{"id":133243,"date":"1986-07-31T00:00:00","date_gmt":"1986-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-the-elgin-mills-ltd-kanpur-on-31-july-1986"},"modified":"2016-03-16T18:50:27","modified_gmt":"2016-03-16T13:20:27","slug":"commissioner-of-income-tax-vs-the-elgin-mills-ltd-kanpur-on-31-july-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-the-elgin-mills-ltd-kanpur-on-31-july-1986","title":{"rendered":"Commissioner Of Income Tax, … vs The Elgin Mills Ltd., Kanpur on 31 July, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Income Tax, … vs The Elgin Mills Ltd., Kanpur on 31 July, 1986<\/div>\n
Equivalent citations: 1986 AIR 1943, \t\t 1986 SCR (3) 398<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nCOMMISSIONER OF INCOME TAX, KANPUR\n\n\tVs.\n\nRESPONDENT:\nTHE ELGIN MILLS LTD., KANPUR\n\nDATE OF JUDGMENT31\/07\/1986\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nPATHAK, R.S.\n\nCITATION:\n 1986 AIR 1943\t\t  1986 SCR  (3) 398\n 1986 SCC  (3) 663\t  JT 1986     7\n 1986 SCALE  (2)112\n\n\nACT:\n     Companies (Profits)  Surtax Act,  1964, Schedule 2 Rule\nI-\"Investment reserve\",\t \"rehabilitation reserve\",  \"capital\nreserve\", \"depreciation\t reserve\" and \"forfeited dividends\"-\nWhether\t statutory   deductions-\"provision\"  and  \"reserve\"-\nDistinction between.\n\n\n\nHEADNOTE:\n     In Civil  Appeal No.  1665 of  1974,  a  dispute  arose\nbetween the  respondent-assessee and the Revenue with regard\nto  the\t computation  of  \"standard  deductions\"  under\t the\nprovision of  Companies\t Profits  (Surtax)  Act,  1964.\t The\nrespondent-assessee  claimed   that  the  three\t amounts  in\nrespect of  three accounts,  namely, (a)  investment reserve\n(b)  rehabilitation   reserve  and  (c)\t forfeited  dividend\nreserve should\tbe treated  as reserves\t for the purposes of\ncomputation of\tits capital  for the assessment year 1964-65\nof which  the relevant\tprevious year  ended on\t 30th Sept.,\n1963. The Income-tax officer did not include any of the said\n\"reserves\" in  the capital  of the respondent company on the\nbasis that  these did  not represent  \"reserve\" in  the real\nsense. The  matter, ultimately\twent before the Tribunal. It\nheld: (i) that all the three accounts represented \"reserves\"\nfor the\t purposes of  assessment under the Super Profits Tax\nAct, 1963  and as  the principle  involved was\tthe same  as\nunder the Companies Profits (Surtax) Act, 1964, the accounts\nin question  represented \"reserves\"  under  the\t latter\t Act\nalso. The  High Court  also, relying on its earlier decision\nin Commissioner\t of  Income-tax,  Kanpur  v.  British  India\nCorporation (P)\t Ltd.<\/a> 92 TIRE 38, affirmed the view taken by\nthe Tribunal  and held (i) that under both the Acts charging\nsections  (s.\t4)  were   identically\tworded\texcept\tthat\nexpression(Standard Deduction)\tin Super  Profits  Tax\tAct,\n1963  had   been  replaced   by\t the  expression  \"statutory\ndeductions\" in\tCompanies Profits  (Surtax) Act,  1964; (ii)\nthat under  both Acts  these deductions\t had to\t be computed\nwith reference\tto the\tcapital employed  in the assessee's-\nCompanies; and\t(iii) that  under both\tthe Acts reserves of\nthe company  were to  be treated as its capital and the only\ndifference was in the\n409\nSecond Schedule\t to the Companies Profits (Surtax) Act, 1964\nwhere an  A explanation had been added, and this explanation\nmerely clarified  what was  implicit in the Super Profit Tax\nAct, 1963.\n     In C.A.  No. 145  of 1976\tthe assessee-respondent\t had\nshown capital  of Rs.2,63,79,218  which included  inter-alia\ninvestment reserve, rehabilitation reserve, capital reserve,\ndepreciation reserve and forfeited dividends. The High Court\nheld that  the first four items constituted reserves and the\nforfeited dividends account did not represent reserve.\n     Dismissing the C.A. No. 145 of 1976 and allowing CA No.\n1665 of 1974 in part,\n^\n     HELD: 1.1\tThe conclusion\tof the High Court in CA 1665\nof  1974   holding   that   the\t  investment   reserve\t and\nrehabilitation reserve were reserves and were entitled to be\ntreated so  under the  relevant Act  is right.\tBut, in\t the\nfacts of  the case,  the High Court was not right in holding\nthat the  \"forfeited dividend reserve\" was reserve. However,\nin CA  No. 145\tof 1976, the Tribunal and the High Court had\nrightly\t excluded  \"forfeited  dividend\t account\"  from\t the\nreserve. [417G-H; 418D]\n     2.1 The  Supreme Court in Vazir Sultan Tobacco Co. Ltd.\nv. Commissioner of Income Tax<\/a> [1981] 132 TIRE, 559 held that\nthe expression\t\"reserve\" in Super Profits Tax Act, 1963 and\nthe  Companies\tProfits\t (Surtax)  Act,\t 1964  are  in\tpari\nmateria. [413C-D]\n     2.2 The  distinction between  \"provision\" and \"reserve\"\nis while  the \"provision\"  is a\t charge of profits which are\ntaken into  account in the gross receipt of Profits and Loss\nAccount, \"reserve\"  is an appropriation of profit to provide\nfor the asset which it represented. Reserve might be general\nor specific  reserve, what  is required\t is that  the amount\nshould be  kept apart  for one\tor the\tother purpose either\ngeneral or  specific. The  distinction between provision and\nreserve must  be found out bearing in mind the main features\nof the\treserve. These\tare: (i) it must be an appropriation\nof profits,  current or accumulated and not a charge against\nthe profits  for the  year; (ii)  the conduct of the parties\nmust bear  out that  intention; (iii)  it must not be to set\napart to meet any known liability-a liability known to exist\non the date of the balancesheet. [416A-C]\n     In the  instant cases,  keeping in\t view the  aforesaid\ntests, invest-\n410\nment reserve,  rehabilitation reserve,\tcapital reserve\t and\ndepreciation reserve constituted \"reserves\" and are entitled\nto be  treated as such under Companies Profits (Surtax) Act,\n1964. The \"forefeited dividends\" do not represent \"reserve\".\n[417G-H; 418A-B]\n     Vazir Sultan Tobacco Co. Ltd. v. Commissioner of Income\nTax,<\/a> [\t]981] 132  ITR 559;  Metal  Box\t Co.  Ltd  v.  Their\nWorkmen,<\/a> 73  ITR 53 at 67-68; and Commissioner of Income Tax\n(Central) Calcutta v. Standard Vaccum<\/a> oil Co., 59 ITR 685 at\n698 relied upon.\n     Commissioner of  Income-tax, Kanpur  v.  British  India\nCorporation (P) Ltd.,<\/a> 92 ITR 38 approved.\n     Commissioner of  Income Tax  v. Eyre  Smelting  Private\nLtd., 118 ITR 857 referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1665 of
\n1974<\/span>
\n     From the  Judgment and  order dated  28.9.1973  of\t the
\nAllahabad High Court in I.T. Reference No. 195 of 1971.\n<\/p>\n
     With Civil Appeal No. 145 of 1976.\n<\/p>\n
     Dalip Singh,  K.C. Dua  and Miss  A. Subhashini for the
\nAppellant.\n<\/p>\n
     Harish Salve,  K.J. John,\tRanjit Kumar  and B.P. Singh
\nfor the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SABYASACHI MUKHARJI,  J. These  two appeals  were heard
\ntogether. Civil\t Appeal No.  1665 of  1974 arises  from\t the
\ndecision of  the  High\tCourt  of  Allahabad  in  Income-Tax
\nReference No. 195 of 1971.\n<\/p>\n
      The  assessee, Elgin Mills Ltd., at the relevant time,
\nwas a  public limited  company engaged\tin the\tbusiness  of
\nmanufacture of\ttextile goods.\tThe assessment year involved
\nis the\tyear 1964-65  of which\tthe relevant  previous\tyear
\nended  on   30th  September,   1963.  For  the\tpurposes  of
\nassessment  under   the\t provisions   of  Companies  Profits
\n(Surtax) Act, 1964, a dispute arose between the assessee and
\nthe revenue  with regard  to the  computation  of  “Standard
\ndeductions”. The  company claimed that the following amounts
\nshould be treated as
\n411<\/span>
\nreserves for the purposes of computation of its capital:\n<\/p>\n
\t  (a) Investment Reserve-Rs.85,00,000<\/p>\n
\t  (b) Rehabilitation reserve-Rs.40,00,000\n<\/p><\/blockquote>\n
\t  (c) Forfeited Dividend reserve-Rs.96,374
\n     The Income-tax  Officer did not include any of the said
\n‘reserves’ in  the capital  of the  assessee-company on\t the
\nbasis that  these did  not represent  reserve  in  the\treal
\nsense. On  appeal, the Appellate Assistant Commissioner held
\nthat the  Rehabilitation  reserve  and\tForfeited  Dividends
\nreserve represented  reserves  but  the\t investment  reserve
\naccount did  not constitute  real reserve. Both the assessee
\nas well\t as  the  revenue  went\t up  in\t appeal\t before\t the
\nTribunal. The  Tribunal\t disposed  of  these  appeals  by  a
\nsimilar order along with two similar appeals relating to the
\nassessment year 1963-64 which arose out of proceedings under
\nthe Super  Profits Tax Act, 1963. The Tribunal held that all
\nthe three  accounts represented reserves for the purposes of
\nassessment under  the  Super  Profits  Tax  Act,  1963.\t The
\nTribunal  was  further\tof  the\t view  that  all  the  three
\nrepresented reserves  for the  purposes of  assessment under
\nthe Super  Profits  Tax\t Act,  1963  and  as  the  principle
\ninvolved  was  the  same  as  under  the  Companies  Profits
\n(Surtax) Act,  1964, the  Tribunal held that the accounts in
\nquestion represented  reserves under the latter Act also. At
\nthe instance  of the Commissioner, reference was made to the
\nHigh Court  for the assessment year 1964-65 on the following
\nquestions:\n<\/p><\/blockquote>\n
\t  “1. Whether, on the facts and in the circumstances
\n\t  of the case, the tribunal was right in arriving at
\n\t  its decision\tby applying the principles laid down
\n\t  in the  second schedule  to the  Super Profits Tax
\n\t  Act, 1963, instead of the provisions of the second
\n\t  Schedule to  the Companies  Profits (Surtax)\tAct,
\n\t  1964, for  computation of  capital of the assessee
\n\t  company for the assessment year 1964-65.\n<\/p><\/blockquote>\n
\t  2. Whether,  on the  facts and in the circumstance
\n\t  of the  case, the  tribunal was  right in  holding
\n\t  that (a)  Investment\tReserve\t (b)  Rehabilitation
\n\t  reserve  (c)\t Forfeited  Dividend   Reserve\twere
\n\t  includible  in  the  capital\tcomputation  of\t the
\n\t  company in  accordance with the second schedule to
\n\t  the Companies Profits (surtax) Act, 1964.”<\/p><\/blockquote>\n<\/blockquote>\n
412<\/span><\/p>\n
     The High  Court noted  that in  the connected reference
\nNo. 196\t of 1971-Commissioner  of Income-tax  v. Elgin Mills
\nCompany Ltd.<\/a>  (decision dated  19th July, 1973)) arising out
\nof proceedings under the Super Profits Tax Act, 1963, it had
\nalready held  that these  accounts in  question\t constituted
\nreserve in  the real  sense and as such should be taken into
\nconsideration in  determining the  standard deductions under
\nsection 9(2)  of the  Act, 1963.  It was not disputed before
\nthe High  Court that if the present reference had been under
\nthe Super  Profits Tax\tAct, 1963,  the accounts in question
\nwould have  to be held as reserves by the High Court in view
\nof its\tprevious judgment.  But it  was contended  that\t the
\nprovisions of  the Companies Profits (Surtax) Act, 1964 were
\ndifferent from\tthe provisions\tof the Super Profit Tax Act,
\n1963. The  High Court  did not\taccept this  contention. The
\nHigh Court  was of  the\t view  that  under  both  the  Acts,
\ncharging sections (section 4) were identically worded except
\nthat the  expression “standard\tdeduction” in  Super Profits
\nTax Act, 1963 had been replaced by the expression “statutory
\ndeductions” in\tthe Companies  Profits (Surtax)\t Act,  1964.\n<\/p><\/blockquote>\n
Under both  Acts these\tdeductions had\tto be  computed with
\nreference to  the capital  employed in the assessee company.
\nUnder both  the Acts  reserves of  the company\twere  to  be
\ntreated as  its capital\t and the  only difference was in the
\nsecond schedule to the Companies (Profits) Surtax Act, 1964,
\nan explanation\thad been  added. The said explanation was to
\nthe following effect:\n<\/p>\n
\t  “For the  removal of\tdoubts it is hereby declared
\n\t  that any  amount standing  to the  credit  of\t any
\n\t  account in  the books of a company as on the first
\n\t  day  of   the\t previous   year  relevant   to\t the
\n\t  assessment year which is of the nature of item (5)
\n\t  or  item   (6)  or  item  (7)\t under\tthe  heading
\n\t  “RESERVES AND\t SURPLUS” or  of any  item under the
\n\t  heading “CURRENT  LIABILITIES AND  PROVISIONS”  in
\n\t  the column  relating to  “Liabilities” in the Form
\n\t  “Balance Sheet”  given in part I of Schedule VI to
\n\t  the Companies\t Act, 1956 (I of 1956), shall not be
\n\t  regarded  as\t a  reserve   for  the\tpurposes  of
\n\t  computation of  the capital of a company under the
\n\t  provision of this schedule.”<\/p><\/blockquote>\n
     This  explanation,\t  the  High   Court  noted,   merely
\nclarified what\twas implicit  in the  Super Profit  Tax Act,
\n1963. Item  No. S  in the prescribed Balance Sheet under the
\nCompanies Act is “Surplus ‘ i.e.
\n     Balance in\t profit and loss account after providing for
\nproposed alloca-\n<\/p>\n
413<\/span><\/p>\n
tions, namely,\tDividend, Bonus,  or Reserves.\tItem No. (6)
\nwas “Proposed  additions to  reserves” and  item No. (7) was
\n“Sinking Funds”.  The Accounts\tmentioned in the explanation
\nwould not form a reserve for the purposes of the computation
\nof capital  of a  company. In any case the High Court was of
\nthe view that none of the accounts in dispute fell under the
\nheading “current  liabilities”. It  was contended before the
\nHigh Court on behalf of the revenue that any amount credited
\nto those  accounts during  the relevant\t previous year would
\nfall in\t item No. 6 viz. proposed additions to reserves. The
\nHigh Court found that there were no additions to those funds
\nduring the  relevant previous  year inasmuch  as the  amount
\nstanding in  those accounts  were being brought forward from
\nyear to\t year. In those circumstances the Tribunal was right
\nin deciding the question with regard to the admissibility of
\nthe three  accounts in question on the principle application
\nto Super  Profits Tax  Act, 1963. This Court in Vazir Sultan
\nTobacco Co.  Ltd. v.  Commissioner of Income Tax,<\/a> [1981] 132
\nI.T.R. 559  held that  the expression  “reserve’.  in  Super
\nProfits Tax  Act, 1963\tand the\t Companies Profits  (Surtax)
\nAct, 1964 are in pari materia.\n<\/p>\n
     On merits,\t it was\t agreed that the points were covered
\nby the\tprevious decision  of the  High Court in the case of
\nCommissioner  of   Income-tax,\tKanpur\t v.  British   India
\nCorporation (P)\t Ltd.,<\/a> 92  I.T.R. 38.  Accordingly, the High
\nCourt answered\tboth the questions in the affirmative and in
\nfavour of  the assessee.  This appeal arises out of the said
\ndecision of  the High  Court. In Commissioner of Income-tax,
\nKanpur v.  British India  Corporation (P)  Ltd.<\/a> (supra), the
\nHigh Court  noted the  distinction between  ‘provision’\t and
\n‘reserves’ and\tobserved that  when an\tamount was set apart
\nfor a  future liability, it was called a reserve and when it
\nwas set apart to meet an existing liability, it was called a
\nprovision. The\tHigh Court was of the view that the Tribunal
\nin that\t case was  right in  holding that  capital  reserve,
\nstocks and stores reserves, bad and doubtful debts reserves,
\nobsolescence  reserve,\tloans  and  insurance  reserves\t and
\ninvestment reserves  were to  be included in the computation
\nof  capital.  The  Tribunal  was  not  right  in  including,
\naccording to  the High Court, forfeited money reserve as the
\nassessee had  been transferring\t to this  account  dividends
\nwhich had not been collected by the share holders after they
\nhad been  declared, and\t as and when the shareholders made a
\nclaim, made  payments and  debited the\tsame to the account.
\nThe High Court, therefore, was of the view that this account
\nrepresented a provision in respect of an existing liability.\n<\/p>\n
     The High  Court in Income-Tax Reference No. 196 of 1971
\nhad to
\n414<\/span>
\ndeal with investment reserve account, rehabilitation reserve
\naccount, capital  reserve account  and depreciation  reserve
\naccount and  held that\tthese were  reserves but the account
\nmaintained as dividend account did not represent reserve.\n<\/p>\n
     The High  Court in\t its judgment noted that on the 19th
\nJuly 1973  relying on other judgment in Income-Tax Reference
\nNo. 200\t of 1917  Commissioner of  Income-Tax v.  The  Saran
\nEngineering Co.\t Ltd.<\/a> had  answered the\t question by  saying
\nthat the aforesaid items were re serves. This is the subject
\nmatter of  civil appeal\t No. 1599 of 1974 which will also be
\ndisposed of by another judgment of this Court.\n<\/p>\n
     Civil Appeal  No. 1665 of 1974 and Civil Appeal No. 145
\nof 1976\t which arose out of the Income-Tax Reference No. 196
\nof 1971\t have been  heard together and are being disposed of
\nby this judgment.\n<\/p>\n
     In this  connection it would be desirable to dispose of
\nCivil Appeal  No. 145  of  1976\t separately  first.  It\t was
\nsubmitted  that\t  the  assessee\t  had\tshown\tcapital\t  of
\nRs.2,63,79,218\twhich\tincluded  the\taforesaid   reserves
\nincluding  investment\treserves,  rehabilitation   reserve,
\ncapital\t reserve,   depreciation   reserve   and   forfeited
\ndividends. The\tsubmission on  behalf of the revenue by Sree
\nDalip Singh  was that  the amount  of  Rs.85  lakhs  in\t the
\nrelevant year  as investment  reserve was  set apart  by the
\nassessee company  to meet the liabilities of its Bombay Sub-
\nsidiaries, M\/s\tMadhav Mills Ltd. and Calico Processors Ltd.
\nwhich were known to the assessee on the date of the balance-
\nsheet. The Directors’ report, according to the revenue, left
\nno room\t for doubt that these were anticipated losses of the
\nassessee company  in the form of the investments made in its
\nBombay subsidiaries  known at the date of the balance sheet.
\nThese were  liabilities, according  to Sree  Singh  actually
\nstaring in the face of the assessee company when it prepared
\nthe balance  sheet. The\t Tribunal had  held that  it  was  a
\nreserve because it was formed by transfer of the amount from
\ncapital\/General reserve.  This\taccording  to  the  revenue,
\ncould not  be accepted.\t Revenue submitted  that  it  was  a
\ncommon ground  that originally\tthe amount was set apart out
\nof the\tundistributed mass  of\tprofits\t and  therefore\t the
\nmoment it  was taken  out of the capital or general reserve,
\nit ceased  to be  a capital  or general reserve, and but for
\nits  being   set  apart\t to  meet  the\tliabilities  of\t its
\nsubsidiaries, it  had again gone back and formed part of the
\nundistributed  mass  of\t profits  and  thereby\tassumed\t its
\noriginal character.  It was  submitted that  the reserve  in
\norder that  it might  be so  called in the real sense of the
\nterm must come out of the profits of the
\n415<\/span>
\ncompany. But  if reserves  were constituted  out  of  assets
\nwhich were  sold A  or\tby  any\t other\tmeans  it  would  be
\ndifficult to  term the\tamounts shown  as  reserve.  It\t was
\nsubmitted that\tthe investments\t by the\t assessee company in
\nthe Bombay  subsidiaries were  in  the\tnature\tof  bad\t and
\ndoubtful debts.\t Therefore, these  were dead  losses of\t the
\nassessee company  as the  holding company, and these amounts
\nwere ultimately\t bound to  be writ- ten off and according to
\nthe  revenue’s\tsubmission,  the  substance  of\t the  matter
\nclearly was that the amount of RS.85 lakhs though shown as a
\nreserve, was,  in fact,\t a provision to meet the anticipated
\nlosses or bad and doubtful debts in the shape of investments
\nin the\ttwo subsidiaries  aforesaid which  were shown at the
\ndate of the balance sheet.\n<\/p>\n
     For the  assessee Sree  Salve drew our attention to the
\ndistinction between  reserve and  provision which  has\tbeen
\ndiscussed in  the decision  of this  Court in  Metal Box Co.
\nLtd. v. Their Workmen,<\/a> 73 I.T.R. 53 at 67-68.\n<\/p>\n
     According to  the revenue, the nature and object of the
\nsubsidiary companies  have  to\tbe  kept  in  view  and\t the
\npractical result,  revenue contended before us, was that the
\nshareholders of\t the holding company whose share capital had
\nbeen employed for the floatation of the subsidiary companies
\nhad not\t only no  power\t to  control  the  dealings  of\t the
\nsubsidiary companies  but in  fact had\tno knowledge of, nor
\nany right  to the knowledge of or dealings of the subsidiary
\ncompanies.\n<\/p>\n
     The expressions  ‘Provision’ and  ‘Reserve’ are defined
\nin Schedule  VI Part  III to the Companies Act, 1956. In the
\ndecision of this Court in Vazir Sultan’s case (supra) it has
\nbeen held  that a  provision was  meant to  provide for\t any
\nknown liability\t and the  substance of\tthe matter had to be
\nkept in\t view. It  was further\tsubmitted by Sree Singh that
\nthe depreciation  reserve could\t not  be  considered  to  be
\nreserve in  the\t real  sense  at  all.\tForfeited  dividends
\nreserve of R.S.. 1,08,771 had to be a provision.\n<\/p>\n
     On the  other hand,  on behalf  of the  revenue, it was
\nsubmitted that in order to constitute reserve, there must be
\nan appropriation of profits current or accumulated and not a
\ncharge against\tthe profits  for the  year. The conduct must
\nbear out  the intention\t to create a reserve. It must not be
\nto set\tapart to meet any known liability, a liability known
\nbut  existing\ton  the\t  date\tof  the\t balance-sheet.\t The
\nexplanation ‘reserve’  has been defined in the text books of
\nAccountancy which has been noted by this Court. It was urged
\nthat it could not be disputed
\n416<\/span>
\nthat reserve  might be general or specific reserve, what was
\nrequired was that amount should be kept aprat for one or the
\nother purpose  either general  or specific.  The distinction
\nbetween provision  and reserve\tmust be found out bearing in
\nmind main  features of the reserve. These are (1) It must be
\nan appropriation  of profits, current or accumulated and not
\na charge  against the  profits for the year. (2) The conduct
\nof the parties must bear out that intention. (3) It must not
\nbe to  set apart  to meet  any known  liability-a  liability
\nknown to  exist on  the date of the balance sheet. Reference
\nin this\t connection may\t be made to the observations of this
\nCourt in  Vazir Sultan’s  case (supra)\tat pages 569-70. The
\nCalcutta High  Court in\t Commissioner of  Income Tax v. Eyre
\nSmelting  Private   Ltd.,  118\t I.T.R.\t  857,\t noted\t the
\ncharacteristics of  ‘provisions’ as  well as  ‘reserves’. It
\nheld,  inter   alia,  that   provisions\t were  made  against
\nanticipated losses  and contingencies,\tit held further that
\nan amount  set aside  of the  profits  designed\t to  meet  a
\ncontingency or\tliability or commitment or diminution in the
\nvalue of  the assets  known to exist would be a reserve, and
\nan amount  set aside  to provide  for a\t known liability  to
\nwhich the  amount  cannot  be  determined  with\t substantial
\naccuracy would\tbe a provision. The said High Court differed
\nfrom the  decision of  the Allahabad  High Court  in British
\nIndia Corporation  (P) Ltd.  (supra) in\t respect of ‘bad and
\ndoubtful debts.’  Whether in  respect of  bad  and  doubtful
\ndebts the  account could  be treated as reserve or provision
\nwould depend upon the facts and circumstances of the case.\n<\/p>\n
     The distinction  between ‘provision’  and ‘reserve’ has
\nbeen clarified\tby this\t Court in Metal Box Company of India
\nLtd. v. Their Workmen<\/a> (supra) at pages 67-68 which states as
\nfollows:\n<\/p>\n
\t  “The\tnext  question\tis  whether  the  amount  so
\n\t  provided  is\t a  provision\tor  a  reserve.\t The
\n\t  distinction between  a provision  and a reserve is
\n\t  in  commercial   accountancy\tfairly\twell  known.
\n\t  Provisions made  against  anticipated\t losses\t and
\n\t  contingencies are  charges  against  profits\tand,
\n\t  therefore, to\t be taken into account against gross
\n\t  receipts in  the P.  & L. account and the balance-
\n\t  sheet.  On   the   other   hand,   reserves\tare,
\n\t  appropriations of  profits, the  assets  by  which
\n\t  they are  represented being  retained to form part
\n\t  of  the   capital  employed\tin   the   business.
\n\t  Provisions are  usually shown in the balance-sheet
\n\t  by way of deductions from the assets in respect of
\n\t  which they  are made\twhereas general reserves and
\n\t  reserve  funds   are\tshown\tas   part   of\t the
\n\t  proprietor’s interest
\n417<\/span>
\n\t  (see\tSpicer\t and   Pegler’s\t  Book-keeping\t and
\n\t  Accounts, 15th  A Edition, page 42). An amount set
\n\t  aside out  of profits\t and  other  surpluses,\t not
\n\t  designed  to\t meet  a   liability,\tcontingency,
\n\t  commitment or\t diminution in value of assets known
\n\t  to exist  at the  date of  the balance-sheet\tis a
\n\t  reserve but an amount set aside out of profits and
\n\t  other\t surpluses   to\t pro-  vide  for  any  known
\n\t  liability of which the amount cannot be determined
\n\t  with substantial  accuracy is\t a  provision:\t(see
\n\t  William Pickles  Accountancy, second\tedition,  p.
\n\t  192; Part  III,  clause  7,  Schedule\t VI  to\t the
\n\t  Companies Act,  1956: which  defines provision and
\n\t  reserve).”<\/p><\/blockquote>\n
     This Court\t in Commissioner  of  Income  Tax  (Central)
\nCalcutta v.  Standard Vaccum<\/a>  oil Co., 59 I.T.R. 685 at 698,
\nobserved that the ordinary meaning of the expression reserve
\nwas something specifically kept apart for further use or for
\nspecific occasion.  The observations  made therein will have
\nto be understood in the light of the subsequent decisions of
\nthis Court in Metal Box (supra) and Vazir Sultan (supra).\n<\/p>\n
     This Court\t in Vazir  Sultan Tobacco  Co. Ltd.  etc. v.
\nCommissioner  of  Income-tax  etc.  (supra)  considered\t the
\nexpression ‘reserve’  in the Super Profits Tax Act, 1963 and
\nCompanies (Profit)  Surtax Act, 1964. It is not necessary to
\nset out all the conclusions of this Court.\n<\/p>\n
     Our attention  was drawn  to Datta’s on the Company Law
\n(Third\tEdition)   at  page  42\t 1.  “Reserves”\t consist  of
\nappropriations from  profits and  other surplus and retained
\nfor future  use. This,\thowever, does not include any amount
\nwhich had  been kept  to meet any liability or diminution in
\nvalue of assets known to exist as on the date of the balance
\nsheet. The  essence and\t substance of  the matter  has to be
\nkept in view.\n<\/p>\n
     As\t  reiterated   before,\t the   distinction   between
\n‘provision’ and\t ‘reserve’ is  while the  ‘provision’  is  a
\ncharge of  profits which are taken into account in the gross
\nreceipt\t of   Profits  &   Loss\t Account,  ‘reserve’  is  an
\nappropriation of  profit to  provide for  the asset which is
\nrepresented.\n<\/p>\n
     Keeping these  tests and  the facts of these appeals in
\nmind, we  must hold that the conclusion of the High Court in
\nCivil Appeal  No. 1665\tof 1974\t holding that the investment
\nreserve and  rehabilitation reserve  were reserves  and were
\nentitled to  be treated\t so under the relevant Act is right.
\nBut in the facts of the case, the High Court was
\n418<\/span>
\nnot right in holding that the forfeited dividend reserve was
\nreserve and  question No.  2 also  in  the  affirmative.  It
\nshould have  followed in  this respect its previous decision
\nin respect  of forfeited dividend reserve in Commissioner of
\nIncome-Tax v. British India Corporation<\/a> (supra). The appeal,
\ntherefore fails,  except on the point of “Forfeited Dividend
\nReserve.”\n<\/p>\n
     In Civil  Appeal No. 145 of 1976, we are concerned with
\nfive   items   as   mentioned\ti.e.   investment   reserve,
\nrehabilitation\treserve,   capital   reserve,\tdepreciation
\nreserve and  forfeited dividends  and in  view of  the facts
\nfound,\twe   are  of  the  opinion  that  first\t four  items
\nconstituted reserves and were entitled to be treated as such
\nunder the  Act and the forfeited dividends did not represent
\nreserve. This  appeal accordingly fails in view of the facts
\nfound by  Tribunal and\treiterated by the High Court and the
\nprinciples applicable  as mentioned  hereinbefore. The\tHigh
\nCourt in its order had excluded “Forfeited dividend account”
\nfrom the reserve. The High Court was right in so doing.\n<\/p>\n
     In the facts and circumstances of the case, the parties
\nwill pay and bear their own costs in both the appeals.\n<\/p>\n
\t\t\t\t CA 1665\/74 allowed in part.\n<\/p>\n
M.L.A.\t\t\t\t\tCA 145\/76 dismissed.\n419<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Income Tax, … vs The Elgin Mills Ltd., Kanpur on 31 July, 1986 Equivalent citations: 1986 AIR 1943, 1986 SCR (3) 398 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: COMMISSIONER OF INCOME TAX, KANPUR Vs. RESPONDENT: THE ELGIN MILLS LTD., KANPUR DATE OF JUDGMENT31\/07\/1986 BENCH: MUKHARJI, SABYASACHI (J) […]<\/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-133243","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Income Tax, ... vs The Elgin Mills Ltd., Kanpur on 31 July, 1986 - 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\/commissioner-of-income-tax-vs-the-elgin-mills-ltd-kanpur-on-31-july-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of Income Tax, ... vs The Elgin Mills Ltd., Kanpur on 31 July, 1986 - 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