{"id":105338,"date":"1977-11-04T00:00:00","date_gmt":"1977-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramachander-shiv-narayan-vs-commissioner-of-income-on-4-november-1977"},"modified":"2017-09-14T21:52:55","modified_gmt":"2017-09-14T16:22:55","slug":"ramachander-shiv-narayan-vs-commissioner-of-income-on-4-november-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramachander-shiv-narayan-vs-commissioner-of-income-on-4-november-1977","title":{"rendered":"Ramachander Shiv Narayan vs Commissioner Of Income … on 4 November, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramachander Shiv Narayan vs Commissioner Of Income … on 4 November, 1977<\/div>\n
Equivalent citations: 1978 AIR 278<\/div>\n
Author: N Untwalia<\/div>\n
Bench: Untwalia, N.L.<\/div>\n
           PETITIONER:\nRAMACHANDER SHIV NARAYAN\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX,ANDHRA PRADESH, HYDERABAD\n\nDATE OF JUDGMENT04\/11\/1977\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nDESAI, D.A.\n\nCITATION:\n 1978 AIR  278\n\n\nACT:\nAllowable  loss-Loss  of  property  or\tmoney  by  theft  or\ndacoity, whether a trading loss and if permissible deduction\nin computation of his net income-Income-Tax Act, 1922,\tsec.\n10(2)(xv)=s. 37 of Income Tax Act, 1961.\n\n\n\nHEADNOTE:\nThe  appellant,\t assessee is a registered firm\tcarrying  on\nbusiness  in  gold, silver and gunnies at  Rajahmundry.\t  It\nalso   derives\t income\t from\tinvestment   in\t  Government\nsecurities.  The assessee, during the assessment year  1964-\n65  corresponding  to accounting year ended on\tOctober\t 16,\n1963 returned. a loss of Rs. 5008\/- from the business.\t The\nsaid  figure  was arrived at after claiming a  loss  of\t Rs.\n30,000\/`  on account of theft.\tThe assessee had borrowed  a\nsum of Rs. 50,0001- from some creditor The money was brought\nin  cash  by  its  employee.  Out of the  said\tsum  of\t Rs.\n50,0001-   which  was  meant  for  purchase  of\t  Government\nsecurities,  a\tsum  of\t Rs.  30,000\/-\twas  lost  by  theft\ncommitted  by a stranger.  The assessee, therefore,  claimed\nthe  sum  of  Rs. 30,000\/- lost by theft  as  a\t permissible\ndeduction  in  computation of his net income on\t the  ground\nthat it was a trading loss.  The Income Tax Officer rejected\nthe  claim treating, the loss as being either of idle  money\nor a capital loss and holding that it was not incidental  to\nthe  business of the assessee.\tAn appeal before the  Income\nTax Appellate Commissioner failed; but in further appeal the\nTribunal  held that the loss was allowable being  incidental\nto  the\t carrying  on the business of the  assessee.   On  a\nreference made at the instance of the Commissioner of Income\nTax, the High Court of Andhra Pradesh answered it in  favour\nof Revenue and against the assessee.\nAllowing the appeal by special leave. the Court.\nHELD  :\t (1)  The  line\t of  distinction  as  to  whether  a\nparticular loss is a trading loss or a capital loss is\tvery\nsubtle\tand thin.  In terms no specific. provision is to  be\nfound  in either of the two Acts (Income Tax Act of 1922  or\n1961)  for allowing deduction of a trading loss of  cash  by\ntheft.\t A trading loss not being a capital loss has got  to\nbe taken into account while arriving at the true figures  of\nthe  assessee's income in the commercial sense. [803 in\t 804\nC]\n(2)The list of permissible deduction in either of the  two\nActs is not exhaustive.\t The relevant words, in s. 10(2)(xv)\nof  the\t 1922  Act corresponding to s. 37 of  the  1961\t Act\nnamely,\t \"any expenditure.......... not being in the  nature\nof capital expenditure, or personal expenses of the assessee\nlaid out or expended wholly and exclusively for the  purpose\nof such business...... has not been able to take within\t its\nambit loss of property or money by theft or dacoity as it is\nnot an expenditure which has an element of volition, but the\nforced loss. Such  a  loss  is\ta  trading  loss  in   the\ncommercial sense and has got to be takeninto\taccount\nfor ascertainment of true taxable profit,,,,. [804 C-E]\nBadridasDaga  v. Commissioner of Income-Tax, 34 I.T.R.\t10\nand Commissioner ofIncome-tax U.P. v. Nainital Bank Ltd.<\/a> 55\nI.T.R. 707, followed.\nMotipur\t  Sugar Factory Ltd. v. Commissioner of\t Income-Tax,\nBihar & Orrissa 28 I.T.R. 128, approved.\nCharles\t  Moore\t  &  Co.  (W.A.)  Ply.\t Ltd.\tv.   Federal\nCommissioner of Taxation (1956-57) Commonwealth Law  Reports\n344  and Gold Bank Services Ltd. v. Commissioner  of  Inland\nRevenue\t (1961)\t New Zealand Law Reports, 467,\tquoted\twith\napproval.\n802\n(3)If  there is a direct and proximate nexus  between  the\nbusiness operation, and the loss or it is incidental to\t it,\nthen  the  loss\t is  deductible,  as  without  the  business\noperation and doing all that is incidental to it, no  profit\ncan  be earned.\t It is in that sense that from a  commercial\nstandard  such a loss is considered to be a trading one\t and\nbecomes deductible from the total income although, in  terms\nneither\t in  the  1922 Act nor in the 1961 Act\tthere  is  a\nprovision like section 51(1) of the Australian Act. [806  G-\nH]\nBasantlal  Sanwar  Prasad v. Commissioner of  Income-Tax  67\nI.T.R.\t380 (Patna); U.P. Vanaspati Agency v.\tCommissioner\nof Income-tax 68 I.T.R. 120; Commissioner of Income Tax U.P.\nv. Sarya Sugar Mills (P) Ltd.<\/a> 70 I.T.R. 109; Commissioner of\nIncome-Tax,  Madras v. K. T.  M. S. Mahmood<\/a> 74\tI.T.R.\t100;\nCommr. of Income-Tax, M.P. v. Ganesh Rice Mill 77 I.T.R. 889\nand  Chhotulal\tAjitsingh  v.  Commissioner  of\t Income-Tax,\nRajasthan 89, I.T.R. 178, referred to,\nBansidhar Onkarmal v. Commissioner of Income-Tax, Bihar\t and\nOrissa<\/a>\t17 I.T.R. 247 '(Orissa ); M\/s.\tRam Gopal Ram  Sarup\nv.  Commissioner  of  Income-tax,  Punjab<\/a>  47  1.T.R.\t611;\nCommissioner  of  Income  Tax,\tAndhra\tPradesh\t v.   Chakka\nNarayana<\/a> 43 I.T.R. 249; Madurai Rajeshwar v. Commissioner of\nIncome-tax,  Andhra  Pradesh,  51 I.T.R. 213 and  S.  P.  S.\nRamaswami  Chettiar & Or.s. v. The Commissioner\t of  Income-\nTax, Madras I.L.R.<\/a> 53, Madras 904, disapproved.\nA direct and proximate connection and nexus must be  between\nthe  business operation and the loss.  A businessman has  to\nkeep  money either when be gets it as sale proceeds  of\t the\nstock-in-trade\tor  for disbursement to\t meet  the  business\nexpenses  or for purchasing stock-in-trade and if  he  loses\nsuch  money  in the ordinary course of business\t such  is  a\ndeductible trading loss.  It is immaterial whether the money\nis a part of the stock-in-trade such as a banking company or\na  money  lender  or is directly connected  with  the  other\nbusiness.   The risk is inherent in the carrying on  of\t the\nbusiness  and  is  either  directly  connected\twith  it  or\nincidental to it.\nIn  the instant case, the High Court took an erroneous\tview\nin  giving  an answer against the assessee.  The  loss\twas,\nhowever, directly connected with business operation and\t was\nincidental to the carrying on of the business of purchase of\nGovernment securities to earn profits.\tIn such a  situation\nit was a part of the trading loss and deductible as such  in\narriving at the true profit-, of the assessee. [808 B-C,  E-\nG]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1611  of
\n1972,
\nAppeal by Special Leave from the Judgment and Order dated 4-
\n3  1974 of the Andhra Pradesh High Court in  Case  Reference
\nNo. 28 of 1969.\n<\/p>\n
Jitendra Sharma for the Appellant.\n<\/p>\n
K.   C. Dua and R. N. Sachthey for the Respondent.
\nThe Judgment of the Court was delivered by
\nUNTWALIA  J.–This is an assesee’s appeal by  special  leave
\nfrom  the  decision of the Andhra Pradesh High\tCourt  in  a
\nreference  made\t by  the  Income  Tax  Appellate   Tribunal,
\nHyderabad Bench under section 256(1) of the Income Tax\tAct,
\n1961-hereinafter referred to as the 1961 Act.  The  question
\nreferred  for the opinion of the High Court at the  instance
\nof the Revenue was in the following terms
\n\t      “Whether,\t  on   the   facts   and   in\t the
\n\t      circumstances  of the case, the  assessee\t was
\n\t      entitled\tto the allowance of the loss of\t Rs.
\n\t      30,000 ?”\n<\/p>\n
803<\/span><\/p>\n
The  facts of the case as found by the Tribunal are  in\t a
\nvery  narrow  (,compass.   Their  correctness  was   neither
\nchallenged nor could it be ,challenged in the High Court  on
\nany legal grounds, such as, that the findings were  vitiated
\nas being perverse, wholly unreasonable or unsupported by any
\nevidence.  No reference to challenge the correctness of\t the
\nfacts  was either asked for or made.  The High\tCourt  has.
\ntherefore,  rightly proceeded to answer the question on\t the
\nfacts found, by the Tribunal.\n<\/p>\n
The  assessee is a registered firm carrying on\tbusiness  in
\ngold,  silver, and gunnies at Rajahmundry.  It also  derives
\nincome\tfrom  investment  in  Government  securities.\t The
\nassessment  year in question is 1964-65.  The  corresponding
\naccounting year ended on October 16, 1963.  The assessee had
\nsold some Government securities and bonds in the years\tboth
\npreceding  and succeeding the accounting year  concerned  in
\nthe  present appeal.  Income-tax was levied on\tsuch  income
\nalso.  For the assessment year 1964-65 it returned a loss of
\nRs. 5,008\/- from the business.\tThe said figure was  arrived
\nat  after claiming a loss of Rs. 30,000\/on account of  theft
\ncommitted   by\tsome  stranger\tduring\t the   corresponding
\naccounting period.  A sum of Rs. 50,0001- for the purpose of
\npurchasing  Government\tsecurities was brought\tin  cash  to
\nRajahmundry  by its employee.  The money was handed over  to
\nits  cashier.  When the cashier turned his back to take\t out
\nsome  books,  a stranger suddenly arrived at  the  place  of
\nassessee’s business and committed the theft of 30,000\/-.  In
\nspite of the lodging of a report with the police, no  amount
\ncould  be, recovered.  The assessee claimed the sum  of\t Rs.
\n30,000\/lost   by  theft\t as  a\tpermissible   deduction\t  in
\ncomputation  of his net income on the ground that it  was  a
\ntrading\t loss.\t The Income Tax Officer rejected  the  claim
\ntreating the loss as being either of idle money or a capital
\nloss. According\t to  him it was not  incidental\t to  the
\nbusiness of the assessee. Its  appeal before the  Income
\nTax Appellate Commissioner failed butthe\t assessee
\nsucceeded in the further appeal taken to the Tribunal.\t The
\nloss was allowed on the ground that it was incidental to the
\ncarrying   on  of  the\tbusiness  of  the   assessee.\t The
\nCommissioner  of Income Tax asked for a reference which\t was
\nmade on the question ,of law above mentioned.
\nMany cases of this kind involving almost identical questions
\non  facts  somewhat  similar or varying\t have  come  up\t for
\nconsideration before the Courts in England and varying other
\ncountries and the various High Courts in India.\t The line of
\ndistinction  as\t to whether a particular loss is  a  trading
\nloss  or a capital loss has sometimes been very\t subtle\t and
\nthin  resulting in expression of different opinions  by\t the
\ndifferent High Courts almost on identical or similar  facts.
\nThe  leading  decision\tof this Court is.  in  the  case  of
\nBadridas  Daga\tv.  Commissioner  of  Income  Tax<\/a>(1).\t The
\nprinciple  decided in that case was reiterated with  greater
\nforce, if we may say so with respect, in another decision of
\nthis  Court in Commissioner of income-Tax, U.P. v.  Nainital
\nBank  Ltd<\/a>(2) After the said two decisions most of the-\tHigh
\nCourts\thave applied, as they were bound to, the  principles
\nenunciated in them in favour of the assessees under  similar
\ncircumstances  and facts.  But we shall presently show\tthat
\nthe Andhra
\n(1) 34 I.T.R. 10\t  (2) 55 I.T.R. 707
\n804<\/span>
\nPradesh\t High  Court persisted and has done so even  in\t the
\njudgment  under appeal in taking ,rather, a narrow  view  of
\nthe matter and not correctly applying the ratio decidendi of
\nBadridas Daga’s and Nainital Bank’s cases,
\nUnder section 10(1) of the Income Tax Act,  1922-hereinafter
\ncalled the 1922 Act, the assesses was required to pay tax in
\nrespect\t of the profits or gains of any business carried  on
\nby him-.  The corresponding provision in the 1961 Act is  to
\nbe  found in section 28.  Sub-section (2) of section  10  of
\nthe  1922  Act\tprescribed the\tmethod\tfor  computation  of
\nprofits\t or gains after making the allowances enumerated  in
\nthe various clauses of that sub-section.  The  corresponding
\nsection 29 of the 1961 Act says : “The income referred to in
\nsection\t 28  shall  be\tcomputed  in  accordance  with\t the
\nprovisions  contained in sections 30 to 43-A.” In  terms  no
\nspecific provision is to be found in either of the two\tActs
\nfor allowing deduction of a trading loss of the kind we\t are
\nconcerned with\tin this case. But    it\t   has\t   been
\nuninformally  laid  down that a trading loss   not  being  a
\ncapital loss has got to be taken into account while arriving
\nat  the\t true  figures\tof  the\t assessee’s  income  in\t the
\ncommercial  sense.   The list of permissible  deductions  in
\neither of the Acts is not exhaustive.  We may just refer  to
\nsection 10(2) (xv) of the 1922 Act corresponding to  section
\n37  of\tthe  1961  Act.\t The  relevant\twords  of  the\tsaid
\nprovision namely “any expenditure not being in the nature of
\ncapital\t expenditure  or personal expenses of  the  assessee
\nlaid out or expended wholly and exclusively for the  purpose
\nof  such business……… I occurring in either of the\t two
\nprovisions  has not been able to take within its ambit\tloss
\nof  property  or money by theft or dacoity as it is  not  an
\nexpenditure  which has an element of volition, but a  forced
\nloss.\tThe  cases  have laid down that such  a\t loss  is  a
\ntrading loss in the commercial sense and has got to be taken
\ninto account for ascertainment of true taxable profits.
\nNow we proceed to refer to some decisions of the High Courts
\nand this Court.\t We may start with a Patna decision reported
\nin  Motipur Sugar Factory, Ltd. v. Commissioner\t of  Income-
\nTax, Bihar and Orissa(1).  The assesses company carrying  on
\nbusiness  in  the manufacture of sugar and molasses  out  of
\nsugarcane  deputed  an\temployee,  in  compliance  with\t the
\nstatutory  rules,  with cash for distribution  to  sugarcane
\ncultivators at the spot of purchase.  The cash was robbed on
\nthe way.  The High Court took the view that the loss was one
\narising out of the business of the assessee and sprang\tfrom
\nthe  statutory\tnecessity  of  ,sending\t money\tto   various
\npurchasing centres for distribution and hence was deductible
\nfrom the assessee’s taxable income.  The stress by the\tHigh
\nCourt  that sending of money to various\t purchasing  centres
\nsprang\tfrom  the  statutory  necessity\t was  not  of\tmuch
\nconsequence.   The  method of business\toperation  springing
\nfrom custom, trade usage or practice or otherwisemay   make
\nthe assessee send cash to or bring cash from other places. The
\nPatna,\tdecision has been approved in the decisions of\tthis
\nCourtin Badridas Daga’s and Nainital Banks cases.
\n(1)28 I.T.R. 128.\n<\/p>\n
805<\/span><\/p>\n
In  Badridas Daga’s case an agent of the  assessee  withdrew
\nfrom the firms bank account large sums of money and  applied
\nthem  in  satisfaction\tof his personal\t debts\tincurred  in
\nspeculative  transactions.  A part of it was recovered\tfrom
\nhim but the balance of Rs. 2,00,000\/and odd was written\t off
\nat  the\t end of the accounting year as\tirrecoverable.\t The
\nquestion for consideration was whether the amount  embezzled
\nby the assessee’s agent was to be deducted in computation of
\nthe assessees profits.\tVenkatarama Tiyar J. delivering\t the
\njudgment of the Court has said at page 15 of 34 I.T.R.\n<\/p>\n
\t      “The result is that when a claim is made for a
\n\t      deduction\t for  which  there  is\tno  specific
\n\t      provision\t in  section 10(2),  whether  it  is
\n\t      admissible  or  not will\tdepend\ton  whether,
\n\t      having regard to accepted commercial  practice
\n\t      and  trading  principles, it can\tbe  said  to
\n\t      arise  out of the carrying on of the  business
\n\t      and  to  be  incidental to  it.\tIf  that  is
\n\t      established,   then  the\tdeduction  must\t  be
\n\t      allowed,\tprovided  of  course  there  is\t  no
\n\t      prohibition    against\tit,    express\t  or
\n\t      implied……..\n<\/p><\/blockquote>\n
The    learned\t  Judge\t   emphasised\tat    page    1\t   6
\nthat  the  loss for which a deduction could  be\t made  under
\nsection\t 10(1)\tmust be one that springs directly  from\t the
\ncarrying on of the business and is incidental to it and\t not
\nany  loss  sustained by the assessee, even if  it  has\tsome
\nconnection with his business.” An example of theft committed
\nby a thief by breaking overnight the premises of the  money-\n<\/p><\/blockquote>\n
lender\tand  running  with the funds was given\tto  show  in
\nDaga’s case that it would not be an allowable loss.  But the
\nexample was not considered to be quite appellate in the case
\nof Nainital Bank for taking the opposite view.\tThe majority
\nopinion of a special Bench of the Madras High Court in S. P.
\nS. Ramaswami Chettiar & Ors. v. The Commissioner of  Income-
\nTax, Madras,<\/a>(1) were merely referred in Badridas Daga’s case
\nbut was disapproved in Nainital Bank’s case. The  facts
\nof the latter case were that the Bank in the usual course of
\nitsbusiness had to keep cash money in various safes in its
\nvarious\t branches.  At one of its branches the\tcash  amount
\nof  Rs. 1,00,000\/ and odd was stolen in a dacoity  committed
\nat about 7.00 p.m. Subba Rao J., as he then was,  dismissing
\nthe  department’s appeal held the loss to be  an  admissible
\ndeduction  chiefly on the ground that it formed part of\t the
\nstock-in-trade\tof  a banking company.\tA  large  number  of
\nauthorities  were considered including the one\tin  Badridas
\nDagds  case.   A  distinction drawn in\tsome  of  the  cases
\nbetween\t misappropriation  of  the assessee’s  money  by  a’
\nservant\t or loss to him by reason of cash being robbed\tfrom
\nits  servant  was  held to be of no  consequence.   In\tthat
\nregard referring to the decision of the Madras High Court in
\nRamaswami  Chettiar’s case it was held that the\t correctness
\nof the said decision was shaken when this Court in  Badridas
\nDaga’s\tCase  approved\tthe  Patna  view  in  Motipur  Sugar
\nFactory’s   case.    The   minority   view   expressed\t  by
\nAnantakrishna  Ayyar J. was preferred.\tThe decision of\t the
\nHigh  Court of Australia in Charles Moore & Co.\t (W.A.)\t Pty
\nLtd.  v.  Federal Commissioner of  Taxation(2)\twas  heavily
\nrelied upon.\n<\/p>\n
(1)  I.L.R. 53, Mad. 904.\n<\/p>\n
(2)  (1955-57) 95 Commonwealth Law Reports, 344.\n<\/p>\n
806<\/span><\/p>\n
Reference was also made to the decision of a learned  single
\nJudge  of the New Zealand Supreme Court in the case of\tGold
\nBank  Services Limited v. Commissioner of Inland Revenu\t (1)
\nwhich  had  followed  the  Australian  decision\t in  Charles
\nMoore’s case.\t      The case of Nainital Bank was held  to
\nbe  stronger than the two foreign decisions aforesaid.\t  We
\nmay  however, point out the slight distinction\tbetween\t the
\nIncome-tax  law\t of Australia and New Zealand  and  that  of
\nIndia, although basically\t\t  in principle there
\nis hardly any difference.\t In the Australian case\t the
\nv.  Commissioner of Inland Revenue() which had followed\t the
\nAustra v. Commissioner\t of  Inland  Revenue()\t which\t had
\nfollowed the Austra v.\t Commissioner  of  Inland  Revenue()
\nwhich had followed the Austra statutory language ofsection
\n51(1)  of  the Income Tax and Social  Services\tContribution
\nassessment  Act 1936-1952 fell for consideration.   The
\nrelevant words of the,said   provision\twere  :\t  “losses
\nnecessarily incurred in gaining or producing the  assessable
\nincome.”  In  our Acts there is no  such  express  provision
\nbecause\t  the\tcorresponding  provision   used\t  the\tterm
\n‘expenditure’ and not losses.  But the principle decided  by
\nthe full Court of the, High Court of Australia (the  highest
\nCourt  in  the\tland) is aptly\tapplicable  in\tIndia.\t The
\nargument  for  the Commissioner that before  the  money\t was
\nstolen it had come home to the tax-payer so as to form\tpart
\nof  the\t capital resources was rejected at page 351  on\t the
\nground
\n\t      “……  we  are\there  dealing  with  a\tloss
\n\t      incurred in an operation of business concerned
\n\t      with the regular inflow of revenue, not with a
\n\t      loss  of\tor concerning part  of\tthe  “profit
\n\t      yielding\tsubject,” the phrase in\t which\tLord
\n\t      Blackburn in United Collieries Ltd. v.  Inland
\n\t      Revenue  Commissioners-(1930) S.C. 215. at  p.
\n\t      220;  (1929)  12\tTax as.\t 1248,\tat  p.\t1254
\n\t      summarised  the characteristics of a  business
\n\t      undertaking  or  enterprise considered  as  an
\n\t      affair of a capital nature.”\n<\/p>\n
The language of the New Zealand statute was more or less the
\nsame  except  that it contained\t the  adverb  “exclusively”.
\nHaslam\tJ.,  therefore,\t stated at page 470  of\t (1961)\t New
\nZealand Law Reports :-\n<\/p>\n
\t      “While  our  section contains  the  adverb   ”
\n\t      exclusively”,   which  is\t absent\t  from\t its
\n\t      Austrailan counterpart, I do not think that on
\n\t      the  instant facts this difference in  wording
\n\t      can affect the conclusion.  In my opinion, the
\n\t      loss  was exclusively incurred in\t the  manner
\n\t      described, since the risk of precisely such an
\n\t      event  was  inherent  in\tthe  course  of\t the
\n\t      production of assessable income.”\n<\/p><\/blockquote>\n
The principle applicable in India is more or less the  same.
\nIf  there  is  a  direct and  proximate\t nexus\tbetween\t the
\nbusiness  operation and the loss or it is incidental to\t it,
\nthen  the  loss\t is deductible,\t as,  without  the  business
\noperation and doing all that is incidental to it, no  profit
\ncan  be earned.\t It is in that sense that from a  commercial
\nstandard  such a loss is considered to be a trading one\t and
\nbecomes deductible from the total income, although, in terms
\nneither\t in  the  1922 Act nor in the 1961 Act\tthere  is  a
\nprovision like section 51 (1) of the Australian Act.
\nThere is a veritable roll-call of cases of the various\tHigh
\nCourts in India, mostly under similar circumstances,  taking
\nthe  view on the lines of Daga’s and Nainital Bank’s  cases.
\nWe may just refer to some of
\n(1)  (1961) New Zealand Law Reports, 467.\n<\/p>\n
807<\/span><\/p>\n
them  In Basentlal Sanwar Prasad v. Commissioner of  Income-
\nTax(1) the loss of cash in a burglary committed at night  in
\na  wholesale cloth shop was held to be allowable.   In\tU.P.
\nVanaspati   Agency   v.\t  Commissioner\t of    Income-Tax(2)
\n(Allahabad)  money  entrusted  to  an  employee\t for   being
\ndeposited  in  the Bank but lost in the way by\trobbery\t was
\nheld  to  be, deductible.  To the same effect  is  the\tview
\nexpressed   by\t Allahabad  High  Court\t in  the   case\t  of
\nCommissioner  of Income-Tax, U.P. v. Sarya Sugar  Mills\t (P)
\nLtd.<\/a>(3); by the Madras High Court in Commissioner of Income-
\nTax, Madras v. K. T. M. S. Mahmood<\/a>(4); by the Madhya Pradesh
\nHigh Court in Commissioner of Income-Tax M.P. v. Ganesh Rice
\nMills<\/a>(5) and the Rajasthan High Court in Chottulal  Ajitsing
\nv.  Commissioner of Income_Tax, Rajasthan.(6)  The  contrary
\nview  expressed\t in  the  case\tof  Bansidhar  Onkermal\t  v.
\nCommissioner  of Income-Tax, Bihar and Orissa<\/a>(7) and in\t the
\nMadras full Bench ,case of Chettiar’s is no longer good law.
\nThe  ratio  of\tDaga’s\tcase does  not\tseem  to  have\tbeen
\ncorrectly  applied by the Punjab High Court in Mesars.\t Ram
\nGopal Ram Sarup v. Commissioner of Income-Tax, Punjab<\/a>(8).
\nNow   we  proceed  to  point  out  the\tpersistently   wrong
\napplication of the law laid down by this Court by the Andhra
\nPradesh High Court in two earlier decisions followed in\t the
\ndecision  under\t appeal also.  They are\t :  Commissioner  of
\nIncome-Tax, Andhra Pradesh v. Chakka Narayana<\/a>(9) and  Maduri
\nRajeshwar  v.  Commissioner of\tIncome-Tax,  Andhra  Pradesh
\n(10).\tIn Chakka Narayana’s case (supra) the  assessee\t who
\nwas  a\tdealer in cloth and government\tsecurities  encashed
\ngovernment  securities worth about Rs. 20,000.\tHe  went  to
\nthe Madras Railway Station for taking the cash to his  place
\nof  business  but  lost\t the  money  on\t account  of   theft
\ncommitted.  The High Court referred to Badridas Daga’s\tcase
\nbut  yet  distinguished\t it  and  preferred  to\t follow\t the
\nmajority decision of the Full Bench of the Madras High Court
\nin  Ramaswami  Chettiar’s  case which, as  we  have  already
\npointed\t out,  was not approved by this\t Court\tin  Nainital
\nBank’s\tcase. the High Court enunciated the  law  correctly,
\nbut committed an error in applying the same to the facts  of
\nthat case when it said : “It could not be posted that it was
\nabsolutely  necessary  for the assessee to cash\t the  cheque
\nissued\tand  to carry the money on his person.\tIt  is\tonly
\nwhen it could be posited that it was part of his business to
\ntake money with him that it could be said that the loss\t was
\nincidental to his business.”We\tdo  not\t approve  of  this
\ndistinction.\t\t   Similarly the Andhra PradeshHigh
\nCourt  took a narrow view in Maduri Rajeshwar’s\t case  also.
\nThere a stranger came to the assessee’s shop during business
\nhours  and, when the assessee had gone into another room  to
\ntalk on the telephone, the stranger removed the cash box and
\ndisappeared.   Chandra\tReddy  C.J. who\t had  delivered\t the
\nleading\t judgment in the earlier case as also in this  case,
\nif we may point out with respect, committed the same mistake
\nwhen he said at page 216 :\n<\/p>\n
(1) 67 I.T. R 380 (Patna).    (6) 89 I.T.R. 178
\n(2) 68. I.T.R, 120. (7) 17 I.T.R. 247 (Orissa).
\n(3) 70 I.T R. 109.  (8) 47 I.T.R. 61 1.\n<\/p>\n
(4) 74 T.T R. 100.  (9) 43 I.T.R. 249.\n<\/p>\n
(5) 77 I.T.R. 889.  (10) 51 I.T.R. 213.\n<\/p>\n
808<\/span><\/p>\n
\t      “It   cannot  be\tpostulated  that  the\tloss
\n\t      sustained\t by the assesee resulting  from\t the
\n\t      theft  committed\tby  the\t stranger-   springs
\n\t      directly from his business or is incidental to
\n\t      the  carrying  on of it. The  only  connection
\n\t      that  could  be established in this-  case  is
\n\t      that at the time theft was committed money was
\n\t      in  the  business premises and it\t was  during
\n\t      business hours.  There is no other  connection
\n\t      between  the theft of the money and the  busi-
\n\t      ness of the assessee.”\n<\/p><\/blockquote>\n
It  is\tto  be\tremembered that\t the  direct  and  proximate
\nconnection and nexus must be between the business  operation
\nand the loss.  It goes without saying that a businessman has
\nto keep money either when he gets it as sale-proceeds of the
\nstock-in-trade,\t or  for disbursement to meet  the  business
\nexpenses  or for purchasing stock-in-trade and if  he  loses
\nsuch money in the ordinary course of business, the loss is a
\ndeductible trading loss.  It is immaterial whether the money
\nis  a  part  of the stock-intrade, such as,,  of  a  banking
\ncompany or a money-lender, or is directly connected with the
\nother  business\t operations.  The risk is  inherent  in\t the
\ncarrying on of the business and is either directly connected
\nwith it or incidental to it.\n<\/p>\n
In  the judgment under appeal the High Court, to  our  mind,
\nhas  taken  the\t same erroneous view and  given\t the  answer
\nagainst\t the  assessee\tinspite of the,\t fact  that  it\t has
\nnoticed a catena of cases of the various High Courts already
\nalluded to by us also.\tDistinguishing the preponderance  of
\nthe view expressed in the various decisions in favour of the
\nassessee,  the High Court, in our opinion, wrongly chose  to
\nstick to its earlier narrow view.\n<\/p>\n
In  the\t light of the conspectus of the\t law,  as  discussed
\nabove,\tlet  us\t see  whether on  the  facts  found  by\t the
\nTribunal:  the\tloss  of Rs. 30,000\/-  was  allowable  as  a
\ntrading\t loss.\t The  assessee had borrowed a  sum  of,\t Rs.
\n50,000\/- from some creditor.  The money was brought in\tcash
\nto  Rajahmundry\t by its employee.  Such a mode\tof  business
\noperation  is very common and well-known.  Out of  the\tsaid
\nsum of Rs. 50,0001which was meant for purchase of Government
\nsecurities  a sum of Rs. 30,000\/- was lost by theft.  It  is
\nimmaterial  whether Government securities were purchased  by
\nthe  remaining\tsum of Rs. 20,000\/- or not.  The  loss\twas,
\nhowever, directly connected with the business operation\t and
\nwas  incidental\t to  the  carrying on  of  the\tbusiness  of
\npurchase of Government securities to earn profit.  In such a
\nsituation  it was a part of the trading loss and  deductible
\nas such in arriving at the true profits of the assessee.
\nIn the result we allow the appeal,, set aside the,  decision
\nof  the High Court and answer the question in favour of\t the
\nassessee  and against the Commissioner of  Income-Tax.\t The
\nlatter must pay to the appellant the costs in this appeal.\n<\/p>\n
S.R.\t\t      Appeal allowed.\n809<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramachander Shiv Narayan vs Commissioner Of Income … on 4 November, 1977 Equivalent citations: 1978 AIR 278 Author: N Untwalia Bench: Untwalia, N.L. 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-105338","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamachander Shiv Narayan vs Commissioner Of Income ... on 4 November, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramachander-shiv-narayan-vs-commissioner-of-income-on-4-november-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramachander Shiv Narayan vs Commissioner Of Income ... on 4 November, 1977 - 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