The Commissioner of Excess Profits Tax, Hyderabad v. M/S. S. R. v. G. Press Company, Kurnool

30 z96z SHAH, J.-The assessees are a firm carrying on Th C -. . business at Kurnool, of manufacturing ground-nut oil e ommission" d k U d h M d G 1 S 1 of Excess p,.ofits an ca e. n er t e a ras enera a es Tax Act ra., Hydcrnbad IX of 1939, the assessees were entitled to a rebate of v. sales tax paid on goods purchased by them and used M /s. s. 11. v. G. in the manufacturing process. The assessees maintain­ .Press Company, ed their books of account according to the Samvat Kurnool Shah]. Year ending with Diwali. The system of accounting was a mixture of mercantile and cash. Purchases and sales of goods on credit were duly entered in the books of account. The sales tax actually recovered by the tax authorities was debited when paid and amounts if any refunded were credited when received. The assessees had adopted the system which was premit­ ted by the Act of paying tax calculated on the turnover of the previous year of account. Under this system, tax was provisionally assessed by the Sales Tax Officer on the basis of the turnover of the previous year, and thereafter the liability was adjusted at the end of the year of account in the light of the actual turnover of that year, and of rebate allowed in respect of ground­ nuts pressed into oil. As a result of the final adjust­ ment made by the sales tax authorities, in some years the assessees were assessed to pay tax in excess of the amount provisionally assessed and in others they obtained refund of the excess tax paid under the pro­ visional assessment. The following tabular statement shows the official years for sales tax, provisional demands made by the sales tax authorities, the final demands and the adjustments made in that behalf: Official Provi- Final Adjustment Year sional Refund/Addi- ended. demand. demand. tional levy. Rs. Rs. Rs. Rs. 31-3-1942 2,679 1,872 807 31-3-1943 3,046 2,863 183 31-3-1944 14,509 18,402 3,893 31-3-1945 47,276 20,037 27,239 31-3-1946 45,315 13,379 31,936 For the assessment year 1946-4 7 (corresponding to the year of account October 18, 1944 to November 4, 1945), the assessees claimed in their assessment to ... - .. / ) 1 S.C.R. SUPREME COURT REPORTS 235 income-tax to deduct Rs. 49,633 being the amount of sales-tax paid under a provisional assessment. In the The Commission" year ending 31-3-1945, the assessees had paid of Excsss Profits Rs. 47,276 as sales-tax provisionally assessed. They Tax, Hyderabad also had paid in that year Rs. 3,894 in adjustment of v. the liability for the previous year towards s~les-tax ~;;;; 5 c:;.;~.~: due. After giving credit for Rs. 1,537 received as Kurnool rebate, the total sales-tax liability under the provi­ sional assessment was Rs. 49,633. The Income-tax Officer accepted this claim, and debited it from the income in the assessment year 1946-4 7 in assessing the taxable income of the assessees. Deduction of sales- tax actually paid under provisional assessment less rebates was permitted by the Income-tax Officer not only in the assessment year 1946-47 but also in the earlier years. The Excess Profits Tax Officer had also adopted for the chargeable accounting period prior to October 18, 1944 the same method of computation, but for the chargeable accounting period October 18, 1944 to November 4, 1945, the Excess Profits Tax Officer allowed out of the amount of H,s. 47,276 debited to sales tax only Rs. 17,055 as properly attributable to that period in computing the Excess Profits Tax liability. According to the Excess Profits Tax Officer, the excess amount paid under the provisional assess- ment i.e., Rs. 30,221 could not be taken into account, because under r. 12 of Sch. 1 of the Excess Profits Tax Act, expenditure in excess of the amount reason- able and necessary for the business was not a permis- sible deduction. In appeal against the order of the Excess Profits Tax Officer, the Tribunal affirmed the order. Against the order passed by the Tribunal con- firming the order of the Excess Profits Tax Officer, the assessees applied for and obtained an order refer- ring the following question to the High Court of · Judicature of Andhra Pradesh, "Whether there are materials for the Tribunal to hold that the aforesaid sales-tax payments of Rs. 30,221 were unreasonable and unnecessary having due regard to the requirements of the business and not consequently deductible under r. 12 of Sch. 1 of the Excess Profits Tax Act?" Shah j. 1961 The High Court answered the question in the nega­ -. . tive and against the order of the High Court, this The Commission" 1 · £ d · h 1 d 66A(2} tl (3) of Excess P•ofits appea IS pre erre wit eave un er s. an Tax, Hyderabad of the Income- Tax Act read with s. 21 of the Excess v. Profits Tax Act. M /s. s. R. v. G. It is manifest that the assessees had not altered P.ess Company, the method according to which their accounts were Kurnool maintained. Year after year, they were paying tax Shah J. provisionally assessed by the Sales-tax Officer 011 the turnover of the previous year subject to adjustment at the close of the year of account. This system of pay­ ment of tax under provisional assessments was not adopted with a view to evade tax liability. Nor was recovery of the amounts ordered to be refunded to the assessees delayed because of any deliberate inaction on the part of the assessees. It is not found that excess tax on inflated returns was paid in anticipation of the repeal of the Excess Profits Tax Act. The assessees for reasons of convenience adopted, as they were entitled under the Madras General Sales Tax Act, a system of payment of tax on provisional assess­ ment based on the turnover of the previous year sub­ ject to final adjustment to be made at the end of the year. The assessees could opt for the system of pay­ ing sales-tax on provisional assessment, but the liability to pay tax imposed was on that account not voluntarily incurred. This system produced no direct benefit to the business and adjudged in retrospect, it undoubtedly reduced the taxable income; but if other­ wise the payment was reasonable and necessary hav­ ing regard to the requirements of the business, it was not liable to be ignored in assessing the Excess Pro­ fits Tax liability of the assessecs. By r. 12 of Sch. I of the Excess Profits Tax Act, it is provided that "in computing the profits of any chargeable accounting period, no deduction shall be allowed in respect of expenses in excess of the amount which the Excess Profits Tax Officer considers reasonable and necessary having regard to the requirements of the business; ... ". It is for the Excess Profits Tax Officer to decide whether the deductions claimed are reasonable and necessary having regard to the requirements of the ) 1 S.C.R. SUPREME COURT REPORTS 237 business. But the reasonableness and necessity of r96r the expenditure sought to be deducted in assessing Th .. Excess Profits Tax liability must be adjudged in the 0; £~;:,;"~'.;:;:;' light of commercial expediency. The payments made Tax. Hyderabad by the assessees were in discharge of obligation impos- v. ed lawfully and were necessary for the proper conduct M /s. s. R. v. G. of the business. By s. 10 of the Madras General Sales Pms Company, Kurnool Tax Act, the assessees were obliged within 15 clays from the date of service of the notice of assessment to pay tax and in default, the amount was liable to be recovered as if it were an arrear of land revenue. Again, by s. 15, if the assessees failed to submit the return as required by the provisions of the Act or the rules made thereunder or failed to pay the tax within the time prescribed, they were liable to be penalised. Payments made in satisfaction of liability which arises by virtue of the assessment made by the Sales Tax Officer cannot be called unreasonable. Payment of sales-tax as assessed being obligatory and necessary for the purpose of carrying on the business, it must in our opinion be deemed to satisfy the requirements of r. 12 of Sch. 1 of the Excess Profits Tax Act . The Excess Profits Tax Officer was, in our opinion, in error in thinking that the tax paid was in excess of the requirements of the business. We are also of the view that the Tribunal was in error in holding that by seeking to deduct only the tax properly attributa­ ble to the actual turnover during the chargeable accounting period, the Excess Profits Tax Officer was not seeking to disturb the method of accounting which was followed by the assessees and was accepted by the taxing authorities for many years. Counsel for the Commissioner submitted that the rules relating to advance provisional assessment and levy of tax framed under the Madras General Sales Tax Act, 1939 were inconsistent with the provisions of the Act and the assessees should have raised this con­ tention and have obtained a decision from the court before paying tax on provisional assessment and not having clone so, payments made cannot be regarded as either reasonable or necessary. Counsel says that in In re M. P. Kumaraswami Raja (1), the Madras High (1) [1955] 6 Sales Tax Cases 113. Shah j. '9 6' Court has declared this scheme of taxation on provi- Th C --. . sional assessment ultra vires. But the reasonableness e ,ommissioner , of Excess Profits or the necessity of payments under r. 12 Sch. 1 of the Tax, Hyderabad Excess Profits Tax Act must be ascertained in the v. light of what may be regarded as commercially M/s. s. R. v. G. expedient and not on any legalistic considerations. It Press Company, would not be expected of a businessman to start a Kurnool litigation in respect of a tax which the Legislature of Shah J. the State was competent to levy on the ground that the method devised for computing the tax liability was ultra vires. The tax was duly assessed and paid and the reasonableness and necessity must be adjudg­ ed in the light of the circumstances then prevailing and not in the light of subsequent developments. It may also be noticed that since the Madras High Court's decision in In re Kumaraswami Raja's case (1), the Madras Legislature by the Madras General Sales Tax Amendment Act VIII of 1955 retrospectively validat­ ed the levy. By virtue of this Act, assessments made provisionally and the levy of the tax were to be regarded as valid notwithstanding any initial incon­ sistency between the provisions of the Act and the Rules framed thereunder. It may also be pointed out that no such question was referred to the High Court and not even an argument appears to have been raised in the High Court on this question. We are of the view that the High Court was right in answering the question in the negative. The appeal therefore fails and is dismissed with costs. Appeal dismissed. (1) [1955] 6 Sales Tax Cases 118.