R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960 Equivalent citations: 1961 AIR 1007, 1961 SCR (3) 271, AIR 1961 SUPREME COURT 1007, 1961 41 ITR 693, 1961 3 SCR 271, 1961 (1) SCJ 695 Author: J.C. Shah Bench: J.C. Shah, J.L. Kapur, M. Hidayatullah PETITIONER: R. G. S. NAIDU AND CO. Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX ANDEXCESS PROFITS TAX, MADRAS(And DATE OF JUDGMENT: 14/12/1960 BENCH: SHAH, J.C. BENCH: SHAH, J.C. KAPUR, J.L. HIDAYATULLAH, M. CITATION: 1961 AIR 1007 1961 SCR (3) 271 ACT: Excess Profits Tax-Excess Profits, unassessed or under assessed--Assessment, if can be reopened-Apportionment of income-Excess Profits Tax Act, 1940 (XV of 1940), s. 15, r. 9, Sch. 1. HEADNOTE: Under an agreement dated July 11, 1945, the appellants were appointed managing agents of the Coimbatore Spinning and Weaving Co. Ltd., for 20 years, and certain remuneration was provided for them including 10% commission on the net profits of the company due and payable yearly immediately after the accounts of the company were closed and commissions on purchases and capital expenditure of the company. Prior to October 1, 1944, the appellants were the R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  1 managing agents of the Coimbatore Mills Agency Ltd., who were the managing agents of the Coimbatore Spinning and Weaving Co. Ltd. The year of account of the appellants ended on March 31, of the company on June 30, and of the Agency Company on September 30. For the assessment year 1945-46 the appellants submitted a return of their income which included the stipulated remuneration and commissions. This return was accepted by the Income-tax Officer, and Excess Profits Tax liability for the chargeable accounting period ending March 31, 1945, was also worked out on that basis. A return of income was submitted by the appellants for the assessment year 1946-47 which included commission for the period 1-4-45 to 30-6-45 on purchases of cotton and stores and on capital expenditure. The Tax Officer directed that the commission on purchases and capital expenditure be taken into account 272 for the year April 1, 1945, to March 31, 1946, and that the receipts be computed accordingly. The assessment for 1945- 46 was then reopened under S. 34 of the Income-tax Act under s. 15 of the Excess Profits Tax Act and as a result of apportionment made by the application of r. 9 of Sch. 1 of the Excess Profits Tax Act, the liability of the appellants for Income-tax and Excess Profits 'fax was revised and fresh assessments were made. The orders of assessment were confirmed by the appellate authorities. Held, that as in the instant case the chargeable accounting period for the assessment of Excess Profits Tax and the year of account of the company did not tally, by the assessment of income made on the assumption that they did tally, there had resulted under assessment and it was open to the Tax Officer to take action under s. 15 of the Excess Profits Tax Act. The Excess Profits Tax Officer acted properly in apportioning under r. 9 of Sch. 1 the commission received by the appellants. Rule 9 of Sch. 1 of the Excess Profits Tax Act is enacted in general terms and it is applicable to all contracts which are intended to be operative for fixed periods. If, for the performance of the entire contract, remuneration is payable at certain rates the profits earned out of that remuneration must be apportioned in the manner prescribed by 19 if the performance of the contact extends beyond the accounting period. E. D. Sassoon & Co., Ltd. v. The Commissioner of Income- tax, Bombay City, [1955] 1 S.C.R. 313, distinguished. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 181 to 184 of 1960. R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  2 Appeals. from the judgment and order dated March 16, 1955, of the Madras High Court in Case Referred No. 43 of 1950. A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for the appellants. Hardayal Hardy and D. Gupta, for the respondent. 1960, December 14. The Judgment of the Court was delivered by SHAH, J.-These appeals relate to Excess Profits Tax liability of the appellants in respect of two chargeable accounting periods April 1. 1944, to March 31., 1945, and April 1, 1945, to March 31, 1946. The appellants were under an agreement dated July 11, 1945, appointed managing agents for 20 years of the Coimbatore Spinning and Weaving Co, Ltd.-hereinafter referred to as the company. Prior to October 1, 1944, the appellants were the Managing Agents of the Coimbatore Mills Agency Ltd--hereinafter referred to as the Agency Company who were the Managing Agents of the company. The year of account of the appellants ended on March 31, of the company on June 30, and of the Agency Company on September 30. Under the agreement by which the appellants were appointed 'managing agents, the following remuneration was provided: 1. Office allowance at Rs. 1,500 per mensem; 2. Commission at 1% on all purchases of cotton and stores and 21/2 on all capital expenditure incurred from time to time; and 3. Commission at 10% on the net profits of the company due and payable yearly immediately after the accounts of the company were closed. For the assessment year 1945-46, the appellants submitted a return of their income inclusive of the following items: 1. Remuneration from the Agency Company Rs. 36,000. 2. Commission at 10% on profits from the Agency Company upto 30-9-1944 Rs. 37,953. 3. Remuneration from company from 1-10-1944 to 31-3-1945 Rs. 9,000. 4. Commission at 1% on cotton and stores purchased during this period Rs. 21,704. This return was accepted by the Additional Income-tax Officer, Coimbatore I & II Circles, and the appellants were assessed to income-tax. Excess Profits Tax was also worked out on the same basis for the chargeable accounting period ending March 31, 1945. For the assessment year 1946-47, the appellants submitted a return of their income which included the following items: 1. Remuneration from the company for one year from 1-4-1945 Rs. 18,000. R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  3 2. Commission at 10% on the profits of the company paid in December 1945 (1-10-1944 to 30-6-1945) Rs. 1,90,889. 3. Commission at 1% on purchases of cotton and stores from 1-4-1945 to 30-6-1945 Rs. 16,777. 4. Commission at 2 12/ %on capital expenditure from 1-10-1944 to 30-6-1945 Rs. 1,690. The Tax Officer in charge of the assessment directed that the commission on purchases and capital expenditure be taken into account for the year April 1, 1945, to March 31, 1946, and that the receipts-be computed accordingly. The amount of Rs. 1,127 attributable out of item 4 was accordingly taken into the account of the previous year after reopening the assessment under s. 34 of the Income-tax Act, and the commission on the profits of the company was apportioned between the period October 1, 1944, to March 31, 1945, and April 1, 1945, to June 30, 1945, by the application of r. 9 of Sch. 1 of the Excess Profits Tax Act. The Tax Officer also determined the proportionate commission payable under items 3 and 4, for the period ending March 31, 1946, and as a result of the apportionment, the liability of the appel- lants, original and revised, for income tax and Excess Profits Tax for the assessment year 1945-46 and chargeable accounting period April 1, 1944, to March 31, 1945, stood as follows: Original assessment of income taxRs. 1,04,654. Excess Profits TaxRs. 45,292. Revised figures Income-tax (loss) Rs. 36,182. Excess Profits TaxRs. 1,41,962-11-0. For the assessment year 1946-47 and chargeable accounting period April 1, 1945, to March 31, 1946, tax liability was computed at: Income-tax Rs. 1,66,271. Excess Profits Tax Rs. 1,13,163-5-0. The orders of assessmentfor income tax and Excess Profits Tax were confirmed by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. On the applications of the appellants for reference under s. 66(1) of the Income-tax Act and s. 21 of the Excess Profits Tax Act, the Tribunal drew up a statement of the case and submitted the following four questions to the High Court of Judicature at Madras: 1.Whether on the facts and in the circumstances of the case, the Income-tax Officer/Excess Profits Tax Officer was right in taking action under s. 34 and 15 of the Income-tax and the Excess Profits Tax Act ? R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  4 2.Whether on the facts and in the circumstances of this case, the provisions of r. 9, s. 1, were properly applied ? 3.Whether on the facts and in the circumstances of the case, the Income-tax Officer/Excess Profits Tax Officer was correct in including the proportionate commission income of Rs. 1,127 for income-tax assessment 1945-46 and Rs. 1,43,163 plus Rs. 1,127 for Excess Profits Tax assessment Tax for the chargeable accounting period ending 31st March 1945, and 4.Whether on the facts and in the circumstances of the case, the proportionate commission of Rs. 37,129 and Rs. 2,299 were rightly assessed for the assessment year 1946-47 ? The High Court answered all the questions against the appellants and in favour of the Department. Against the order passed by the High Court, these appeals have been preferred with certificate granted under s. 66A(2) of the Income-Tax Act read with s. 21 of the Excess Profits Tax Act. Two questions were canvassed in these appeals: 1.Whether it was open to the Taxing Officer to re-open the assessment for 1945-46; and 2.Whether the commission received by the appellants was liable to be apportioned under r. 9 of Sch. 1 of the Excess Profits Tax Act. The appellants maintained their books of account on cash basis and commission received from the company was credited after the accounts of the company were closed. The amounts received by the appellants from the company were included in their return and assessment for the year 1945-46 was completed for the purposes of the Excess Profits Tax by the Tax Officer without apportionment appropriate to the chargeable accounting periods. In so doing, the Tax Officer committed an error. He overlooked the fact that the chargeable accounting period for the as assessment of Excess Profits Tax and the year of account of the company did not tally. Under s. 15 of the Excess Profits Tax Act, if the Tax Officer discovers, in consequence of definite information which has come into his possession that profits of any chargeable accounting period chargeable to excess profits tax have escaped assessment, or have been under assessed, he may serve on the person liable to pay such tax a notice containing all or any of the requirements which may be included in a notice under s. 13 and may proceed to assess or reassess the profits. The provision is substantially similar to s. 34(1) of the Income-tax Act before it was amended in the year 1948. It is manifest that by the assessment of income made on the assumption that the chargeable accounting period and the accounting period of the company tallied, there resulted under assessment in the computation of tax liability for Excess Profits Tax, and it was open to the Tax Officer to take action under s. 15 of the Excess Profits Tax Act. R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  5 Determination of the second question depends upon r. 9, Sob. 1, of the Excess Profits Tax Act. By s. 2(19) of the Excess Profits Tax Act, the expression " profits " means profits as determined in accordance with Sch. 1. That schedule sets out rules for computation of profits for the purpose of the Excess Profits Tax Act; and by r. 9, it is provided in so far as it is material that: " Where the performance of a contract extends beyond the accounting period, there shall (unless the Excess Profits Tax Officer, owing to any special circumstances, otherwise directs) be attributed to the accounting period such proportion of the entire profits or loss which has resulted, or which it is estimated will result, from the complete performance of the contract as is properly attributable to the accounting period, having regard to the extent to which the contract was performed therein." The performance of the contract of managing agency extended beyond the period of account of the company which was July 1, 1945, to June 30, 1946: it covered parts of two accounting periods. The Tax Officer was therefore obliged to apportion to the, chargeable accounting periods the entire profits resulting from the complete performance of the contract in proportions properly attributable to the accounting periods and this, he proceeded to do. Counsel for the appellants contends that the contracts contemplated by r. 9 are those of the nature of engineering or works contracts and the like where execution of the contract involves a profit making operation de die in diem and not contracts where remuneration is payable at a certain time for services performed throughout the stipulated period. It is true that remuneration was paid to the appellants after the expiry of the year of account of the company ; but the contract was one the performance of which extended throughout the year of account of the company. The appellants were the managing agents of the company and they had to perform their duties as managing agents for the whole year. It is not disputed that the contract of agency for 20 years is to be regarded for assessment of excess profits tax as an annual contract. The performance of the contract unmistakably cut across the accounting period is also manifest. The remuneration for performance of the contract is not computed at a daily rate, but is computed on a percentage of the commission on the profits of the company for the whole year, but on that account, the contract is not one in which performance does not extend throughout the year of account. Normally in a managing agency contract, the managing agent may not suffer loss, but that does not rule out the application of r. 9 to managing agency contracts. The terms in which r. 9 is enacted are general: the rule is applicable to all contracts which are intended to be operative for a fixed period. If, for the performance of the entire contract, remuneration is payable at rates stipulated, the profit earned out of that remuneration must be apportioned in the manner provided by r. 9 if the performance of the contract extends beyond the accounting period The judgment of this Court in E. D. Sassoon & Co., Ltd. v. The Commissioner of Income Tax, Bombay City(1) on which strong reliance was placed by the appellants has no application to this case. In that case, M/s. E. D. Sassoon & Co., Ltd. who were managing agents of three different companies transferred the managing agencies to three other companies on several dates during the accounting year. A question arose in the computation of income-tax payable by M/s. E. D. Sassoon & Co., Ltd. whether the managing agency commission was liable to be R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  6 apportioned between M/s. E. D. Sassoon & Co., Ltd. and their respective transferees in the proportion of the services rendered as managing agents for the respective periods of the accounting year. It was held by this court (Jagannadhadas, J., dissenting) that on a true interpretation of the managing agency agreements in each case, the contract of service between the companies and the managing agents was entire and indivisible and the remuneration or commission became due by the companies to the managing agents only on completion of definite periods of service and at stated intervals ; that complete perfor- mance was a condition precedent to the recovery of wages or salary in respect thereof and the remuneration payable constituted a debt only at the end of each period of service completely performed, no remuneration or commission being payable to the managing agents for broken periods; that no income was earned by or accrued to M/s. E. D. Sassoon & Co., Ltd. and as the transfer of the agencies did not include any income which E. D. Sassoon & Co., Ltd. had earned, they were not liable to be taxed under the Income- Tax Act. But that was a case dealing with liability of the assessees who did not receive any income and to whom no income had accrued to pay (1)[1955] 1 S.C. R. 313. income tax on the amounts of remuneration paid to their transferees. The court was not called upon to apply to income received by the assessee the principle of apportionment under r. 9 of Sch. 1 of the Excess Profits Tax Act, or any provision similar thereto. It is r. 9 of Sch. I which attracts the principle of apportionment. The rule enunciated in M/s, E. D. Sassoon & Co.'s case (1) has therefore no application to this case, and the High Court was right in holding that the assessment made by the Excess Profits Tax Officer by apportionment of the commission income between the chargeable accounting periods was correct. The appeals therefore fail and are dismissed with costs. One hearing fee. Appeals dismissed. __________________ R. G. S. Naidu And Co vs Commissioner Of Income-Tax Andexcess ... on 14 December, 1960  7