the assessee paid a sum of Rs. 75,465 as commission to Shri J. P. Vaish calculated at the rate of 25 per cent on the profits. The assessee claimed deduction of the said amount from the assessable income. By his assessment order dated June 30, 1949, the Income Tax Officer disallowed the claim on the ground that it was exessive and quite unreasonable looking to the salary paid to Shri Vaish. He also found that no general practice of giving commission at the rate of 25% existed in the assessees line of business. Taking into account the circumstances of the case, the Income Tax Officer determined a sum of Rs. 5,000 as a reasonable amount payable as commission. Against the disallowance of Rs. 70,465 paid as commission to the General Manager, the assessee preferred an appeal to the Appellate Assistant Commissioner of Income-tax who by his order dated October 31, 1949 found that Rupees 5,000 was not sufficient and it was reasonable to allow the payment of commission at the rate of 12%. He accordingly increased the commission payable from Rs. 5,000 to Rs. 37,732 in that year. The assessee took the matter in appeal to the Income Tax Appellate Tribunal which by its order date July 10,1950 dismissed the appeal. As directed by the High Court the Appellate Tribunal submitted a statement of case under Section 66 (2) ofthe Income Tax Act, 1922 on the following question ofin the circumstances of the case the sum of Rs. 37,733 paid to the General Manager Shri J. P. Vaish, which has been disallowed by the Income-tax Appellate Tribunal was an amount laid out or expended wholly or exclusively for the purpose of the business of theits judgment dated May 22, 1962 the High Court answered the question against the assessee. Against the judgment of the High Court the present appeal is brought by special leave.2. Sections 10 (2) (x) and 10 (2) (xv) ofthe Income Tax Act, 1922

Reasoning: During the first 14 months the mills made no profits and Shri J. P. Vaish was paid nothing beyond his salary and car allowance. In the next 12 months he succeeded in securing an order for Lohis from Government and so the mill made some profit and the amount of the Managers commission was proportionately very small in terms of the agreement. The large profit in 1946-47 was made due to new design of civilian rugs Shri Vaish introduced for the first time in the mill after studying public tastes and the qualities and designs prevailing in the market. It was also said that Shri Vaish had a special aptitude to show in his work so far as the marketability of the goods was concerned. After the death of Shri Vaish in July 1947, the firm was converted into a company and the post of the General Manager was abolished and one of the Directors who managed the affairs of the company was given Rs. 18,000 per annum as remuneration and Rs. 6,000 per annum as allowance for the accounting year 1947-48. The Appellate Tribunal took the view that the post of General Manager carried the responsibility equal to that of the Director who was given the charge of the conduct of business after the death of Shri Vaish, the General Manager. This post carried a remuneration of Rs. 18,000 plus Rs. 6,000 i. e., a total remuneration of Rs. 24,000 per annum and therefore the commission paid to Shri Vaish in excess of this amount was not really paid wholly for the purpose of carrying on business. But it was pointed out on behalf of the assessee that Shri J. P. Vaish had taken over the mill at a time when it was old and dilapidated and in the first 14 months the mill made no profit and Shri Vaish was paid nothing beyond the salary and car allowance. In the succeeding year he was able to secure an order from the Government on account of which the mill made some profit. Shri Vaish introduced for the first time a new design of civilian rugs in the year 1946-47 during which a large profit was made. It was therefore contended on behalf of the assessee that the position of Shri Vaish who worked in the mill at the initial stage and of the Managing Director was not comparable and the Appellate Tribunal was wrong in taking this circumstance into consideration. Counsel for the assessee also pointed out that Shri Vaish was educated in a Public School of Dehradun and thereafter studied at the Benaras College and at the Engineering College of the Benaras Hindu University for Electrical and Mechanical Engineering and then joined the Commerce College at Delhi. After that he had training in the Aluminum Corporation of India Ltd., Lakshmi Rattan Cotton Mills Ltd. and the Road Products Ltd., Rampur. In view of the circumstances of the case it was urged on behalf of the assessee that the entire amount of Rs. 75,465 paid to Shri Vaish was an amount laid out wholly and exclusively for the purpose of the business of the assessee within the meaning of Section 10 (2) (xv) of the Income-tax Act, 1922.4. We should make it clear that in this case we are not called upon to decide whether the Income Tax Officer could exercise the power he exercised under Section 10 (2) (x) of the Income Tax Act. The question referred by the Tribunal and answered by the High Court only deals with the claim of deduction of the amount paid to Shri J. P. Vaish under Section 10 (2) (xv) and not under Section 10 (2) (x) of thethe present case, both the Appellate Assistant Commissioner and the Appellate Tribunal rejected the view of the Income Tax Officer that the rate of commission paid to Shri Vaish was not fixed on account of business considerations but there was some collateral reason. But considering the practice in similar business concerns, the Appellate Assistant Commissioner expressed the view that the rate of 12 1/2 % commission was reasonable and the allowance was therefore restricted to half of the amount claimed by the assessee. The view of the Appellate Assistant Commissioner has been affirmed by the Income Tax Appellate Tribunal. The case of the assessee, however, is that a higher rate of commission of 25% was fixed for Shri J. P. Vaish because the mill was old and dilapidated and it never made profit of even a lakh of rupees in the past and that the rate of 25% was fixed in order to create special interest of the General Manager for accomplishment of the task entrusted to him. In our opinion, neither the High Court nor the Appellate Tribunal has applied the proper legal test in thisour opinion, the principle of this decision applies to the present case and it must accordingly be held that in the circumstances established by the assessee, the entire amount of Rs, 75,465 paid to the General Manager Shri J. P. Vaish was an amount laid out or expended wholly and exclusively for the purpose of the business of the assessee.