PETITIONER: RAMACHANDER SHIV NARAYAN Vs. RESPONDENT: COMMISSIONER OF INCOME TAX,ANDHRA PRADESH, HYDERABAD DATE OF JUDGMENT04/11/1977 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. DESAI, D.A. CITATION: 1978 AIR 278 ACT: Allowable loss-Loss of property or money by theft or dacoity, whether a trading loss and if permissible deduction in computation of his net income-Income-Tax Act, 1922, sec. 10(2)(xv)=s. 37 of Income Tax Act, 1961. HEADNOTE: The appellant, assessee is a registered firm carrying on business in gold, silver and gunnies at Rajahmundry. It also derives income from investment in Government securities. The assessee, during the assessment year 1964- 65 corresponding to accounting year ended on October 16, 1963 returned. a loss of Rs. 5008/- from the business. The said figure was arrived at after claiming a loss of Rs. 30,000/` on account of theft. The assessee had borrowed a sum of Rs. 50,0001- from some creditor The money was brought in cash by its employee. Out of the said sum of Rs. 50,0001- which was meant for purchase of Government securities, a sum of Rs. 30,000/- was lost by theft committed by a stranger. The assessee, therefore, claimed the sum of Rs. 30,000/- lost by theft as a permissible deduction in computation of his net income on the ground that it was a trading loss. The Income Tax Officer rejected the claim treating, the loss as being either of idle money or a capital loss and holding that it was not incidental to the business of the assessee. An appeal before the Income Tax Appellate Commissioner failed; but in further appeal the Tribunal held that the loss was allowable being incidental to the carrying on the business of the assessee. On a reference made at the instance of the Commissioner of Income Tax, the High Court of Andhra Pradesh answered it in favour of Revenue and against the assessee. Allowing the appeal by special leave. the Court. HELD : (1) The line of distinction as to whether a particular loss is a trading loss or a capital loss is very subtle and thin. In terms no specific. provision is to be found in either of the two Acts (Income Tax Act of 1922 or 1961) for allowing deduction of a trading loss of cash by theft. A trading loss not being a capital loss has got to be taken into account while arriving at the true figures of the assessee's income in the commercial sense. [803 in 804 C] (2)The list of permissible deduction in either of the two Acts is not exhaustive. The relevant words, in s. 10(2)(xv) of the 1922 Act corresponding to s. 37 of the 1961 Act namely, "any expenditure.......... not being in the nature of capital expenditure, or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business...... has not been able to take within its ambit loss of property or money by theft or dacoity as it is not an expenditure which has an element of volition, but the forced loss. Such a loss is a trading loss in the commercial sense and has got to be takeninto account for ascertainment of true taxable profit,,,,. [804 C-E] BadridasDaga v. Commissioner of Income-Tax, 34 I.T.R. 10 and Commissioner ofIncome-tax U.P. v. Nainital Bank Ltd. 55 I.T.R. 707, followed. Motipur Sugar Factory Ltd. v. Commissioner of Income-Tax, Bihar & Orrissa 28 I.T.R. 128, approved. Charles Moore & Co. (W.A.) Ply. Ltd. v. Federal Commissioner of Taxation (1956-57) Commonwealth Law Reports 344 and Gold Bank Services Ltd. v. Commissioner of Inland Revenue (1961) New Zealand Law Reports, 467, quoted with approval. 802 (3)If there is a direct and proximate nexus between the business operation, and the loss or it is incidental to it, then the loss is deductible, as without the business operation and doing all that is incidental to it, no profit can be earned. It is in that sense that from a commercial standard such a loss is considered to be a trading one and becomes deductible from the total income although, in terms neither in the 1922 Act nor in the 1961 Act there is a provision like section 51(1) of the Australian Act. [806 G- H] Basantlal Sanwar Prasad v. Commissioner of Income-Tax 67 I.T.R. 380 (Patna); U.P. Vanaspati Agency v. Commissioner of Income-tax 68 I.T.R. 120; Commissioner of Income Tax U.P. v. Sarya Sugar Mills (P) Ltd. 70 I.T.R. 109; Commissioner of Income-Tax, Madras v. K. T. M. S. Mahmood 74 I.T.R. 100; Commr. of Income-Tax, M.P. v. Ganesh Rice Mill 77 I.T.R. 889 and Chhotulal Ajitsingh v. Commissioner of Income-Tax, Rajasthan 89, I.T.R. 178, referred to, Bansidhar Onkarmal v. Commissioner of Income-Tax, Bihar and Orissa 17 I.T.R. 247 '(Orissa ); M/s. Ram Gopal Ram Sarup v. Commissioner of Income-tax, Punjab 47 1.T.R. 611; Commissioner of Income Tax, Andhra Pradesh v. Chakka Narayana 43 I.T.R. 249; Madurai Rajeshwar v. Commissioner of Income-tax, Andhra Pradesh, 51 I.T.R. 213 and S. P. S. Ramaswami Chettiar & Or.s. v. The Commissioner of Income- Tax, Madras I.L.R. 53, Madras 904, disapproved. A direct and proximate connection and nexus must be between the business operation and the loss. A businessman has to keep money either when be gets it as sale proceeds of the stock-in-trade or for disbursement to meet the business expenses or for purchasing stock-in-trade and if he loses such money in the ordinary course of business such is a deductible trading loss. It is immaterial whether the money is a part of the stock-in-trade such as a banking company or a money lender or is directly connected with the other business. The risk is inherent in the carrying on of the business and is either directly connected with it or incidental to it. In the instant case, the High Court took an erroneous view in giving an answer against the assessee. The loss was, however, directly connected with business operation and was incidental to the carrying on of the business of purchase of Government securities to earn profits. In such a situation it was a part of the trading loss and deductible as such in arriving at the true profit-, of the assessee. [808 B-C, E- G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1611 of
1972,
Appeal by Special Leave from the Judgment and Order dated 4-
3 1974 of the Andhra Pradesh High Court in Case Reference
No. 28 of 1969.
Jitendra Sharma for the Appellant.
K. C. Dua and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA J.–This is an assesee’s appeal by special leave
from the decision of the Andhra Pradesh High Court in a
reference made by the Income Tax Appellate Tribunal,
Hyderabad Bench under section 256(1) of the Income Tax Act,
1961-hereinafter referred to as the 1961 Act. The question
referred for the opinion of the High Court at the instance
of the Revenue was in the following terms
“Whether, on the facts and in the
circumstances of the case, the assessee was
entitled to the allowance of the loss of Rs.
30,000 ?”
803
The facts of the case as found by the Tribunal are in a
very narrow (,compass. Their correctness was neither
challenged nor could it be ,challenged in the High Court on
any legal grounds, such as, that the findings were vitiated
as being perverse, wholly unreasonable or unsupported by any
evidence. No reference to challenge the correctness of the
facts was either asked for or made. The High Court has.
therefore, rightly proceeded to answer the question on the
facts found, by the Tribunal.
The assessee is a registered firm carrying on business in
gold, silver, and gunnies at Rajahmundry. It also derives
income from investment in Government securities. The
assessment year in question is 1964-65. The corresponding
accounting year ended on October 16, 1963. The assessee had
sold some Government securities and bonds in the years both
preceding and succeeding the accounting year concerned in
the present appeal. Income-tax was levied on such income
also. For the assessment year 1964-65 it returned a loss of
Rs. 5,008/- from the business. The said figure was arrived
at after claiming a loss of Rs. 30,000/on account of theft
committed by some stranger during the corresponding
accounting period. A sum of Rs. 50,0001- for the purpose of
purchasing Government securities was brought in cash to
Rajahmundry by its employee. The money was handed over to
its cashier. When the cashier turned his back to take out
some books, a stranger suddenly arrived at the place of
assessee’s business and committed the theft of 30,000/-. In
spite of the lodging of a report with the police, no amount
could be, recovered. The assessee claimed the sum of Rs.
30,000/lost by theft as a permissible deduction in
computation of his net income on the ground that it was a
trading loss. The Income Tax Officer rejected the claim
treating the loss as being either of idle money or a capital
loss. According to him it was not incidental to the
business of the assessee. Its appeal before the Income
Tax Appellate Commissioner failed butthe assessee
succeeded in the further appeal taken to the Tribunal. The
loss was allowed on the ground that it was incidental to the
carrying on of the business of the assessee. The
Commissioner of Income Tax asked for a reference which was
made on the question ,of law above mentioned.
Many cases of this kind involving almost identical questions
on facts somewhat similar or varying have come up for
consideration before the Courts in England and varying other
countries and the various High Courts in India. The line of
distinction as to whether a particular loss is a trading
loss or a capital loss has sometimes been very subtle and
thin resulting in expression of different opinions by the
different High Courts almost on identical or similar facts.
The leading decision of this Court is. in the case of
Badridas Daga v. Commissioner of Income Tax(1). The
principle decided in that case was reiterated with greater
force, if we may say so with respect, in another decision of
this Court in Commissioner of income-Tax, U.P. v. Nainital
Bank Ltd(2) After the said two decisions most of the- High
Courts have applied, as they were bound to, the principles
enunciated in them in favour of the assessees under similar
circumstances and facts. But we shall presently show that
the Andhra
(1) 34 I.T.R. 10 (2) 55 I.T.R. 707
804
Pradesh High Court persisted and has done so even in the
judgment under appeal in taking ,rather, a narrow view of
the matter and not correctly applying the ratio decidendi of
Badridas Daga’s and Nainital Bank’s cases,
Under section 10(1) of the Income Tax Act, 1922-hereinafter
called the 1922 Act, the assesses was required to pay tax in
respect of the profits or gains of any business carried on
by him-. The corresponding provision in the 1961 Act is to
be found in section 28. Sub-section (2) of section 10 of
the 1922 Act prescribed the method for computation of
profits or gains after making the allowances enumerated in
the various clauses of that sub-section. The corresponding
section 29 of the 1961 Act says : “The income referred to in
section 28 shall be computed in accordance with the
provisions contained in sections 30 to 43-A.” In terms no
specific provision is to be found in either of the two Acts
for allowing deduction of a trading loss of the kind we are
concerned with in this case. But it has been
uninformally laid down that a trading loss not being a
capital loss has got to be taken into account while arriving
at the true figures of the assessee’s income in the
commercial sense. The list of permissible deductions in
either of the Acts is not exhaustive. We may just refer to
section 10(2) (xv) of the 1922 Act corresponding to section
37 of the 1961 Act. The relevant words of the said
provision namely “any expenditure not being in the nature of
capital expenditure or personal expenses of the assessee
laid out or expended wholly and exclusively for the purpose
of such business……… I occurring in either of the two
provisions has not been able to take within its ambit loss
of property or money by theft or dacoity as it is not an
expenditure which has an element of volition, but a forced
loss. The cases have laid down that such a loss is a
trading loss in the commercial sense and has got to be taken
into account for ascertainment of true taxable profits.
Now we proceed to refer to some decisions of the High Courts
and this Court. We may start with a Patna decision reported
in Motipur Sugar Factory, Ltd. v. Commissioner of Income-
Tax, Bihar and Orissa(1). The assesses company carrying on
business in the manufacture of sugar and molasses out of
sugarcane deputed an employee, in compliance with the
statutory rules, with cash for distribution to sugarcane
cultivators at the spot of purchase. The cash was robbed on
the way. The High Court took the view that the loss was one
arising out of the business of the assessee and sprang from
the statutory necessity of ,sending money to various
purchasing centres for distribution and hence was deductible
from the assessee’s taxable income. The stress by the High
Court that sending of money to various purchasing centres
sprang from the statutory necessity was not of much
consequence. The method of business operation springing
from custom, trade usage or practice or otherwisemay make
the assessee send cash to or bring cash from other places. The
Patna, decision has been approved in the decisions of this
Courtin Badridas Daga’s and Nainital Banks cases.
(1)28 I.T.R. 128.
805
In Badridas Daga’s case an agent of the assessee withdrew
from the firms bank account large sums of money and applied
them in satisfaction of his personal debts incurred in
speculative transactions. A part of it was recovered from
him but the balance of Rs. 2,00,000/and odd was written off
at the end of the accounting year as irrecoverable. The
question for consideration was whether the amount embezzled
by the assessee’s agent was to be deducted in computation of
the assessees profits. Venkatarama Tiyar J. delivering the
judgment of the Court has said at page 15 of 34 I.T.R.
“The result is that when a claim is made for a
deduction for which there is no specific
provision in section 10(2), whether it is
admissible or not will depend on whether,
having regard to accepted commercial practice
and trading principles, it can be said to
arise out of the carrying on of the business
and to be incidental to it. If that is
established, then the deduction must be
allowed, provided of course there is no
prohibition against it, express or
implied……..
The learned Judge emphasised at page 1 6
that the loss for which a deduction could be made under
section 10(1) must be one that springs directly from the
carrying on of the business and is incidental to it and not
any loss sustained by the assessee, even if it has some
connection with his business.” An example of theft committed
by a thief by breaking overnight the premises of the money-
lender and running with the funds was given to show in
Daga’s case that it would not be an allowable loss. But the
example was not considered to be quite appellate in the case
of Nainital Bank for taking the opposite view. The majority
opinion of a special Bench of the Madras High Court in S. P.
S. Ramaswami Chettiar & Ors. v. The Commissioner of Income-
Tax, Madras,(1) were merely referred in Badridas Daga’s case
but was disapproved in Nainital Bank’s case. The facts
of the latter case were that the Bank in the usual course of
itsbusiness had to keep cash money in various safes in its
various branches. At one of its branches the cash amount
of Rs. 1,00,000/ and odd was stolen in a dacoity committed
at about 7.00 p.m. Subba Rao J., as he then was, dismissing
the department’s appeal held the loss to be an admissible
deduction chiefly on the ground that it formed part of the
stock-in-trade of a banking company. A large number of
authorities were considered including the one in Badridas
Dagds case. A distinction drawn in some of the cases
between misappropriation of the assessee’s money by a’
servant or loss to him by reason of cash being robbed from
its servant was held to be of no consequence. In that
regard referring to the decision of the Madras High Court in
Ramaswami Chettiar’s case it was held that the correctness
of the said decision was shaken when this Court in Badridas
Daga’s Case approved the Patna view in Motipur Sugar
Factory’s case. The minority view expressed by
Anantakrishna Ayyar J. was preferred. The decision of the
High Court of Australia in Charles Moore & Co. (W.A.) Pty
Ltd. v. Federal Commissioner of Taxation(2) was heavily
relied upon.
(1) I.L.R. 53, Mad. 904.
(2) (1955-57) 95 Commonwealth Law Reports, 344.
806
Reference was also made to the decision of a learned single
Judge of the New Zealand Supreme Court in the case of Gold
Bank Services Limited v. Commissioner of Inland Revenu (1)
which had followed the Australian decision in Charles
Moore’s case. The case of Nainital Bank was held to
be stronger than the two foreign decisions aforesaid. We
may however, point out the slight distinction between the
Income-tax law of Australia and New Zealand and that of
India, although basically in principle there
is hardly any difference. In the Australian case the
v. Commissioner of Inland Revenue() which had followed the
Austra v. Commissioner of Inland Revenue() which had
followed the Austra v. Commissioner of Inland Revenue()
which had followed the Austra statutory language ofsection
51(1) of the Income Tax and Social Services Contribution
assessment Act 1936-1952 fell for consideration. The
relevant words of the,said provision were : “losses
necessarily incurred in gaining or producing the assessable
income.” In our Acts there is no such express provision
because the corresponding provision used the term
‘expenditure’ and not losses. But the principle decided by
the full Court of the, High Court of Australia (the highest
Court in the land) is aptly applicable in India. The
argument for the Commissioner that before the money was
stolen it had come home to the tax-payer so as to form part
of the capital resources was rejected at page 351 on the
ground
“…… we are here dealing with a loss
incurred in an operation of business concerned
with the regular inflow of revenue, not with a
loss of or concerning part of the “profit
yielding subject,” the phrase in which Lord
Blackburn in United Collieries Ltd. v. Inland
Revenue Commissioners-(1930) S.C. 215. at p.
220; (1929) 12 Tax as. 1248, at p. 1254
summarised the characteristics of a business
undertaking or enterprise considered as an
affair of a capital nature.”
The language of the New Zealand statute was more or less the
same except that it contained the adverb “exclusively”.
Haslam J., therefore, stated at page 470 of (1961) New
Zealand Law Reports :-
“While our section contains the adverb ”
exclusively”, which is absent from its
Austrailan counterpart, I do not think that on
the instant facts this difference in wording
can affect the conclusion. In my opinion, the
loss was exclusively incurred in the manner
described, since the risk of precisely such an
event was inherent in the course of the
production of assessable income.”
The principle applicable in India is more or less the same.
If there is a direct and proximate nexus between the
business operation and the loss or it is incidental to it,
then the loss is deductible, as, without the business
operation and doing all that is incidental to it, no profit
can be earned. It is in that sense that from a commercial
standard such a loss is considered to be a trading one and
becomes deductible from the total income, although, in terms
neither in the 1922 Act nor in the 1961 Act there is a
provision like section 51 (1) of the Australian Act.
There is a veritable roll-call of cases of the various High
Courts in India, mostly under similar circumstances, taking
the view on the lines of Daga’s and Nainital Bank’s cases.
We may just refer to some of
(1) (1961) New Zealand Law Reports, 467.
807
them In Basentlal Sanwar Prasad v. Commissioner of Income-
Tax(1) the loss of cash in a burglary committed at night in
a wholesale cloth shop was held to be allowable. In U.P.
Vanaspati Agency v. Commissioner of Income-Tax(2)
(Allahabad) money entrusted to an employee for being
deposited in the Bank but lost in the way by robbery was
held to be, deductible. To the same effect is the view
expressed by Allahabad High Court in the case of
Commissioner of Income-Tax, U.P. v. Sarya Sugar Mills (P)
Ltd.(3); by the Madras High Court in Commissioner of Income-
Tax, Madras v. K. T. M. S. Mahmood(4); by the Madhya Pradesh
High Court in Commissioner of Income-Tax M.P. v. Ganesh Rice
Mills(5) and the Rajasthan High Court in Chottulal Ajitsing
v. Commissioner of Income_Tax, Rajasthan.(6) The contrary
view expressed in the case of Bansidhar Onkermal v.
Commissioner of Income-Tax, Bihar and Orissa(7) and in the
Madras full Bench ,case of Chettiar’s is no longer good law.
The ratio of Daga’s case does not seem to have been
correctly applied by the Punjab High Court in Mesars. Ram
Gopal Ram Sarup v. Commissioner of Income-Tax, Punjab(8).
Now we proceed to point out the persistently wrong
application of the law laid down by this Court by the Andhra
Pradesh High Court in two earlier decisions followed in the
decision under appeal also. They are : Commissioner of
Income-Tax, Andhra Pradesh v. Chakka Narayana(9) and Maduri
Rajeshwar v. Commissioner of Income-Tax, Andhra Pradesh
(10). In Chakka Narayana’s case (supra) the assessee who
was a dealer in cloth and government securities encashed
government securities worth about Rs. 20,000. He went to
the Madras Railway Station for taking the cash to his place
of business but lost the money on account of theft
committed. The High Court referred to Badridas Daga’s case
but yet distinguished it and preferred to follow the
majority decision of the Full Bench of the Madras High Court
in Ramaswami Chettiar’s case which, as we have already
pointed out, was not approved by this Court in Nainital
Bank’s case. the High Court enunciated the law correctly,
but committed an error in applying the same to the facts of
that case when it said : “It could not be posted that it was
absolutely necessary for the assessee to cash the cheque
issued and to carry the money on his person. It is only
when it could be posited that it was part of his business to
take money with him that it could be said that the loss was
incidental to his business.”We do not approve of this
distinction. Similarly the Andhra PradeshHigh
Court took a narrow view in Maduri Rajeshwar’s case also.
There a stranger came to the assessee’s shop during business
hours and, when the assessee had gone into another room to
talk on the telephone, the stranger removed the cash box and
disappeared. Chandra Reddy C.J. who had delivered the
leading judgment in the earlier case as also in this case,
if we may point out with respect, committed the same mistake
when he said at page 216 :
(1) 67 I.T. R 380 (Patna). (6) 89 I.T.R. 178
(2) 68. I.T.R, 120. (7) 17 I.T.R. 247 (Orissa).
(3) 70 I.T R. 109. (8) 47 I.T.R. 61 1.
(4) 74 T.T R. 100. (9) 43 I.T.R. 249.
(5) 77 I.T.R. 889. (10) 51 I.T.R. 213.
808
“It cannot be postulated that the loss
sustained by the assesee resulting from the
theft committed by the stranger- springs
directly from his business or is incidental to
the carrying on of it. The only connection
that could be established in this- case is
that at the time theft was committed money was
in the business premises and it was during
business hours. There is no other connection
between the theft of the money and the busi-
ness of the assessee.”
It is to be remembered that the direct and proximate
connection and nexus must be between the business operation
and the loss. It goes without saying that a businessman has
to keep money either when he gets it as sale-proceeds of the
stock-in-trade, or for disbursement to meet the business
expenses or for purchasing stock-in-trade and if he loses
such money in the ordinary course of business, the loss is a
deductible trading loss. It is immaterial whether the money
is a part of the stock-intrade, such as,, of a banking
company or a money-lender, or is directly connected with the
other business operations. The risk is inherent in the
carrying on of the business and is either directly connected
with it or incidental to it.
In the judgment under appeal the High Court, to our mind,
has taken the same erroneous view and given the answer
against the assessee inspite of the, fact that it has
noticed a catena of cases of the various High Courts already
alluded to by us also. Distinguishing the preponderance of
the view expressed in the various decisions in favour of the
assessee, the High Court, in our opinion, wrongly chose to
stick to its earlier narrow view.
In the light of the conspectus of the law, as discussed
above, let us see whether on the facts found by the
Tribunal: the loss of Rs. 30,000/- was allowable as a
trading loss. The assessee had borrowed a sum of, Rs.
50,000/- from some creditor. The money was brought in cash
to Rajahmundry by its employee. Such a mode of business
operation is very common and well-known. Out of the said
sum of Rs. 50,0001which was meant for purchase of Government
securities a sum of Rs. 30,000/- was lost by theft. It is
immaterial whether Government securities were purchased by
the remaining sum of Rs. 20,000/- or not. The loss was,
however, directly connected with the business operation and
was incidental to the carrying on of the business of
purchase of Government securities to earn profit. In such a
situation it was a part of the trading loss and deductible
as such in arriving at the true profits of the assessee.
In the result we allow the appeal,, set aside the, decision
of the High Court and answer the question in favour of the
assessee and against the Commissioner of Income-Tax. The
latter must pay to the appellant the costs in this appeal.
S.R. Appeal allowed.
809