{"id":126033,"date":"1997-12-02T00:00:00","date_gmt":"1997-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-maddi-venkataraman-co-p-vs-the-commissioner-of-income-tax-on-2-december-1997"},"modified":"2017-02-15T22:11:43","modified_gmt":"2017-02-15T16:41:43","slug":"ms-maddi-venkataraman-co-p-vs-the-commissioner-of-income-tax-on-2-december-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-maddi-venkataraman-co-p-vs-the-commissioner-of-income-tax-on-2-december-1997","title":{"rendered":"M\/S. Maddi Venkataraman & Co. (P) … vs The Commissioner Of Income Tax on 2 December, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Maddi Venkataraman & Co. (P) … vs The Commissioner Of Income Tax on 2 December, 1997<\/div>\n
Author: Sen<\/div>\n
Bench: Suhas C. Sen, S. Saghir Ahmad<\/div>\n
           PETITIONER:\nM\/S. MADDI VENKATARAMAN & CO. (P) LTD.\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME TAX\n\nDATE OF JUDGMENT:\t02\/12\/1997\n\nBENCH:\nSUHAS C. SEN, S. SAGHIR AHMAD\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 2ND DAY OF DECEMBER, 1997
\nPresent:\n<\/p>\n
\t       Hon’ble Mr.Justice Suhas C.Sen
\n\t       Hon’ble Mr.Justice S.Saghir Ahmad
\nRamesh P.Bhatt,\t Sr.Adv. M.N.Shroff, Ms. Ragini Singh, Advs.
\nwith him for the appellant
\nRanvir Chandra, C.V.Rao, S.R.Tardol, Nagpal, and B.K.Prasad,
\nAdvs. for the Respondent
\n\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\nSEN, J.\n<\/p>\n
     The Tribunal  referred the following question of law to
\nthe Andhra  Pradesh High  Court under Section 256 (1) of the
\nIncome Tax Act, 1961.\n<\/p>\n
     “1. Whether on the facts and in the
\n     circumstances of the case, a sum of
\n     Rs 2.95,000\/-  has to be taken into
\n     account in\t computing the income of
\n     the assessee  from\t business  under
\n     the provisions of Section 28 of the
\n     Income Tax Act, 1961?\n<\/p><\/blockquote>\n
     If the answer to the above question
\n     is in the negative-\n<\/p><\/blockquote>\n
     Whether on\t the facts  and\t in  the
\n     circumstances  of\t the  case,  the
\n     claim of  Rs 2,95,000\/-  is covered
\n     by\t sub-rule   (J)\t of  Rule  6-DD,
\n     framed under Section 40-A(3) of the
\n     Income Tax Act, 1961?”\n<\/p><\/blockquote>\n
     2.\t  “Whether on  the facts  and in
\n     the circumstances\tof the case, the
\n     sum of the Rs. 19.695\/- incurred as
\n     quest-expenses  is\t  allowable   as
\n     deduction?”<\/p><\/blockquote>\n
     The  assessee,   to  start\t  with,\t was  a\t partnership
\nconsisting  mostly  of\tfamily\tmembers,  in  1965,  it\t was
\nconverted into\ta public company to carry on the business of
\nexport of tobacco. The first directors appointed at the time
\nof incorporation  were to  hold office during their lifetime
\nor until they resigned voluntarily.\n<\/p>\n
     On the  basis of the information received, a search was
\nconducted by  the Enforcement Directorate in the  assessee’s
\nbusiness premises.  A number  of latters and other documents
\nwere seized  which disclosed  that the assessee had indulged
\nin transactions\t in violation  of the  provisions of Foreign
\nExchange (Regulation)  Act (for\t short `FERA’). It was found
\nthat  the  assesee  had\t remitted  to  a  private  party  in
\nSingapore  in  violation  of  law.  Proceedings\t were  taken
\nagainst the  assessee for  infringement of Sections 4(2) and
\n5(1)(e) of FERA and ultimately a penalty of Rs. 35,000\/- was
\nimposed under  Section 23  (1)(a) read\twith Section 23-c of
\nthe Act.  The assessee\tin its\tincome tax   return  for the
\nassessment year\t 1970-71 claimed deduction of Rs. 2.95,000\/-
\nas business  expenditure\/loss. According  to the assessee in
\ncourse of  carrying on\tof its business by the year 1966. It
\nhad  accumulated   329.2  tonnes  of  sub-standard  quality,
\ntobacco which it could not export over the last three years.
\nSince the  accumulated stock  of tobacco was of sub-standard
\nquality, it  could not\tbe sold\t at the floor price fixed by
\nthe Government\tof India  for such tobacco. According to the
\nassessee, it had no alternative but to sell the tobacco at a
\ndiscount of  20% to  a Singapore  party. On  paper, the full
\nsale price  was paid  by the  Singapore party but in reality
\n20% of\tthe price paid by the party was remitted back to him
\nthrough one  Shamsuddin.  In  pursuance\t of  this  agreement
\ntobacco was  sold and  the full\t floor price was received by
\nthe assessee  from the\tSingapore party. The assessee paid a
\nsum  of\t Rs.  2.88,000\/-  to  Shamsuddin  who  remitted\t the
\nequivalent amount  in Singapore\t currency to  the  Singapore
\nparty.\tThus,\taccording  to\tthe  assessee,\t it  had  no
\nalternative but to enter into such a ******** with a view to
\ndispose of  the sold  unsold stock  of inferior\t quality  of
\ntobacco. In  these facts  of the case. It was claimed by the
\nassessee  that\t the  amount   of  Rs.\t2,88,000\/-  paid  to
\nShamsuddin ought  to be\t deducted as business expenditure or
\ntreated as business loss.\n<\/p>\n
     The Income\t Tax Officer  however, disallowed the claim.
\nAccording to him. Payment was not genuine and it contravened
\nthe provisions\tof Section  40-A(3) of\tFERA. It was further
\nheld that  the payment\tdid  not  fall\twithin\tany  of\t the
\nexceptions   to\t  Rule\t 6-DD.\t The   appellant   Assistant
\nCommissioner affirmed  the order  of the Income Tax Officer.
\nOn further appeal, the Tribunal made the following findings.\n<\/p>\n
(a)  A sum of Rs. 2,95.000 was paid by this assessee company
\nto Shamsuddin  which consisted\tof an  amount payable to him
\nfor his\t services and  also a  sum of  Rs. 2,88,000\/-  to be
\nremitted  to   the  Singapore  party.  The  amount  paid  to
\nSingapore party\t was difference of 20% of the floor price of
\ntobacco fixed by the Government.\n<\/p>\n
(b)  The  assessee  was\t knowingly  a  party  to  the  above
\ntransaction and\t it violated  the provisions  of  FERA.\t The
\nTribunal also  took the view that the assessee’s income from
\nexport to  the Singapore  party in  reality was not the full
\nprice shown  to have  been received from the Singapore party
\ni.e., 8.86,702.89.  The figure had to be reduced by a sum of
\nRs. 2,95.000\/-\tbecause this  was the  sum which  was really
\nreceived by  the assessee.  It was  of the  view that it was
\nunnecessary to\tgo into\t the question whether the sum of Rs.
\n2,95,000\/- was\tto be created as a deduction and if so under
\nwhich Section  and further  whether it attracted Section 40-
\nA(3) of the Act.\n<\/p>\n
(c)  The Tribunal held that even otherwise, the said payment
\ndid not attract Section 40-A(3) since it was covered by sub-
\nrule  (j)   Rule  6-DD\tinasmuch  as  the  said\t payment  to
\nShamsuddin  was\t  made\tin   cash  due\tto  exceptional\t and
\nunavoidable circumstances.\n<\/p>\n
     In the  Department’s contentions  that the payment made
\nto Shamsuddin  was illegal  and\t could\tnot  be\t taken\tinto
\naccount for  any purpose  were\tunsustainable  in  law.\t The
\nincome tax law did not distinguish between legal and illegal
\nincome or between legal and illegal expenditure.\n<\/p>\n
     The High Court was of the view that the Tribunal was in
\nerror in  coming to the conclusions that it had reached. The
\nHigh Court pointed out that expenses tainted with illegality
\ncould not  be allowed  as business expenditure under Section
\n37 or as business loss or on any other basis. The High court
\nwas of\tthe further  view that\tthe assessee  could  not  be
\nallowed to  achieve the\t same result by invoking Section 28.
\nThe High  Court also  expressed the view that the assessee’s
\ncontentions that  its real income from export of tobacco was
\nnot Rs.\t 6.86,702.89 paise which was paid to it but its real
\nincome was  that amount\t minus Rs.  2,95.000\/- which  he had
\nsubsequently repatriated in Singapore dollars. It was only a
\nfacade to  realise the\ttrue price  of the transaction which
\nwas 80%\t of the\t floor price.  Therefore, the  invoice which
\nshowed the  floor price\t was not  the true reflection of the
\nreal transaction  between the  two parties.  The High  Court
\nrejected this  contention by holding that the very agreement
\nto receive  80% of  the floor  price which  was the  invoice
\nvalue of the tobacco was illegal. The High Court pointed out
\nthat in\t law, there  could not have an agreement to agree to
\ntake anything  less than  the invoice  price. The  agreement
\nthat tobacco  was of the sub-standard quality was no answer.
\nAn exporter was not supposed to export sub-standard tobacco.\n<\/p>\n
     The High  Court was  of the  view that  the sum  of Rs.
\n2,88,000\/- had\tnot been  repatriated in  a straight forward
\nmanner but  has been  sent to  Singapore through  an illegal
\nchannel. It  is not  a case of money being diverted under an
\noverriding  legal  obligation.\tThe  High  Court  ultimately
\nconcluded that\tthe agreement  being illegal and contrary to
\nlaw, cannot be recognised by a court of law nor can entering
\ninto such  transaction be  a normal incidence of carrying on
\nbusiness. The High court further held that argument based on
\nreal price  was of no substance. If a contractor received an
\namount of  Rs. lakhs  under a contract entered into with the
\nGovernment he  cannot claim  that in reality, the amount was
\nRs. 9  lakhs because at the time to awarding the contract he
\nhad an\tunderstanding with the authority to pay a sum of Rs.
\none lakh by way of bribe.\n<\/p>\n
     The High  Court referred to a large number of decisions
\nwhere it has been held that payments tainted with illegality
\ncannot be  claimed as  deduction under\tthe income  Tax Act.
\nHowever, if  an assessee  is penalised\tunder  one  Act,  he
\ncannot claim  that amount  to be  set off against his income
\nunder another  Act because  that  will\tbe  frustrating\t the
\nentire object of imposition of penalty.\n<\/p>\n
     One exception to this rule which has been recognised by
\nthe Courts  is where  the entire business of the assessee is
\nillegal and  that income  is sought to e taxed by the Income
\nTax Officer  then the  expenditure incurred  in the  illegal
\nactivities will also have to be allowed as deduction. But if
\nthe business is otherwise lawful and the assessee resorts to
\nunlawful means\tto augment  his profits\t or reduce his loss,
\nthen the  expenditure incurred for these unlawful activities
\ncannot be  allowed to  be deducted. Even if the assessee had
\nto pay\tfine or penalty because of an inadvertent infraction
\nof law which did not involve any moral obliquity, the result
\nwill be\t the same. Even in such cases, deduction will not be
\npermitted of  the amounts  paid as penalty of fine or of the
\nvalue of the goods confiscated by the statutory authority as
\nexpenditure wholly and exclusively incurred for the purposes
\nof carrying  on the  trade. It has been consistently held by
\nthe English  Courts that  fines\t or  penalties\tpayable\t for
\nviolation of  law cannot be permitted as deduction under the
\nIncome Tax  Act. That  will be\tagainst public\tpolicy. Even
\nthough the  need for  making  such  payments  arose  out  of
\ntrading\t operation   the  payment   were  not\twholly\t and
\nexclusively for\t the purpose  of the trade. One can carry on
\nhis trade  without violating  the law.\tIn fact,  Section 37
\npresumes that the trade will be carried on lawfully.\n<\/p>\n
     The English  Courts have consistently held that penalty
\nor fine\t or money paid to compound and offence under another
\nstatute cannot\tbe allowed  as a  deduction under the Income
\nTax  Act.   For\t the   application  of\t these\t principles,
\nconsideration of moral obliquity was quite immaterial.\n<\/p>\n
     In the  case of the Commissioners of Inland Revenue vs.
\nE.C.Warnes 12  Tax Cases  227, the  Company  had  to  pay  a
\npenalty under  the provisions of the Customs (Consolidation)
\nAct, 1876  in respect  of a consignment of oil shipped by it
\nto  Norway.  The  action  was  settled\tby  consent  on\t the
\nagreement of  the company  to pay a mitigated penalty of Rs.
\n2,000 and  on all  imputations as  to  the  Company’s  morel
\nculpability being  withdrawn. It was declared that there was
\nno  intention\tfrom  the   beginning  to  the\tend  of\t the
\ntransaction that  the Company  had by  connivance or consent
\nbeen taking part in trading with the enemy but had only been
\nculpable  of   carelessness.  In   defending   the   penalty
\nproceedings, the  Company had incurred legal costs amounting
\nto   560 18s  10d. These  two amounts incurred on payment of
\nthe penalty  and also  legal cost  have been  taken for\t the
\ncomputation of\tExcess Profits\tDuty purposes,\tOn behalf of
\nthe company.  if was  contended that  both the\tpenalty\t and
\ncosts should  be  allowed  as  losses  arising\tout  of\t and
\nincidental to trade. It was pointed out that the penalty and
\nthe costs  were solely\tconnected with\tand arose out of the
\ntrace carried  on by them and as such were detectable in the
\nsame manner  that bad debts are deductible in computation of
\nprofits. Lastly, it was argued that profits must be taken in
\ntheir commercial sense. In that sense this was loss which an
\nordinary prudent  commercial man  would and could only write
\noff against  the profits  of the business. The Commissioners
\nwho heard the appeal held in favour of the company. When the
\nmatter came  before the\t High Court  Rowlatt, J.  recognised
\nthat the  provision of\tlaw  under  which  the\tpenalty\t was
\nimposed is  “one of very great and startling stringency; but
\nof course the liability it creates can only be regarded as a
\nliability of penal character” and held.\n<\/p>\n
     “It  seems\t  to  me  that\ta  penal
\n     liability of  this kind  cannot  be
\n     regarded as  a loss  connected with
\n     arising out  of a\ttrace.\tI  think
\n     that  a   loss  connected\twith  or
\n     arising out  of trade  must, at any
\n     race, amount  to something\t in  the
\n     nature   of   a   loss   which   is
\n     contemplable and in the nature of a
\n     commercial loss…..but  I\t do  not
\n     think it  is possible  to say  that
\n     when a fine, which is what it comes
\n     to\t has   been  inflicted\t upon  a
\n     trading body.  It can  be said that
\n     is\t “a   loss  connected\twith  or
\n     arising out  of” the  trade  within
\n     the meaning of this Rule.”<\/p><\/blockquote>\n
     This decision of Rowlatt, J. was cited with approval by
\nthe court  of Appeal  in the  case of  The Commissioners  of
\nInland Revenue\tvs. Alexander  Von Glehn  & Co., Ltd, 12 Tax
\nCases 232.  In that  case  Lord\t Sterndale  noted  that\t the
\nassessee was  a firm  of high  standing. A great part of its
\ntrade consisted\t in the\t exporting of  goods to\t Russia\t and
\nScandinavia Some  goods were  exported to  Russia at  a time
\nwhen the Customs (War Powers) Act, 1915 was in force and the
\ngoods of  the assessee\thad ultimately\tgone  to  the  enemy
\nterritory Proceedings  were  taken  for\t infraction  of\t law
\nbecause the assessee was not able to prove that he had taken
\nall reasonable steps to secure that the ultimate destination
\nof  the\t  goods\t was   the  destination\t  mentioned  in\t the
\ndeclaration. The  assessee agreed to pay a fine of  3000 and
\nnow the question was whether this amount padi as penalty was
\nadmissible as  deduction from  the income  of the assessee’s
\nCompany.\n<\/p>\n
     Lord Sterndale  held that\tthe customs proceedings were
\nnot technically criminal proceedings; but he stated.\n<\/p>\n
     “I do  not think that matters. They
\n     certainly are  proceedings in which
\n     a penalty\tis being sued for by the
\n     Attorney-General  as   representing
\n     the Crown, for an infraction of the
\n     law, whether  technically\tcriminal
\n     for the  purpose of appeal seems to
\n     me\t to  be\t immaterial.  The  money
\n     which is  paid is\tmoney paid  as a
\n     penalty, and  it does not matter in
\n     the least that the Attorney-General
\n     has  elected  to  take  treble  the
\n     value of  the goods,  nor\tdoes  it
\n     matter that it may be called in the
\n     Information a forfeiture.”<\/p><\/blockquote>\n
     Lord Sterdale  stated that\t it  was  a  hard  case\t and
\nobserved :\n<\/p>\n
     “It may  be so,  and  it  may  seem
\n     hard, because  it was  agreed  that
\n     there was no moral obliquity to use
\n     the expression which is used in all
\n     these cases,  to be  attributed  to
\n     the Appellants,  But is seems to me
\n     that those\t are  matters  which  we
\n     cannot  into   consideration,   and
\n     injustice\tto   both  the\t learned
\n     Counsel who argued the case for the
\n     Appellants, they  did not est their
\n     case upon\tany such  basis as that,
\n     but they  rested it  upon the broad
\n     principle that  it does  not matter
\n     whether the  expense is included it
\n     consequence of an infraction of the
\n     law or  whather it is a penalty for
\n     doing an illegal act. So long as it
\n     is\t something   which  reduces  the
\n     amount   which   comes   into   the
\n     trader’s pockets  as the  result of
\n     his trading.”<\/p><\/blockquote>\n
     Lord Sterndale has, however, held that the payments for
\ninfraction of  law could not called to be for the purpose of
\nthe trade. Relying upon the remarks of Lord Davey n the case
\nof Strong  vs. Woodifield  5 Tax Cases 215. It was held that
\nthe disbursements  permitted as\t deductions must  be for the
\npurpose\t of   the  trade.   It\twas   not  enough  that\t the
\ndisbursement was  made in  the course  of or arose out of or
\nwas connected  with the trade or was made out of the profits
\nof the trade.\n<\/p>\n
     Dealing with  the question\t that the disbursements were
\nconnected with the trade. Lord Sterndale observed:\n<\/p>\n
     “Of course,  as Mr. Justice Rowlatt
\n     said, in  a sense\tyou may say that
\n     it\t has  been  connected  with  the
\n     trade. because if the trade has not
\n     been carried  on the  penalty would
\n     not have  been incurred there would
\n     not have  been an\topportunity  for
\n     the breach\t of the\t law which  took
\n     place but in the sense in which the
\n     words are used in the Act. I do not
\n     think that\t this was connected with
\n     or\t arising   out\tof  such  trade,
\n     manufacture, adventure  or\t concern
\n     and still\tless do\t I think  hat it
\n     was a disbursement under the  First
\n     which  applies  to\t the  first  two
\n     cases, that  is to\t say. “money and
\n     exclusively laid  out  or\texpanded
\n     for   the\t  purposes    of    such
\n     trade”………….It is  perhaps a
\n     little   difficult\t  to   put   the
\n     distinction   into\t   very\t   exact
\n     language, but  there seems to me to
\n     be\t  a    difference   between    a
\n     commercial loss  in trading  and  a
\n     penalty imposed  upon a person or a
\n     company for  a breach  of\tthe  law
\n     which they\t have committed\t in that
\n     trading for  that\treason\tI  think
\n     that  both\t  the  decision\t of  Mr.
\n     Justice Rowlatt  in this  case  and
\n     his  former   decision  in\t  Inland
\n     Revenue Commissioners  v. Warnes 12
\n     T.C. 227,\twhich he  followed  were
\n     right,  and  I  think  this  appeal
\n     should be dismissed with costs.”<\/p><\/blockquote>\n
     Warrington.  L.D.\t who  agreed   with  Lord  Sterndale
\nobserved as under :\n<\/p>\n
     “Now it  cannot be\t said  that  the
\n     disbursement in the present case is
\n     made in  any way for the purpose of
\n     the trade\tor for\tthe  purpose  of
\n     earning the  profits of  the trade.
\n     The disbursement is made, as I have
\n     already said  and the  same  remark
\n     applied to\t this  Rule  as\t to  the
\n     Other because the individual who is
\n     conducting the  trade has\tnot from
\n     any   moral   obliquity   but   has
\n     unfortunately  been  guilty  of  an
\n     infraction of the law.”<\/p><\/blockquote>\n
     In the case of Cattermole (H.M. Inspector of Taxes) vs.
\nBorax &\t Chemicals Ltd\t31 Tax\tCases 202,  the question was
\nwhether fines  imposed in  the United States of America upon
\nthe company and upon its managing Directors for infringement
\nof anti\t trust legislation  of the  United State  of America
\nshould be  allowed as  deductions in computing the amount of
\nCompany’s profits.  The fine  was imposed  in  very  unusual
\ncircumstances. It  was doubtful\t whether the Company and its
\nManaging Director  could have  been  proceeded\tagainst\t the
\nAmerican Law  but they\tdecided to submit voluntarily to the
\njurisdiction of the California Court. It was done out of the
\nsupposed business  necessity because the English Company was
\nsubsidiary of  An American  Company. If\t the English Company
\nand its Managing Director alongwith the American Company did
\nnot submit  to the  jurisdiction of the California Court the
\nresult would  be that  its supplies  would have been stopped
\naltogether and\tit would  have been  unable to\tcarry on the
\nbusiness  with\t the  American\t Company.  the\tCompany\t was
\nextremely anxious to settlement. It was argued that it was a
\nmatter of  vital importance to the American Company that the
\nEnglish Company and Mr. Hatchley should appear in this suit.
\nThe matter  was ultimately  settled. One of the terms of the
\nsettlement was\tthat the English Company would pay a fine of
\n10,000 U.S.Dollars  and the  Managing Director\twould pay  a
\nfine of 6.000 US dollars.\n<\/p>\n
     The Commissioners\ttook the  view that  the amount\t was
\ndeductible as  business expenditure  because it\t was paid to
\nensure the  supplies. Croom-Johnson, J. held that the amount
\nwas not\t paid wholly  and exclusively  for the\tpurposes  of
\ncarrying on  the trade.\t It may have been one of the reasons
\nbut manifestly\tit was\tnot the\t only reason.  “One  of\t the
\nreasons was  to get as cheaply as possible a settlement with
\nthe  American\tauthorities,  paving  something\t by  way  of
\ncompromise-agreeing with  one’s adversary  while one is in a
\nway with him. That is really what happened hence.”\n<\/p>\n
     The Indian\t Courts have  also  consistently  held\tthat
\npayments tainted  with illegality cannot be treated as money
\nspent wholly  and exclusively for the purpose of business. A
\nlong line  of decisions\t was noted  in\tthe  judgment  under
\nappeal. It  is not  necessary to  refer to  all of  them. We
\nshall refer to three cases decided by this Court.\n<\/p>\n
     In the  case of  Hail Aziz\t and Abdul  Shakoor Bros. v.
\nCommissioner of\t Income Tax  Bombay City  II.<\/a> 41  ITR 350  a
\nbench of  three Judges\tof this Court held that the expenses
\nwhich were permitted as deduction were such as were made for
\nthe purpose  of carrying on the business. It was enough that
\nthe disbursements  are made in the course of or arose out of
\nor were\t connected with\t the  trade.  No  deduction  can  be
\nallowed if  the expenditure  fell on  the assessee  in\tsome
\ncharacter other\t than that  of a  trader. If a sum has to be
\npaid by\t an asseessee because in conducting his business, he
\nhad acted  in a manner which had rendered liable for penalty
\nfor infraction\tof  law,  it  could  not  be  claimed  as  a
\ndeduction because it could not be called in commercial sense
\nas incurred  in carrying  on the business. It was emphasised
\nin that judgment by Kapoor, J. that infraction of law is not
\na normal incidents of business.\n<\/p>\n
     The point that the expenditure incurred for the purpose
\nof unlawful  activity  must  be\t allowed  to  find  out\t the
\ncommercial profits  of the  Company was\t specifically argued
\nand raiected  in the  case of  The Commissioners  of  Inland
\nRevenue vs.  F.C.Warnes (supra). If a penalty is imposed for
\ncontravention of  any statutory\t provision it cannot be said
\nthat the  commercial loss  had fallen  on the  assessee as a
\ntrader. Illegal\t activity cannot  be created  as a tradition
\nactivity at  all. As  Lord Sterndale  held that\t it was\t not
\nenough that  the disbursement  was made\t in the course of or
\narose out of or was connected with the trade or was made out
\nof the\tprofits of the trade. Only if it could be shown that
\nit was spent for the purpose of the trade that the deduction
\ncan be permitted unless the entire trade was unlawful.\n<\/p>\n
     The case  of Haji\tAziz Abdul  Shakoor Bros. (supra) it
\nimportant for  another reason.\tIt was categorically held in
\nthis case  that no  distinction can  be made  in this regard
\nbetween a  personal liability  and a  liability of any other
\nkind. So  long as  the payment has to made for infraction of
\nlaw, it\t cannot be  said that  it  was\tmade  in  course  of
\ncarrying out of the trade.\n<\/p>\n
     In that  case of  Commissioner of\tIncome Tax  V.\tS.C.
\nKothari<\/a> 82  ITR 794.  It was  held that\t the loss  which had
\nactually been  incurred in carrying on a legal business must
\nbe deducted before the true figure relating to profits which
\nhad to be brought to tax could be computed or determined. If
\na business  was illegal,  neither the profits earned nor the
\nloss incurred  would be\t enforceable in law but that did not
\ntake the  profits our  of the  taxing stature. Similarly the
\ntaint of  illegality of\t the business could not detract from
\nthe loss  baing taken into account for computing the amounts
\nwhich had  to be  subjected to tax. The Tax Collector cannot
\nbe heard to say that he will bring the gross receipts to tax
\nhe could tax the profits of a trade or business. That cannot
\nbe done\t without taking the loss and the legitimate expenses
\nof the business.\n<\/p>\n
     In the  case of Commissioner of Income tax, West Bengal
\nv. H.Hirjee<\/a> 23 ITR 427, a bench of four Judges of this Court
\ndealt with  a case  of an  assessee who\t was carrying on the
\nbusiness as  selling agent  of a  Company, he was prosecuted
\nunder Section 13 of the Hoarding and Profiteering Ordinance,
\n1943 on\t a charge of selling the goods at prices higher than
\na reasonable  price in contravention of the provision of the
\nSection 6  of the  Act. A  part of  the stock  of goods\t was
\nseized and  taken away.\t The persecution  however, ended  in
\nacquittal. The\tassessee claimed deduction of a sum of money
\nspent in  defending  the  case.\t The  Income  Tax  Appellant
\nTribunal found\tthat the expenditure was incurred solely for
\nthe purpose  of maintaining  the assessee’s  name as  a good
\nbusinessman and\t to save  his stock  from being undersold if
\nthe  Court   held  that\t the  prices  charged  by  him\twere
\nunreasonable.  The   High  Court   rejected  the   reference
\napplication on\tthe ground that the decision of the Tribunal
\nwas based on finding of fact. On appeal this Court held that
\nthe findings of the Tribunal were vitiated by its failure to
\nconsider the possibility of criminal proceedings terminating
\nin the\tconviction and\timprisonment of the assessee. It was
\nheld that  the deductibility  such expenses must depend upon
\nthe purpose and nature of legal proceedings and could not be
\naffected by  the final\toutcome of  the proceedings.  It was
\nalso pointed  out that\tthe Income  Tax assessment had to be
\nmade for every years and could Tax assessment had to be made
\nfor year  and could not be held up until the final result of
\nthe legal  proceedings which pass through several Courts was
\nannounced.\n<\/p>\n
     In the  instant case,  the\t asseesee  had\tindulged  in
\ntransactions  in  violation  of\t the  provision\t of  Foreign
\nExchange (Regulation)  Act.  The  assessee’s  plea  is\tthat
\nunless it  entered into\t such a\t transaction, it  would have
\nbeen unable  to dispose\t of the\t unsold\t stock\tof  inferior
\nquality of  tobacco. Another  words, the assessee would have
\nincurred a loss.  Spur of loss cannot be a justification for
\ncontravention of  law. The  assessee was  engaged in tobacco
\nbusiness.  The\tasseessee  was\texpected  to  carry  on\t the
\nbusiness in accordance with law. If the asseesee contravenes
\nthe provision  of FERA\tto cut\tdown its  losses or  to make
\nlarger profits\twhile carrying\ton the business, it was only
\nto be  expected that  proceedings will\tbe taken against the
\nasseesee for  violation of the Act. The expenditure incurred
\nfor evading  the provisions  of the Act and also the penalty
\nlevied for  such evasion  cannot be allowed as deduction. As
\nwas laid down by Lord Sterndale in the case of Alexander Von
\nGlehn (supra)  that it\twas not enough that the disbursement
\nwas made  in the course of trade. It must be for the purpose
\nof the trade. The purpose must be a lawful purpose.\n<\/p>\n
     Moreover, it will be against public policy to allow the
\nbenefit of  deduction under  one statute  of any expenditure
\nincurred in  violation of  the provisions another stature or
\nany penalty  imposed under  another statute.  In the instant
\ncase, if  the deductions  claimed  are\tallowed,  the  penal
\nprovisions of  FERA will  become meaningless. It has also to
\nbe borne  in mind  that evasion\t of law\t cannot be  a  trade
\npursuit. The expenditure in this case cannot, in any way, be
\nallowed as  wholly in  this case  cannot,  in  any,  way  be
\nallowed as  wholly and\texclusively laid out for the purpose
\nof assessee’s business.\n<\/p>\n
     We are in agreement with the view expressed by the High
\nCourt in  this case.  The appeal is dismissed. There will be
\nno order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Maddi Venkataraman & Co. (P) … vs The Commissioner Of Income Tax on 2 December, 1997 Author: Sen Bench: Suhas C. Sen, S. Saghir Ahmad PETITIONER: M\/S. MADDI VENKATARAMAN & CO. (P) LTD. Vs. RESPONDENT: THE COMMISSIONER OF INCOME TAX DATE OF JUDGMENT: 02\/12\/1997 BENCH: SUHAS C. SEN, S. SAGHIR […]<\/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-126033","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. Maddi Venkataraman & Co. 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