PETITIONER: B.D. BHARUCHA,BOMBAY Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX, CENTRAL BOMBAY DATE OF JUDGMENT: 21/03/1967 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. SIKRI, S.M. CITATION: 1967 AIR 1505 1967 SCR (3) 238 ACT: Income-tax Act (11 of 1922), s. 10(2)(xi)-capital or revenue loss-Nature, how determined. HEADNOTE: The appellant, who was carrying on the business of financing film producers and distributors, had advanced a sum of Rs. 1,00,000 to a firm of film distributors. Clause 3 of the agreement between the parties provided that the appellant was not entitled to any interest but that he was to share with the distributors their profit and loss; and cl. 7 provided that in case the picture was not released within the stipulated time, the distributors would return to the appellant all the moneys advanced by him together with interest at 9% per annum. There was delay in releasing the picture and a dispute arose between the appellant and the distributors, which was settled. The appellant found that a sum of Rs. 80,759 was irrecoverable. He accordingly wrote it off as a bad debt and claimed it as a revenue loss which should be deducted under s. 10(2)(xi) of the Income-tax Act, 1922. The department, the Appellate Tribunal, and the High Court on reference, held against the appellant, on the basis of cl. 3 of the agreement, that the loss suffered by the appellant was a capital loss. In appeal to this Court, HELD : Since all payments reduce capital one is apt to consider a loss as a capital loss. But losses in the running of a business cannot be said to be of capital. To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business. In the present case, the debt was in respect of and incidental to the business of the appellant in the relevant accounting year, and the accounts of his business were kept on mercantile basis. If cls. 3 and 7 of the agreement are read together, the transaction would be a money-lending transaction or a transaction in the nature of a financial deal in the course of the appellant's business, resulting in a loan repayable with interest. Therefore, the loss suffered was a revenue loss and the appellant was entitled to claim the deduction of the amount as a bad debt under s. 10(2) (xi) of the Act. [241H; 242E-F] Reid's Brewery Co. Ltd. v. Male, 3 T.C. 279, applied. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1230 of
1966.
Appeal by special leave from the judgment and order dated
August 27, 1962 of the Bombay High Court in Income-tax Re-
ference No. 18 of 1961.
S. T. Desai, M. N. Shroff for 1. N. Shroff, for the
appellant.
R. M. Hazarnavis, Gopal Singh, S. P. Nayyar for R. N.
Sachthey, for the respondent.
239
The Judgment of the Court was delivered by
Ramaswami J. This appeal is brought, by special leave, from
the judgment of the High Court of Bombay dated August 27,
1962 in Income Tax Reference No. 18 of 1961.
The appellant is an individual having income from House
Property, Government Securities, Cinema Exhibition and
financing film producers and distributors. During the
period from March 3, 1952 to November 5, 1952 the appellant
advanced a sum of Rs. 40,000/- to a firm of film
distributors known as Tarachand Pictures. The appellant
thereafter entered into an agreement dated January 5, 1953
with Tarachand Pictures under which the appellant advanced a
further sum of Rs. 60,000/- in respect of the distribution,
exploitation and exhibition of a picture called “Shabab”.
According to cl. 2 of the agreement the distributors were to
pay a lumpsum of Rs. 1,750/- by way of interest on the
initial advance of Rs. 40,000/-. Clause 3 of the agreement
read as follows :-
“No interest will run henceforth on this sum
of Rs. 40,000/- as also on the advances to be
made as provided hereinabove but in lieu of
interest it is agreed that the Distributors
will share with the Financier profit and loss
of the Distribution, Exploitation and
Exhibition of the picture SHABAB in the Bombay
Circuit, two-third going to the Financier and
one-third to the Distributors.”
Clauses 4 and 5 were to the following effect
“4. The Distributors shall on or before the
15th of every month submit to the Financier a
Statement of Account of the business done
during the previous month in respect of the
picture ‘SHABAB’ in the territories of Bombay
Circuit.”
“5. The Distributors shall keep the proper
accounts of the business of the picture
‘SHABAB’ and the same as well as all
documents, reports and contracts will be
available to the Financier or his agent for
inspection.”
Clause 7 read as follows:-
“In case the picture is not released in Bombay
within 15 months from the date hereof the
Distributors shall be bound to immediately
return all the moneys so far advanced to the
Distributors by the Financier. In that event
the Distributors shall be bound to return all
the moneys together with interest thereon @ 9%
per annum.”
Clause 8 stated:
“In case of any breach being committed by the
Dis-
240
tributors of any of the terms herein provided
this agreement shall at once terminate and the
moneys paid by the Financier shall be at once
repaid by the Distributors to the
Financier with interest @ 9% per annum.”
It appears that the distributors were not in a position to
exhibit the film in Bombay within the stipulated time. When
the film was ultimately released for exhibition it proved to
be unsuccessful. The matter was taken to the City Civil
Court and ultimately a consent decree was obtained in Suit
No. 2061 of 1954 in the Bombay City Civil Court. In the end
the appellant found that there was a balance of Rs. 80,759/-
which was irrecoverable and he accordingly wrote it off as a
bad debt on December 31, 1955 in the ledger account. For
the assessment year 1956-57, the corresponding previous year
being the calendar year 1955, the appellant claimed a loss
of Rs. 80,759/- which he had written off as bad debt, under
s. 10(2)(xi) of the Income-tax Act. By his assessment order
dated July 31, 1957, the Income-tax Officer disallowed the
claim on the ground that the moneys advanced by the
appellant under the agreement could not be regarded as a
dealing in the course of his financing business, but the
true nature of the transaction, as evidenced by the
agreement, was a venture in the nature of a trade. The
Income-tax Officer accordingly held that the loss was a
capital loss and it could not be allowed as a bad debt under
s. 10(2)(xi) of the Income-tax Act. The appellant took the
matter in appeal to the Appellate Assistant Commissioner of
Income-tax who dismissed the appeal. The appellant
preferred a second appeal before the Income-tax Appellate
Tribunal which by its order dated February 19, 1960 rejected
the appeal, holding that the loss of Rs. 80,759/- was a
capital loss and not a loss of stock-in-trade. The Tribunal
took the view that the transaction was not a joint venture
with the distributors or any partnership business and that
it was also not a mere financing deal or a part of the
money-lending activities of the appellant. According to the
Appellate Tribunal, the true nature of the transaction was
an investment of the capital for a return in the shape of
share of profits, and the loss suffered by the appellant was
therefore a capital loss and not a revenue loss. As
required by the appellant, the Tribunal stated a case to the
High Court under s. 66(1) of the Income-tax Act on the
following question of law:-
“Whether the aforesaid loss of Rs. 80,759/- is deductible
under any of the provisions of the Act ?”
By its judgment dated August 27, 1962, the High Court
answered the Reference in the negative and against the
appellant.
On behalf of the respondent it was submitted that the High
Court was right in taking the view that the appellant had
advanced
241
a sum of Rs. 1,00,000/- not with a view to earn interest
thereon but with a view to making an investment in the
business of Tarachand Pictures and get a return on the said
investment by way of a share of profits in the said
business. It was contended that the money was not lent for
any definite term and no rate of .interest had been fixed
under cl. 3. The argument was also, stressed that cl. 3 of
the agreement stipulated that the appellant was to share
with the distributors not only the profit but also the loss
of the business, and in the case of no money-lending
transaction is there a covenant between the parties that the
money-lender will share the loss of the business for which
the money is lent. In other words, it was argued that no
money-lending transaction can have the attribute of the
money-lender sharing the risk of the loss of the business
for which the money is lent, nor could it be a feature of
any purely financial deal. We are unable to accept the
argument of the respondent that the transaction between the
parties under the agreement dated January 5, 1953 was not a
money-lending transaction or a transaction in the nature of
a financial deal in the course of the appellant’s business.
If cl. 3 of the agreement is taken in isolation there may be
some force in the contention of the respondent that the term
under which the appellant undertook to share the loss took
the transaction out of the category of a money-lending
transaction and the loss suffered by the appellant was
therefore a capital loss. In the present case, however, cl.
3 of the agreement dated January 5, 1953 cannot be read in
isolation but it must be construed in the context of cl. 7
which provides that in case the picture was not released in
Bombay within 5 months from the date of the agreement, the
distributors will return all the moneys so far advanced to
them by the appellant together with interest thereon at 9%
per annum. It is the admitted position in the present case
that the picture was not released by ,the distributors till
the stipulated date, namely, April 4, 1954 but it was
released on May 28, 1954 and cl. 7 of the agreement there-
fore came into operation. The result therefore is that on
and from April 4, 1954 there was a contract of loan between
the parties in terms of cl. 7 of the agreement and the
principal amount became repayable from that date to the
appellant with interest thereon at 9% per annum. It follows
therefore that the appellant is entitled to claim the amount
of Rs. 80,759/- as a bad debt under s. 10(2) (xi) of the
Income-tax Act and the loss suffered by the appellant was
not a loss of capital bat a revenue loss.
To find out whether an expenditure is on the capital account
or on revenue account, one must consider the expenditure in
relation to the business. Since all payments reduce capital
in the ultimate analysis, one is apt to consider a loss as
amounting to a loss of capital. But it is not true of all
losses, because losses in the running of the business cannot
be said to be of capital. The distinc-
242
tion is brought out for example, in Reid’s Brewery Co. Ltd.
v. Male(1). In that case, the brewery company carried on,
in addition to the business of a brewery, a business of
bankers and moneylenders making loans and advances to their
customers. This helped the customers in pushing sales of
the product of the brewery company. Certain sums bad to be
written off and the amount was held to be deductible. In
the course of his judgment Pollock B. said :
“Of course, if it be capital invested, then it
comes within the express provision of the
Income-tax Act, that no deduction is to be
made on that account.”
-but held that :
business can doubt that this is not capital
invested. What it is is this. It is capital
used by the Appellants but used only in the
sense that all money which is laid out by
persons who are traders, whether it be in the
purchase of goods be they traders alone,
whether it be in the purchase of raw material
be they manufacturers, or in the case of
money-lenders, be they pawnbrokers or money-
lenders, whether it be money lent in the
course of their trade, it is used and it comes
out of capital, but it is not an investment
in the ordinary sense of the word.”
In the present case, the conditions for the grant of the
allowance -under s. 10(2)(xi) of the Income-tax Act are
satisfied. In the first place, the debt is in respect of
the business which is carried on by the appellant in the
relevant accounting year and accounts of the business are
admittedly kept on mercantile basis. In the second place,
the debt is in respect of and incidental to the business ,of
the appellant. It has also been found that the debt had
become irrecoverable in the relevant accounting year and the
amount had been actually written off as irrecoverable in the
books of the appellant.
For these reasons, we hold that the judgment of the Bombay
High Court dated August 27, 1962 should be set aside and the
question referred to the High Court must be answered in the
affirmative and in favour of the appellant. We accordingly
allow this appeal with costs here and in the High Court.
V.P.S. Appeal
allowed.
(1) 3 Tax Cas. 279.
243