Keshav Mills Ltd v. Commissioner of Income-tax, Bombay

1953. January 30. The judgment of Mehr Chand Mahajan J., Das J. and Bhagwati .J. was delivered by Bhagwati J. Bose J. delivered a separate judgment. BHAGWATI J.-This is an appeal from the judgment and order of the High Court of Judicature at Bombay upon a reference by the Income-tax Appellate Tribu­ nal under Section 66 ( 1) of the Indian Income-tax Act, 1922, whereby the High Court upheld the decision of the Appellate Tribunal that two amounts of Rs. 12,68,480 and Rs. 4,40,878 were the sale proceeds of goods sold by the appellant to merchants in British India, were received in British India and were liable to income-tax in British India. The appellant is a company registered in the Baroda State, as it then was, prior to its merger with India. It manufactmes textile goods in Petlad in the Baroda State and after the goods are manufactured they are sold by the company ex-mills. The company employs Messrs. Jagmohandas Ramanlal & Co. as guaranteed brokers. That firm guarantees the sale price of goods sold by the company ex-mills to the purchasers from Ahmedabad and receives commission as consideration for the guarantee and the work which it does for the company. The company is a non-resident and its accounts are maintained according to the mercantile system. .. S.C.R. SUPREME COURT REPORTS 953 195.J In the assessment year 1942-43 (the previous year being the calendar year 1941) the total sales of the d b h d Ke8ha·v Mills goo s y t e company amounte to Rs. 29,68,808. In making the assessment on the company for that assess- L~~· . ment year the following three amounts were considered Commissioner of for the purpose of determining the company's liability Income-wx, to British Indian tax. Bombay. (a) Sale proceeds recovered through Messrs. Jagmohandas Ramanlal & Co. (b) Sale proceeds through British Indian banks and shroffs re· ceived by means of drafts or hundies drawn by the com­ pany (Railway receipts handed over to British Indian merchants by the banks on payment). Rs. 12,68,480 Rs. 4,40,878 ( c) Sale proceeds received by cheques on British Indian banks and hundies on British Indian shroffs and merchants, and collected by the banks and shroffs Rs. 6,71,735 Total Rs. 23,81,093 As regards item(a)the company debited the account of the firm of Messrs. Jagmohandas Ramanlal & Co. with Rs. 13,41,744 which represented sales made by the company to merchants ofAhmedabad whose payments were guaranteed by that firm, and credited the sales account with the amount of the bills. }fossrs. Jagmo­ handas Ramanlal & Co. collected the amounts of the bills from the merchants at Ahmedabad and credited the sums recovered in the company's accounts with banks and/ or shroffs at Ahmedabad and also made dis­ bursements under instructions of the company to the creditors of the company in British India. All these payments were credited by the· company to the ac­ count of Messrs. Jagmohandas Ramanlal & Co. and during the relevant accounting year the company thus Bhagwati J. 19!iJ received Rs. 12,68,480 agai115t the total debits of Rs. 13,41,744. Keshav Mills Ltd. As regards item (b) the eompany received Rs . . v: 4,40,878 by drawing hundies or drafts for the amounts Oointni8Bioner of of its sales bills (including the forwarding charges and Income.tax h f 't fj th ·n · t h · ) Bombay. ' t e cost o trans1 _rom e m1 ~premises o t e station on the merchants m favour of recognised banks and Bhaywati J. shroffs in British India, by sending the same to those banks or shroffs with the railway receipts duly en­ dorsed in favour of the merchants and by instructing the banks or shroffs to recover the amounts including the costs of transmitting the same to them. The amounts of these sales bills were debited by the com­ pany to the accounts of the respective merchants and credited to the sales a.ecount and the sums recovered by the banks or shroffs from the merchants in British India against the delivery of the relative railway receipts were on receipt of the same by the company credited to the accounts of the respective merchants in their books of account. As regards item (c), the company received Bs. 6,71,735 from the merchants by cheques and hundies drawn on banks and shroffs in British India in favour of the company. These cheques and hundies were negotiated by the company in Petlad and sent back for credit to its accounts with those banks and shroffs. The said cheques and hun­ dies were cashed in British India and the sale proceeds remitted by the banks and shroffs to the company. The amounts of the sales bills were debited to the accounts of the merchants in the books of the coml)any when the goods were invoiced to the merchants and these accounts were credited with the moneys thus received by the company from the merchants. 'l'he Income-tax Officer brought to tax the profits derived by the company represented by the said three items in the assessment year on the basis that the sale proceeds having been received in British India the pro­ fits were received in British India. The Appellate Assistant Commissioner on appeal held that profits J S.C.R. SUPREME COURT REPORTS 955 from items (a) and ( c) were exempt from British Indian 19,;3 tax while thos!l represented by item (b) were rightly Kesha• Mills taxed. The Department filed an appeal to the Appel- Ltd. late Tribunal against the decision of the Appellate v. Assistant Commissioner in regard to items (a) and (c) Commissioner of and the company filed an appeal in respect of item (b ). Incmne-tax, The Appellate Tribunal held in regard to item (a) that Bombay. the merchants in British India were not absolved either in law or in-fact from their responsibility to pay to the company its dues by virtue of the debit entries in the accom1t of Messrs. Jagmohandas Ramanlal & Co. and in regard to item (b) that the payment of the amounts dne was a condition precedent to the delivery of goods by the banks in British India on behalf of the com- pany. The Tribunal therefore held that profits arising from items (a) and (b) were rightly subjected to tax. As regards item (c) the Tribunal held that Rs. 6,71,735 "were received by the assessee company directly from the merchants in British India by chequesandhundies drawn on banks and shroffs in British India in favour of the company but were negotiated in Petlad and sent for credit to the company's account. The amounts were received at Petlad and once they were received there, they could not be held to have been received again in British India ". The Department asked the Tribunal to refer to the High Court the question of law arising on item ( c) and the company asked the Tribunal to refer to the High Court the question of law arising on items (a) and (b) and the Tribunal therefore referred the following question of law to the High Court:-- " Whether on the facts and in the circumstances of the case, the sums of Rs. 12,68,480, Rs. 4,40,878 and Rs. 6,71,735, or any of them, which, represents receipts by the assessee company of its sale proceeds in British India, include any portion of its income in British India ? " The High Court held that Rs. 12,68,480 were received in British India and included the profits and gains of the business of the assessee company. It held t,hat Rs. 4,40,878 also were received in British India Bhagwati J. 1os.1 and the company was liable in respect of that amount. K<BhavMills In regard to the item of Rs. 6,71,735, the High Court found that the facts stated by,· the Tribunal were not Ltd. v. sufficient to enable it to reach a decision and therefore Oommissione1· of directed that the Tribunal should submit a supple­ b1em11e-1ax, mentary statement of case setting out the several B01 •1bay. aspects set out in the judgment. 'l'he High Court Bhagwati .J. reframed the question in regard to the two items of Rs. 12,68,480 and Rs. 4,40,878 in the manner follow­ ing:- (1) ·whether the sums of Rs. 12,68,480 and Rs. 4,40,878 were sale proceeds of the goods sold by the assessee to merchants in British India or were debts due by the said merchants? (2) Whether if they were sale proceeds, they were received in British India ? and answered them by stating that they were sale proceeds and they were received in British India. There was also a third question which was comprised in the reference and that question was framed as under:- Whether the profits of the assessee's business are included in the sums of Rs. 12,68,480 and Rs. 4,40,878 ? This question was also answered by stating that they were included in these two sums. The company obtained leave from the High Court to appeal against the decision in regard to the two sums of Rs. 12,68,480 and Rs. 4,40,878 and hence this appeal. It is common ground that the company is a non­ resident and its accounts have been regularly kept ac­ cording to the mercantile system. Its balance sheets were also prepared on that basis. The company was assessed to tax in British India on the basis that these two sums of money were received in British India by or on behalf of the company. In regard to the item of Rs. 12,68,480, even though the amounts of the sales bills were in the first instance debited by the company in its books to the account of Messrs. Ja,gmohandas Ramanlal & Co, the sale proceeds in accordance with J S.C.R. i'lUPREllfE COl'RT REPORTS 957 the terms of the sales hills were pitid by the respective 1953 merchants to -Yiessrs. J agmohandas Ramanlal & Co. in Keshav Mills British India and were either credited bv Messrs. Ltd . • Tagmohandas Ramanlal & Co. in the comp~ny's ac- v .. counts with banks or shroffs in British India or were Oommisswner of l. b d b h . d . h h . . Incom,,-taz, c JS urse y t em m accor ance wit t e mstruct10ns Bombay. of the company in British India. In regard to the item of Rs. 4,10,878 even though the amounts of the Bhagv•ati J. sales bills were debited in the first instance by the com- pany to the accounts of the respective merchants in the books of account at Petlad the relative railway receipts were sent by the company to banks or shroffs in British India together with drafts or hundies in con- nection with the same with instructions that deliverv of the railway receipts should he given to the respec- tive merchants against payment and the amounts of the s<tles bills were thus paid by the respective mer- clrnn ts to the banks or shroffs in British India and were tmtrnmitted under the instructions of the company by the banks and shroffs in British India to the company at Petlad. Prima facie therefore the amounts of the sales bills in both the citses whether they were paid to )fo,:irn .. fagmohandas Ranmnlal & Co. or to the banks or Rhroffs through \1·hom the railway receipts were negotiated were paid by the mercha1its in British India and were received by Messrs .. Tagrnohandas Ramanlal & Co. and the banks or shroffs on behalf of the com- pany in British Indin. The receipt of these itmounts thus fe!l within section 4 (1) (a) of the Act and the - profits or gains of this business thus were received in British India by or on behitlf of the company. The company however sought exemption from lia­ bility to tax on the grounds (a) that the accounts of the company were kept on the mercantile or book profit basis under which the accrual of profit as shown in the account was the criterion of taxability and section 4(1) (a) had no application at all; (h) that it was obliga­ tory on the authorities under section 13 of the Act to accept that systPm of maintaining accounts except under the proviso to that section and that the method of computation there was made the very basis of 124 958 SUPREME COlJRT REPORTS [1953] 19.13 chargeability and section 10 read with section 13 operated to save these amounts from chargeability and Keshan Mills d ' d (c) that the amounts having been treate as receive Ltd. v... when credit entries were made in the books of account, OommiBaioner ~I and chargeability having crystallised on the date when Income-tax, the income accrued or was treated as received, there 8 1:!.nbay. was no further scope for a charge when the amounts were su bsequentl.Y actually· received and the subse-Bhagwati J, quent handling of the amounts by the company and the receipt thereof in British Indir1 were of no conse­ quence. The mercantile system of accounting or what is otherwise known as the double entry system is opposed to the cr1sh system of book keeping under which fl record is kept of actual cash receipts and actual cash payments, entries being made only when money is actlrnlly collected or disbursed. That system brings into credit what is due, immediately it becomes legally due and before it is actually received and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed. The profits or gains of the business which 'are thus credited are not realised but having been earned are treated as received though in fact there is nothing more than an accrual or arising of the profits at that stitge. They are book profits. Receipt being not the sole test of chargeability and profits and gains that have accrued or arisen or are deemed to have accrued or arisen being also liable to be charged for income-tax, the assess­ ability of these profits which are thus credited in the books of account arises not because they are received but because they have accrued or arisen. Mr. Kolah appearing for the company drew our attention to the following cases:~ · Subramaniyan Chettiar v. Commissioner of Income­ tax('), Ahmed Din Allad-itta v. Commissioner. of In· come-tax, Punjab('), Kanical Nayan Hnmir Singh v. Commissioner of Income-tax, Ajmei<Merwara(') and (r) (1927) i l.T,C. 365. (2) (1934] 2 l,T.R. 369, (3) (1938] 6 I.T.R. 675. ..... . . J s.c.R. SUPRE~IE UOU1-t1' REPORTS 959 Cornmissioner of 1 ncome-tax v. Shrimati Singari 1963 Bai('). Keshav Mills The assessees there were all residents in British India Ltd. and maintained their books of account according to v. the mercantile system. Except in the case of Commis- Commi••ioner of sioner of Income-tax v. Singari Bai(') where the assess- Income-tax, ment was in respect of the total ineome or profits, Bombay. stray items of income treated as received in British Bhagwati J. India were sought to be charged for tax and they were all assessed for tax not on the basis of actual receipts in British India but on the basis of their having ac- crued or arisen in British India. The cases were de- cided with reference to the law as it stood before the amendment in 1939 which under seution4(1) rendered liable to tax all income, profits or gains from whatever source derived, accruing or arising or received in British India or deemed under the provisions of the Act to accrue, arise or to be rec~iYed in British India. The question that arose for the determination of the courts was whether under the mercantile system, pro- fits which were credited in the books could be taxed even though they had in fact not been received and the conclusion reached by the courts was that these profits credited in the books of account were earned and could be charged as having accrued or arisen with- in British India even though they were in fact not received. In none of these cases were the courts con- cerned with a non-resident claiming to have received profits or gains outside British India under the mer- cantile system of accounting and claiming exemption from liability to tax under section 4 (1) (a) in respect of profits actually received in British India. It follows from the above that the mercantile system of accounting treats profits or gains as arising or ac­ cruing at the date of the transaction notwithstanding the fact that they are not received or deemed to be received and umler that system, book -profits are assessed as liable to tax. lf an assessee therefore re­ gularly adopts the mercantile system of accounting he would be liable to tax on the profits thus credited by (1) [1945) 13 I.f,R. 224. 960 SUPREME COURT Rj~f>ORTS ll953] 1953 him in his books of account subject to all deductions for bad debts as provided in section 10' (2) (xi). Sec-Keshav M ill8 tion 4 (1) (a) has nothing to do with this basis of tax-Ltd. l j v. ation. Section 13 which is an integra part oft te com- Oommissioner ofputation of the total income of the assessee and is Income-ta.•, compulsory on the income-tax authorities as well when Bombay. computing the total income (vide section 2 (15) ) does Bhagwati J. not lay down ri,ny exemption from liability. It only sets up a mode of computation of the income which is liable to assessment and imposes upon the income-tax authorities an obligation to accept the mode of ac­ counting regularly adopted by the assessee except in the cases where the proviso to that section comes into operation. The profits earned and credited in the books of account being thus taken tts the basis of com­ putation, the system of accounting postulates the ex­ istence of debts in so far as moneys remain due and payable by the parties to whom they have been debit­ ed and when it is realised that these debts are not re­ coverable the assessee gets a deduction fdr the bad debts under section 10 (2) (xi). This however does not mean that the transaction ltS it has been recorded in the books of account under the mercantile system of accounting or the double entry system is metamor­ phosed or the relationship between the parties assumes a different character. What was in its inception a transaction of sale and purchase is not converted into another transaction as between creditor and debtor. The relationship as between vendor and purchaser still subsists and there dues not come into existence a new relationship as between creditor and debtor with all its necessary consequences. The transaction as it has been recorded in the books of account has got to be worked out to its fullest extent. _;\forely because the goods have been supplied and the price thereof has been de­ bited to the purchaser the rights and obligations of the vendor and purchaser inter se arc not in any manner affected. The vendor is bound tu fulfil all his obliga­ tions under the contract and continues to be liable for all the consequences of his default including rejection of his goods by the purchaser or a claim for d1images ' s.c.R. SUPREME COURT REPORirs 96i 1953 for breach of wal'l'anty by him. The purchaser is equallv entitlec'l to reJ· ect the 0aoods or to claim the .J Keshav M il'1s damages as on breach of warranty by the vendor and Ltd. all these rights and obligations have got to be worked v. out in spite of the fact that the entries are made in Oonunis•ion" of the books of account by the vendor in ;1ccordance with Incorne-tax, the mercantile system of accounting adopted by him. Bombay. The vendor could not say tha.t he is under no further Bhagwati J. obligation to the purchaser and that the purchaser must pay the price of the goods debitPd to him as a debt arising out of the book entry. The count in any action filed by the vendor against the purchaser would be a count for the price of goods sold <ind delivered and would not be a count on an assumpsit for re- covery of a debt due by the debtor to him. It is clear that under these circumstances there is no receipt of the moneys !Lt all, either actual or construc­ tive, in cash or in kind, by actual payment or by adjustment or settlement of accounts. There is also no scope for the <irgurnent, that even though these sums ma v not be said to be either actuallv or construc­ tively re~eived they should be "deemed to be receiv­ ed". The expression "deemed to be received" only meam; deemed by the provisions of the Act to be re­ ceived. The phrase statutory receipt might be con­ veniently employed to cover income which is "deemed to be received'', and instances of such statutorv re­ ceipts are to be found in the provisions of the Ac:t,"e.g., section 18 (4), seetion 58 (E), section 58 (J) (3), sec­ tion 7(2), section 16(1) (c) and sections 19 (2) (vii) and HJ(2). (See the observations of Beaumont ('.J. in Com­ missioner of lncorne-ta;c, Bombay v. New India Assw1·­ ance Co. Ltd.(1 ). An amount cannot be "deemed to be received" merely by the volition or sweet will of an indiYidual. In all the cases which we have mentioned above the profits earned which >rnre credited in the books of account according lo the mercantile system of accounting were at best "treated as having been re­ ceived" which is neither "received" nor "deemed to be received" and therefore not within the purview of section.4(1) (a). (1) [1938] 6 I.T.R. 603 at p. 614. 962 SUPRE.VIE COUR'i; nEPORTS [1953] 1953 If then profits which have Leen thus credited cannot be said to be received nor deemed to have been receiv­KP,shav A!ifls ed when the entries were made in the books of account, Ltd. v. the contention urged before us by Mr. Kolah that Goin1ni . .aioner of there could not be a second receipt of the amount in Income-la.>:, British lndia does not survive. [t is true that the llombay. words used in section 4(1) (a) rnlate to the first receipt after the accrual of the income. Once it is received bv BhugwatiJ. " the party entitled to it, in respect of any subsequent dealing with the said amount it cannot be said to be "received" as income on that occasion. [Per Kania J, in B. ;JI. Kamdar (1)J. The "receipt" of income refers to the first occasion when the recipient gets the money under his own control. Once an amount is received as income, any remittance or transmission of the amount to another place does not result in "receipt", within the meaning of this clause, at the other place. 'l'his was definitely established by the Privy Council in Pond-icherry Rail1cay Co. v. Commis8-ioner of lncome­ 'J'ax (') :i,ml in Commissioner of Income-tax v. J.Vlathi­ as (3). If, therefore, the income, profits or gains have been once received by the assessee even though out­ side British India they do not become chargeable by reason of the moneys having been brought in British India, because what is chargeable is the first receipt of the moneys and not a subsequent dealing by the assessee with the said amount. In that event they are brought by the assessee as his own moneys which he has already received and had control over and they cease to enjoy the character of income, profits or gains. This ratio however does not apply to the facts of the present case before us. The moneys were neither received by the company nor could be deemed to have been received by it when the entries were made in the books of account at Petlad. They had merely accrued or arisen to it and so far as the receipt thereof is con­ cerned they were first received in British India when \hey were received by Messrs. Jagmohandas Ramanlal (r) [r946] r4 l.T.R. 14 at p. 39, (z) [1931] 58 l.A. z39. (3) [1939] 66 I.A. z~. , , . S.C.R,. SUPREME COURT REPORTS 963 1953 & Co. or by the various banks or shroffs in British India through 'whom the railway receipts were negoti-- Keshav i.ll1'll8 ated. The first receipt of the moneys was therefore Ltd. when they were paid as such by the merchants to v. Messrs. J agmohandas Ramanlal & Co. or to the various GommiBBioner of banks or shroffs as above. W'hatever paid by the Income·tox, merchants to these several parties were the sale pro- Bombay. ceeds of the goods which had been sold and delivered Bhagu·atiJ. by the company to them and they were received with- in the meaning of section 4 (1) (a) of the Act by these several parties on behalf of tho company in British India at the time when these payments were made by the merchants to them. Mr. Kolah pressed into service the argument based on section 13 of the Act that the mercantilo svstem of accounting regularly adopted by the assessec \vas obli­ ga.tory on the income-tax authorities for computation of his income. l'Vhile agreeing generally with that sub­ mission in case of residents, we doubt whether that position would be available to a non-resident, who maintains his books of account outside British India according to the mercantile system. The section would only be relevant where the total profits of the assessee have to be computed, in which event he would be entitled to claim that they should be computed accord­ ing to the syHtem of accounts maintained hy him. But the section would hardly be relevant where stra.y items of income are caught iu taxable territories as received in taxable territories by a non-resident. The entries in the present ease were put in merely to prove that the sale proceeds were received outside British India where the entries were made. That contention however could not be sustained, as section 4 (1) (a) is concerned with cases of actual receipt and not with cases of pa­ per receipts. Having regard to the observations. made above we have come to the conclusion that the High Court was right in holding that the two sums of Rs. 12,68,480 and Rs. 4,40,878 wBre the sale proceeds of the goods sold and delivered by the appellant to merchants in British India, that they were received by Messrs, 964- SUPREME COt'RT REPORTS [1953] 1953 J agmohanclas Itamanlal & Co. and by the banks and Ke&hav Mills shroffa through whom the railway receipts were nego· L tiatecl, on behalf of the appellant in British lnclia, that td. v. they were liable to tax under section4(1) (a) of the Gommi . .,ioner of Act as having been received in British India on its be· Income-tax, half, that there is nothing either in the facts and circum- Bombay. stances of 1ohe ease or in law why they should be ex- flhagwatiJ. empted from such liability, that the a.nswers given to the questions which were ultimately considered by the High Comt were correct, and the appellant was rightly held liable for the tax on these two amounts subject to all just deductions and allowances. The appeal therefol'e fails and must stand dismissed with costs. Bo.SE, J.-I respectfully disagree. Section 3 of the Indian Income·t8~x Act provides that the "total income" is to be charged in accord­ ance with the provisions of the Act. We have there­ fore to see what "total income" means. "Total income" is defined in section 2(15). It means (not" inclmles" but means) the total amount of income, profits and gains "referred to in sub-section (I) of section 4 computed in the manner laid down in this Act." Then-fore, the computation of all income referred to in section 4( 1) has to be "in the manner laid down in the Act ". Section 4 (apart from the provisos and explanations) is divided into three clauses, (a), (b) and (c). Clause (b) deals with residents and (c) with non-resident5. As (a) is general, it is legitimate to infer that it refers to both. Therefore, the words "received" and "deemed to be received " must be constrned in tho same sense in both cases except of course where it is otherwise provided in the Act, for sub-section (1) is made subject to the provisions of the Act. 'N' ow the words "deemed to be received" can be exduded from consideration at once because I agree that they are confined, and are intended to he confined to what I may call the deeming sections in the Act., that is to say, to cases where the deeming must be clone ' . ' S.C.R. SUPREME COURT REPORTS 965 under the express provisions of the Act. That leaves 1953 us with the wdrd "received" (I am of courne only deal- Keshav Mills ing with section 4(1) (a) which deals with "receipts" Ltd. and not with section 4( 1) ( c) which refers to "accruals" v. and "arisals" and to that which is deemed to "accrue" Commissioner of or ''arise"). Now this, in my opinion, is to be contrasted with the words "accrue" and "arise" which are used in clauses (b) and (c). Though there may be overlapping in some cases, I do not think the three are intended to mean the same thing. The Privy Council thought in Commissioner of Income-ta.r v. 1Jiathia8(1 ) that there is some variation in meaning between them and in Com­ missioner of Income-tax v. Chun-ilal B. Mehta(') they drew attention to the antithesis between "accruing and arising in" and "received in'', though they also said in the earlier case that there is not a complete disjunction between them and that they are not three mutually exclusive qualifications (page 56); that is, that there may be some overlapping in cert:i,in cases. Next, we turn to section 6 which divides the various sources of income under various heads for the purposes of computation and chargeability and states that each head shall be "chargeable" "in the manner herein­ after :i, ppearing". It is to be observed that the word "shall" has been user! and not" may" thereby imply­ ing that there is no option in the matter. So far as business is concerned, the he:i,d is No. (iv) "Profits and gains of business etc."' That carries us on to sections 10 and 13 which P.re­ scribe the method of computation. Here again, the language is imperative and in the case of a business the method of computation has to be in accordance with the method of auuounting regularly employed by the assessee: s00 Commissioner of Income-tax v. Kameshwar Singh(·). Now in the present case, the method of accounting was the mercantile system. The essential difference (r) [1939] 7 J.T.R. 48 at 56. (3) [1933] I I.T.R. 94 at IOO and IOI, (2) [1938] 6 I.T.R. 521 at 527. 125 Income-tax, Bonibay. 966 SUPREME COCRT REPORTS [1953] 19!i3 between this and the cash basis system is that in the latter actual receipts and disbursements'are taken into J(e.<;hav Mi'.ll8 account. In the former, sums which are due to the Ltd. v. business are entered on the credit side immediately Commissioner oJthey are legally due and before they are actually Income-tax, received and expenditures are entered the moment a Bombay. legal liability to pay arises and before the actual clis- Bose J. bursements. The profit or loss at the encl of the accounting year is therefore based, not on a difference between ~hat was actually received and what was actually paid out, but on the difference between the right to receive and the liability to pay. I find it impossible in such a case to say that the taxation is on income, or profits and gains which were "received". It can only be on profits which ''accrued" or "arose" to the assessee in the accounting year: see the Privy Council in Feroz Shah v. Commissioner of Income-tax('). That, in my opinion, excludes section 4(1) (a) ttnd that in turn means that in such a case a resident is taxed under section 4(1) (b) and r1 non-resident under section 4( 1) ( c ) . .N'ow, this to my mind is of vital importance. The primary object of the Income-tax Act is to tax and not merely to ascertain rm income. The computation of the income is subsidiary and is only for the purposes of ascertaining the quantum of the tax : see Goimnis­ sioner of Income-tax v. Karne8hwar Singh('). Therefore, if the legislature chooses to lay down different methods of computation and say that the taxation shall be on the amount so computed, it is essential that these methods be adhered to. In some cases this may be to the advantage of the assessee and in others it may operate to his disadvantage. But that is immater­ ial. The importance lies in this. All that can be taxed in a given year are the profits and gains which are received or which arise or accrue in the " previous year", and if the Act directs that the profits are to bfil computed in a given case on "accruals" or "arisnls" and not on actual receipts it is essential that that b@ (1) [1933) l I.T.H. 219 at 224 and 225. (2) [1933] l l.T.R. 94 at IOO. ' •• j •• S.C.R. SUPRE~IE COlJRT RE1)0RTS 967 done ; and it follows from that that the tax in such a 1953 case can only be on the accruals or arisals and not on Kesha11 Mills the actual receipts, for clearly you cannot tax on that LU. which you are forbidden to compute in a case where v. the tax can only be levied on \\·httt is computable Gommiseioner ~I under the Act. Income-ta.•. It is important to draw the distinction for this rea- Bambav. son. The rate of tax varies from year to year, there- Bo•e J. fore if the book profits which are dirPcted to be taxed in a given year are, say, Rs. 10,000 and the actual receipts only Rs. 100, it makes a lot of difference which figure is taken; nor does it even itself out in the long run, for if the rate of taxation inereases in th(' following year and the state of the \rnsiness is just the reverse, namely that the book profits ?,re only Rs. 100 whereas the actual receipts arising from the previous year's transiwtions are Its. 10,000, it will make a considern hie difference to the asses see in the aggregate of tax payable over the years, whether he pays on the basis of book profits or actual receipts in the two years. I am not able to draw tt di:;tinction between a resi­ dent and a non-resident in thrso matters. I can find no ground for holding that in the case of a resident the mercantile system must he adopted for computing the profits if that is the system of accounting regularly employed but that that need not be done in the case of a non-resident. If the assessee had been a resident company, the taxation would, in my opinion, have been under section 4(1) (b) on profits and gains which had accrued or arisen and not under section 4 (1) (a) on profits which had been received. The same principle must, in my opinion, be applied in the case of a non-resident and therefo1·e section 4 ( 1) ( c) is attracted, provided the profits and gains ha Ye actually accrued or arisen in the taxable ten-itorics or they can, because of section 42, he deemed to haYc accrued or arisen there. If section 4 (I) ( c) is not attracted, then the tax cannot be levied. Now, applying section 4 (I) (c), the question is where do the profits and gains arise or accrue in a casP 968 SUPREME cotrRT REPORTS [1953] 1953 like the present ? This is not free from. difficulty and Keshav Mills various views have been, and can be, taken. But as Ltd. these expressions have not been defined and as they v. are not words of art, I think they should be construed CommiSBioner 0! in their ordinary meaning which businessmen would Incom•·tax, ordinarily and easily understand in a business transac- Bombay. tion. When goods are solcl it is to my mind evident 80., .J. that the profit or the loss on any particular transac­ tion arises out of the sale, for until there is a sale there can be no profit. The profit may 1{ot be wholly attributable to the sale but that is <tnother matter. It is to my mind unquestionable that they arise, in part, at any rate, out of th0 sale. Therefore, ifthe goods are sold in the taxable terri­ tories, then, to my mind, the profits, or a portion of them, arise there. As the Privy Council pointed out in Commissioner of J ncome-la.J; v. Chimil1il 13. 1VI ehta(' ), in determining where the profits arise the place of the formation of the contract is not the sole criterion, other matters, as for example acts done under the contract are also material. I am not here attempting to go behind the clecision of the Supreme Court to the effect that the place of sale is not necessarily the place of the receipt of the profits. I am construing the word "arise " and not "receive". That brings me to the next question, where were the goods in the present case sold? That is a mixed question of fact and law and must vary in each case and must, in my opinion, be answered in a common­ sense way and not necessarily in the artificial manner laid down by the Sale of Goods Act to determine where and when the property passes. What are the facts here ? In the case of the Rs. 4 lakhs odd, the control over the corpus of thP goods was retained by the assessee right up to the moment the price was paid; and the price was paid not outside British India but to his nominees in this country, namely, to the assessee's banlrn in .British India. These banks retained the documents of title and had the right to refuse (!) [1938] 6 J.T.R. SZI at 533· ). • S.C.R. SUPREME COUR'f REPORTS 969 delivery until ,the money was actually handed over. 195J Therefore, the right to get iiossession of the baoods and Keshav M?°lls to take deliverv accrued or arose in British Indit1 • Ltd, where the money was actually paid, and that to my v. mind must be taken to be the place where the profits Commissioner of accrued and arose for income-tax purposes, not be- Income.tax, cause the money was received there, for we are not Bombay. concemed with actm1l receipts, but because the right s • ., J. which accrued at the date of the transaction was to receive the money in British India and hand over the goods there on the receipt of the money. As I haye said, the substance of the transaction must be viewed and that cannot be made to depend upon the method of book-keeping. Even if there are no books the profits on such a transaction would accrue in the place where the money is to be paid and the goods are to be hand- ed oveT. I eannot see how that can alter by reason of the method of accounting employed. Accordingly, I agree that the method of accounting >1dopted by the assessee cannot affect the substance of the transactions between the parties or affect their nature. The rights and liabilities of the parties inter se cannot be made to depend on the way in which one of them chooses to keep its books. But that is not the case when we come to the question of taxation for income-tax purposes. There the method of accounting is vital. But even there the substance of the transaction must be viewed, for the substance cannot alter by a mere method of accounting. It is evident that if the assessee had been n>sident in British India and these transactions had ueen omitted from the books, the sums which ought to have been entered would be taxable as items which had escaped assessment even if there had been no actual receipts in that or in any following year. Therefore, it is not the entry in the books which attracts the taxation but the profits on the transaction itself, and when the mercantile system is used the profits arise when the right to receive them accrues and not when t.hc entry is made. 1f tho sys-tern is properly employed the e11try is made as soon as the ri~ht to receive the price arises and so for all practical 1953 purposes that is the date ordinarily referred to, lmt a man cannot manipulate the amount' of his tax by Ke8hav Mill~· h h l choosing to enter or not to enter items w ic oug it to L~. be entered on a particular date, as and when he 'Oo1nmissloner of}Jleases. lnemne-lax, Bo-mhay. Bose J, Now, the Rs. 4 lakhs odd represent actual receipts but that is not what is taxable when the computation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which ttrise out of these transactions do not, on my view, escape tax be­ cause the profits accrue or arise in the taxable terri­ tories. But the figure on which the tax is to be computed is not the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have not been given. I am of course assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were not, then the Income-tax authorities have power to tax income which, for one reason or another, has escaped assessment. Turning to the Rs. 12 lakhs. We know that the figure entered in the books relating to these transac­ tions was Iis. 13,41,744. I am not clear whether that was entered in the accounting year with which we are concerned, though I gathered that that was the case. The actual receipts, which followed later, amounted to only Rs. 12,68,480. In my opinion, if anything is computable for the purposes of tax, it is the former figure (assuming all the entries arc in the accounting year) and not the latter. But in order to determine whether the profits on these transactions :ire taxable at all, we must examine the transactions. In these cases the sales were to merchants re~ident in Ahmedabad. But according to the assessee's affidavit, " In respect of buyers from Ahmedabad, the applicant Mills have no account of such buyers. The S.C.R. SUPREME COURT REPORTS 971 price is debited to the account of the said Jagmohandas 195t Raml:11 and company and credited to the sales Keshav Mill• account in the books of the applicant:" · Lid. and later, Jagmohandas v. "discharges its debts by making payments to the Commissioner of applicants from time to time towards the balance 1n;,ome-1""'• in their said account in the books of the applicant omhay. Mills. The said amounts arc paid by the said firm by Bose J. paying the same to the credit of the applicant Mills with British Indian banks or shroffs." Now, it is evident from this that Jagmohandas & Company do not merely guarantee payment by tho Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee com­ pany. So little do the buyers matter that their transactions are not even reflected in the accounts. All we have is Jagmohandas. It does not, in my opinion,' matter whether the actual buyers remained primarily and legally responsible to the assessee or not. The fact remains that in practice Jagrnohandas & Company actually met the obligations of the buyers and discharged their liabilities to the assessee. It is equally clear that Jagmohandas & Company must have recouped themselves in some way from the buyers. The question is how. If tho whole of the transactions occurred outside British India and the buyers or their agents went to Petlad and received the goods there and pa.id Jagmohandas & Company outside British India, thf'n I am clear that the profits and gains did not accrue or arise in British India, simply because the goods were ultimately brought there. But if Jagmohan­ cbs & Company or their agents were paid in British 1ndia, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs c>Lse. If Jagmohandas & Company were the actual agents of the assessee as were the banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were not the agents in the strict sense of the term, then I am of opinion that section 42 would be attracted because at the very least there would be a "business connection", 1953 provided of course the payments were made in the taxable territories. Keshav Mills Ltd. Now, here again, I am looking to what was actually v. done in order to determine what the rights were, for Commi,,ioner of it is evident that what was done was done in pursuance Incomc·tax, of some agreement, express or implied, between the Bombay. h h 1 d h h parties w ic . agreement regu ate t eir rig ts, and Bose J, those rights in turn determine the place where the profits accrued or arose, or must, because of section 42, be deemed to have accrued or arisen. In my view, the question referred by the Income­ tax Appellate Tribunal in its statement of the case does not reflect the trnc position because it concen­ trates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessee's income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what wou 1d have happened in circumstances which are not material in this case be­ cause of the mercantile system of accounting which was employed. As regards the High Court. The learned Judges reframed the question and answered it without send­ ing the case back to the Income-tax Appellate Tribunal for a further statement of the case. That was not Htrictly proper. Hut, in my opinion, the reframed questions suffer from the same defect. In my opinion, the case should be sent back to the Income-tax Appellate Tribunal for a reframing of the questions along the lines I hnYe indicated and for a further statement of the case. Appeal di8missed. Agent for the appellants: Rajinder Narain. Agent for the respondents: G. H. Rajadhyaksha.