CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1658 of 1968. Appeal by special leave from the judgment and order dated September 22, 1967 of the Bombay High Court in Income-tax Reference No. 83 of 1962. B. D. Sharma, and R. N. Sachthey, for the appellant V. Rajagopal, M. M. Vakil, B. Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent. The Judgment of the Court was delivered by Hegde, J. This is an appeal by special leave. It arises from the decision of the Bombay High Court in Income-tax Reference No. 83 of 1962 on its file. That Reference was made by the Income-tax Appellate Tribunal, Bench ’B’, Bombay. The question of law which was referred for the. opinion of the High Court under s.66(1) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act) is:
"Whether on the facts and in the circumstances
-of this case the Department could disallow a
sum of Rs. 1,26,359/- a portion of the
managing agency ,commission paid by the
assessee company for the ,assessment year
1957-58 in computing the income from business
of the assessee company." The assessee is M/s. Maharashtra Sugar Mills Ltd. The concerned assessment year is 1957-58, the corresponding account year ending on 30-9-1956. , The assessee is a Limited Company. it carries on business of manufacture of sugar from.sugar cane. It owns extensive lands in which sugar cane is grown. The sugar cane grown in these lands is used by the assessee for manufacture of sugar in its factory. The finding of the Tribunal is that 16-M 1245 Sup. Cl/71 the cultivation of sugar cane and the manufacture of sugar by the assessee constitute one single and indivisible business. The assessee company is managed by managing agents. The managing agents were paid remuneration in accordance with the agreement entered into between the assessee company and the managing agents; The managing agents’s commission roughly worked out at 10 percent of the profits of the company. In the assessment year in question the managing agents were entitled to a commission of Rs. 4,86,228 /6 /-. In its assessment proceedings, the assessee claimed deduction of this sum under s.10(2)(15) as an item of expenditure laid out or expended wholly or exclusively for the purpose of its business. Out of that sum, the Income-tax Officer disallowed a sum of Rs. 1,26,359/- on the ground that the same relates to the commission of the managing agents for managing the sugar cane cultivation part of the business. In appeal, the Appellate Assistant Commissioner concurred with the view taken by the Income-tax Officer. The assessee took up the matter in second appeal to the Income-tax Appellate Tribunal. The Tribunal upheld the plea of the assessee that the entire sum is deductible under S. 10(2) (15). It also rejected the contention of the department that on the facts of the case rule 23 of the Rules framed under the Act is applicable. In the Reference -referred to earlier, the High Court agreeing with the view. taken by the Tribunal answered the question in favour of the assessee. Hence this appeal. The finding of the Tribunal that the cultivation of sugar cane as well as the manufacture of sugar constitutes one business is a finding of fact. That finding has not been challenged before us What. was urged on behalf of the department is that the assessee’s business consisted of two parts namely (1) cultivation of sugar cane and the manufacture of sugar. The former part being agricultural operation, the income therefrom is not exigible to tax and therefore any expenditure incurred in respect of that activity is not deductable. This contention proceeds on the basis that only expenditure incurred in respect of a business activity giving rise to income, profit or gains taxable under the Act can be given deduction to and not otherwise. We see no basis for this contention. To find out whether a deduction claimed is permissible under the Act or not, all that we have to do is to examine the relevant provisions of the Act. Equitable considerations are wholly out of place in construing the provisions of a taxing statute. We have to take the provisions of the statute as they stand. If the allowance claimed is permissible under the Act then the same has to be deducted from the gross profit. If it is not permissible under the Act, it has to be rejected. As mentioned earlier, it is not disputed that the cultivation of sugar cane and the manufacture of sugar constituted one single and indivisible business. Section 10(2) says that profits under S. 10(1) in respect of a business should be computed after deducting the allowances mentioned therein. One of the allowances allowed is that mentioned in s.10(2) (xv) which says that any expenditure laid out or expended wholly and exclusively for the purpose of such business shall be deducted as an allowance. The mandate of s 10 (2)(15) is plain and unambiguous. Undoubtedly the allowance claimed in this case was laid out or expended for the purpose of the business carried on by the assessee. The fact that the income arising from a part of that business is not exigible to tax under the Act is not a relevant circumstance. For the foregoing reasons we agree with the view taken by the High Court. Turning now to the decided cases, we shall first refer to the decision of the Madras High Court in S. A. S.S. Chellappa Chettiar v. Commissioner of Income-tax, Madras( 1) The facts of that case are, : The assessee was carrying on the business of money lending in Burma. For the purpose of that business he was borrowing money from others at a lower rate of interest and advancing loans to his- constituents at a higher rate. In the course of his business, he was obliged to receive agricultural lands in repayment of his debts from some of his constituents. In his assessment proceedings he claimed deduction of the interest David by him in respect of his borrowings. Part of the money borrowed by him had been advanced to constituents who, as mentioned earlier, had made over their agricultural lands to the assessee. The question arose whether the interest paid in respect of the money advanced to those constituents was deductable in computing the profits and gains of the assessee. The High Court held that he was entitled to the deduction claimed and further he was also entitled to deduction in (1) 5 I.T. P,. 97. respect of the establishment and other charges incurred by him for managing and cultivating such lands and the amount spent for obtaining conveyances of such lands. Sir H. O. C. Beasley C. J., speaking for the Court observed:
"It seems to us that the governing section in
order to decide this matter must be Sec.
10(2)(iii). Was the capital borrowed for the
purpose of the assessee’s business ? No
difficulty arises about that, for it is
,conceded that it was so borrowed. It was
also unquestionably used for the purpose of
the business because it is again conceded that
it was lent to the borrowers. Does it
continue to be so used ? It is in that respect
that it is important again to emphasise that
this case has been argued, before us on the
basis that these lands came into and were
retained in the possession of the assessee in
payment of a moneylending debt and ex-
necessitate." The test applied by the learned Chief Justice appears to us to be the correct one. We shall next take up the decision of the Bombay High Court in Salt and Industries Agencies Ltd., Bombay v. Commissioner of Income-tax, Bombay City (1). The assessee in that case was a company incorporated in Bombay. They were the managing agents of another company which was also incorporated in Bombay. The managed company had business both in British India as well as in the Indian States. The profits arising from the business activities of the managed company in the Indian States was not exigible to tax but yet the assessee claimed that a part of the commission earned by it being in respect of business carried on outside British India, the same could not be considered as an income earned in British India. That contention was rejected by the High Court. In the course of its judgment, the High Court observed:
"It is perfectly true that as far as the
parent company is concerned, the profits made
at Kandla could be said to have arisen and
accrued at Kandla, but as far as the managing
agents are concerned, their commission has
nothing whatever to do with those profits.
(1) 18 L.T.R. 58.
Their commission is only concerned with the
ultimate determination of all the workings of
the company and the finding out whether and
what profits has been earned by the company.
It cannot be said that as profits were earned
by the parent company, the commission also was
accruing or arising to the managing agents." In Commissioner of Income-tax, Bombay v. C Parakh & Co. (India) Ltd. I. The ratio of that decision bears on the question of law that we are considering. The assessee company therein was resident and ordinarily resident in India. It had its head office in Bombay. It maintained a branch at Karachi for purchasing cotton for shipment to Bombay or to export direct to other places.’ By an agreement, the managing agents of the assessee company were entitled to a remuneration of 20 percent of the annual net profits of the assessee company to ascertain which the result of the trade in all its branches had to be taken into account. The assessee apportioned the managing agency commission and debited the proportionate amount in the respective profit and loss account for the Bombay head office and the Karachi branch. In computing the Pakistan income of the assessee for the purpose of double taxation relief the Income-tax Officer deducted from the income of the Karachi branch the proportionate managing agency commission. The Appellate Assistant Commissioner confirmed that order but the Tribunal and the High Court on a reference held that the managing agency commission in its entirety should be debited to the Bombay branch. On appeal this Court held that the entire managing agency commission was liable to be debited against the Indian profits and further assessee company could not be estopped from claiming the benefit of such deduction by reason: of the fact that it erroneously allocated a part of it toward the profits earned in Karachi. In the course of; its judgment this Court observed:
"Section 10(2)(xv) of the Indian Income-tax
Act provides that in computing the profits of
a business allowance is to be made for any
expenditure laid out or expended wholly and
exclusively for the purpose of such business..
Now the respondent is carrying on
business in cotton both in India and in
Karachi. When an assessee carries on the same
business at a number of places there is for
the purpose of section 10 ,only one business
and the net profits of the business have to be
ascertained by pooling together the
profits
,earned in all the, branches and deducting
therefrom all the expenses. The fact that
some of the branches are in foreign
territories will make no difference in the
position if the assessee is as in the present
case resident and ordinarily resident within
the taxable territories. Therefore the
profits earned in India and in Karachi have to
be thrown together and the expenses including
the commission payable to the managing agents
deducted therefrom and it is the net profits
thus struck that become chargeable under the
Act. That is how the Income-tax Officer has
worked out the figures. The respondent is
therefore clearly entitled to a deduction of
the whole of the commission of Rs. 3,12,699
paid to the managing agents including the sum
of Rs. 1,23,719 against the Indian profits." Lastly we refer to the decision of this Court in Co mission of Income-tax Madras v. Indian Bank Ltd(1). Therein the respondent, a banking company, in the course of its business, invested a large sum in securities, including securities the interest on which was exempt from tax. Profits and losses on the purchase and sale of such securities were duly taken into account in computing the business income of the respondent. The% question for decision was whether the interest paid by the respondent on the amount invested in securities, whose interest was tax free, was deductable from its gross profits. This Court held that interest paid by the respondent on moneys borrowed from its various depositors had to be allowed in its entirety under S. 10(2) (iii) of the Act and there was no warrant for disallowing a proportionate part of the interest referable to money borrowed for the purchase of securities whose interest was tax-free. In the course of the Judgment Subba Rao, J. (as he then was) observed:
"In our opinion,, in construing the Act, we
must adhere closely to the language of the
Act. If there is ambiguity in the terms of a
provision, recourse must
naturally be had to well-established
principles of construction but it is not
permissible first to create an artificial
ambiguity and then try to resolve the
ambiguity by resort to some general principle. We are concerned with the interpretation of section, 10. Let us then look at the language employed. Sub-section (1) directs that an assessee be taxed in respect of the profits and gains of business carried on by him. What is the business of the assessee must first be looked at. Does he carry on one business or two businesses or along with the business carried on by him some activity which is/not a business ? If he is carrying on an activity which is not business, we must leave out of account the receipts of that activity. That is the first step. Secondly, we must look at section 10(2) and deduct all the allowances permission ale to him. In allowing a deduction which is permissible the question arises: Do we look behind the ,expenditure and see whether it has the quality of ,directly or indirectly producing taxable income ? ’The answer must be in the negative for two reasons: First, Parliament has not directed us to undertake this enquiry. There are no words in section 10(2) to that effect. On the other hand, indications are to the contrary. In Section 10(2)(xv), what Parliament requires to be ascertained is whether the expenditure has been laid out or expended wholly and exclusively for the purpose of the business. The legislature stops short at directing that it be ascertained what was the purpose of the expenditure. If the answer is that ,it is for the purpose of the business, Parliament is not concerned to find out whether the expenditure has produced or will produce taxable income. Secondly, the reason may well- be that Parliament assumes that most types of expenditure which are laid out wholly and exclusively for the purpose of business would directly or indirectly produce taxable income, and it is not worth the administrative effort involved to go further and trace the expenditure to some taxable income." On behalf of the department reliance was sought to be placed on the decision of this Court in Badridas Doga v. Commissioner of Income-tax(1). The ratio of that decision does not bear on the issue arising for decision in this case. That decision is wholly irrelevant for our present purpose It was next urged on behalf of the department that in view of rule 23 of the Rules framed, it was permissible for the Income-tax Officer to split up the commission given to the managing agents. We see no merit in this contention. Rule 23 to the extent material for our present purpose reads:
"23(1) In the case of Income which is
partially agricultural income as defined in
section 2 and partially income chargeable to
income-tax under the head "business" in
determining that part which is chargeable to
income-tax the market value of any
agricultural produce which has been raised by
the assessee or received by him as rent in
kind and which has been utilised as raw
material in such business or the sale receipts
of which are included in the accounts of the
business shall be deducted, and no further
deduction shall be made in respect of any
expenditure incurred by the assessee as a
cultivator or receiver of rent in kind." Rule 23 lays down the method of computing the taxable income of a business which partly arises from the utilisation of agricultural produce as raw material in the business. It says that in computing the taxable income, agricultural income as defined in S. 2 of the Act should be deducted from the total income for arriving at the taxable income. For determining what the agricultural income is the Income-tax Officer must determine the market value of the agricultural produce used as raw material in the business. The rule further says that "no further deduction shall be made of any expenditure incurred by the assessee as a cultivator or receiver of rent in kind." (emphasis supplied). The managing agency commission given to the assesses is not an expenditure incurred by the assessee as a cultivator or as a receiver of the rent in kind. The last part of subrule (1) of Rule 23 merely stipulates that the expenditure incurred by the assessee for his agricultural operation or incurred by him as receiver of rent in kind is not to be deducted while arriving at the taxable income. Section 2(1) of the Act defines agricultural income. That section reads: "agricultural income" means-
(a) any rent or revenue derived from land
which is used for agricultural purposes, and
is either assessed to land-revenue in the
taxable territories or subject to a local rate
assessed and collected by officers of the
Government as such;
(b) any income derived from such land by-
(i) agricultural or
(ii) the performance by a cultivator or
receiver of rent in kind of any process
ordinarily employed by a. cultivator or
receiver of rent-in-kind to render the produce
raised or received by him fit to be taken to
market, or
(iii) the sale by a cultivator or receiver of
rent-in-kind of the produce raised or received
by him, in respect of which no process has
been performed other than a process of the
nature described in sub-clause (ii).
(c) any income derived from any building
owned and occupied by the receiver of the rent
or revenue of any such land, or occupied by
the cultivator, or the receiver of rent in
kind, of any land with respect to , which, or
the produce of which any operation mentioned
in sub-clauses (ii) and (iii) of claus e (b) is
carried on:
Provided that the building is on’ or in the
immediate vicinity of the land, and is a
building which the receiver of the rent or
revenue or the cultivator or the receiver of
the rent-in-kind by reason of his connection
with the land, requires as a dwelling house,
or as a storehouse, or other out-building," If rule 23 is read along with S. 2(1), it is clear that Preference to, expenditure incurred by the assessee as a -cultivator applies to the process ordinarily employed by,a cultivator in raising the crops and all other incidental and supplementary activities upto the stage of sale of the produce.’ That rule has nothing to do with disbursements such as payment of managing agency commission. In the result this appeal fails and the same is dismissed with costs. V.P.S. Appeal dismissed.