{"id":179877,"date":"1954-04-01T00:00:00","date_gmt":"1954-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lakshminarayan-ram-gopaland-son-vs-the-government-of-hyderabad-on-1-april-1954"},"modified":"2017-04-29T07:30:26","modified_gmt":"2017-04-29T02:00:26","slug":"lakshminarayan-ram-gopaland-son-vs-the-government-of-hyderabad-on-1-april-1954","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lakshminarayan-ram-gopaland-son-vs-the-government-of-hyderabad-on-1-april-1954","title":{"rendered":"Lakshminarayan Ram Gopaland Son … vs The Government Of Hyderabad on 1 April, 1954"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Lakshminarayan Ram Gopaland Son … vs The Government Of Hyderabad on 1 April, 1954<\/div>\n
Equivalent citations: 1954 AIR 364, \t\t 1955 SCR 393<\/div>\n
Author: N H Bhagwati<\/div>\n
Bench: Bhagwati, Natwarlal H.<\/div>\n
           PETITIONER:\nLAKSHMINARAYAN RAM GOPALAND SON LTD.\n\n\tVs.\n\nRESPONDENT:\nTHE GOVERNMENT OF HYDERABAD.\n\nDATE OF JUDGMENT:\n01\/04\/1954\n\nBENCH:\nBHAGWATI, NATWARLAL H.\nBENCH:\nBHAGWATI, NATWARLAL H.\nDAS, SUDHI RANJAN\nJAGANNADHADAS, B.\n\nCITATION:\n 1954 AIR  364\t\t  1955 SCR  393\n CITATOR INFO :\n RF\t    1954 SC 470\t (65)\n R\t    1957 SC 846\t (8,13)\n RF\t    1957 SC 852\t (31)\n F\t    1960 SC1269\t (6,7)\n R\t    1960 SC1279\t (8)\n MV\t    1966 SC 843\t (66)\n R\t    1966 SC1514\t (13)\n RF\t    1973 SC 637\t (9)\n RF\t    1977 SC1677\t (5)\n\n\nACT:\nMaster\tand Servant-Principal and Agent-Distinction  between\n-Hyderabad  Excess Profits Tax\tRegulation-Activities  which\nconstitute  business-Remuneration which constitutes  income,\nprofits or gains from business.\n\n\n\nHEADNOTE:\nThe  difference between the relations of master and  servant\nand  of\t principal  and\t agent may be said  to\tbe  this:  a\nprincipal has the right to direct what work the agent has to\ndo:  but  a master has the further right to direct  how\t the\nwork is to be done.\nThe  positions\tof  an\tagent,\ta  servant  and\t independent\ncontractor are distinguished as under:\nAn  agent  is  to be distinguished on the one  hand  from  a\nservant, and on the other from an independent contractor.  A\nservant acts under the direct control and supervision of his\nmaster,\t and  is bound to conform to all  reasonable  orders\ngiven  to  him\tin the course of his  work;  an\t independent\ncontractor,  on the other hand, is entirely  independent  of\nany control or interference and merely undertakes to produce\na specified result, employing his own means to produce\tthat\nresult.\t An agent, though bound to exercise his authority in\naccordance  with all lawful instructions which may be  given\nto him from time to time by his principal, is not subject in\nits  exercise  to the direct control or supervision  of\t the\nprincipal.   An\t agent,\t as such is not 9,  servant,  but  a\nservant is generally for some purposes his master's  implied\nagent, the extent of the agency depending upon the duties or\nposition of the servant.\nHeld,  that the position of the appellants in the  light  of\nthe  principles\t stated above and the terms  of\t the  Agency\nAgreement  was that of the agents of the Dewan\tBahadur\t Ram\nGopal Mills Ltd., and they carried on the general management\nof  the business of the company subject to the\tcontrol\t and\nsupervision of the Directors.\n394\nThe control and supervision of the Directors was, however, a\ngeneral\t control  and supervision and within the  limits  of\ntheir authority the appellants as the agents of the  company\nhad  perfect  discretion  as to how  that  work\t of  general\nmanagement was to be clone both in regard to the method\t and\nthe  manner of such work and therefore the circumstances  of\nthe  case  together  with the  of  power  of  sub-delegation\nreserved  under\t the  Articles\tof  Association\t established\nbeyond\tdoubt  that the appellants were the  agents  of\t the\ncompany\t and  not merely the servants of the  company  remu-\nnerated by wages or salary.\nHeld further, that various factors along with the fixity  of\ntenure, the nature of remuneration and the assignability  of\ntheir rights were sufficient to prove that the activities of\nthe  appellants as the agents of the company  constituted  a\nbusiness and the remuneration which the appellants  received\nfrom the company under the terms of the Agency Agreement was\nincome,\t profits or gains from business and  the  appellants\nwere  rightly  assessed under the  provisions  of  Hyderabad\nExcess Profits Tax Regulation.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 292 and 312
\nof 1950.\n<\/p>\n
Appeals\t from  the Judgment and Order of the High  Court  of
\nJudicature  at\tHyderabad (Ansari, Qamar Hasan\tand  Manohar
\nPershad JJ.) in Cases Nos. 180-181 of 1954 F.
\n Ved  Vyas, (S.\t K. Kapur and Ganpat Rai, with him) for\t the
\nappellant.\n<\/p>\n
M.   C. Setalvad, Attorney-General for India (Porus
\nA.   Mehta, with him) for the respondent.\n<\/p>\n
1954.  April 1. The Judgment of the Court was delivered by
\nBHAGWATI  J.-These  are two appeals from  the  judgment\t and
\ndecision  of  the  High Court  of  Judicature  at  Hyderabad
\nanswering certain questions referred at the instance of\t the
\nappellants  by\tthe  Commissioner  of  Excess  Profits\tTax,
\nHyderabad, and adjudging the liability of the appellants for
\nexcess profits tax in regard to the amounts recieved by them
\nas  remuneration from the Dewan Bahadur Ramgopal Mills\tCom-
\npany Ltd. as its Agents.\n<\/p>\n
The Mills Company was registered on the 14th February, 1920,
\nat Hyderabad in the then territories of His Exalted Highness
\nthe  Nizam.   The appellants were registered  as  a  private
\nlimited company at Bombay on
\n395<\/span>
\nagreement  was entered into between the Mills  Company.\t and
\nthe  appellants appointing the appellants its Agents  for  a
\nperiod\tof 30 years on certain terms and conditions  therein
\nrecorded.   The\t appellants throughout worked  only  as\t the
\nAgents of the Mills Company and for the Fasli years 1351 and
\n1352 they received their remuneration under the terms of the
\nAgency\tagreement.  A notice was issued under section 13  of
\nthe  Hyderabad Excess Profits Tax Regulation by\t the  Excess
\nProfits Tax Officer calling upon the appellants to pay\tthe,
\namount\tof tax appertaining to these chargeable\t account-  ,
\ning  periods.  The appellants submitted their  accounts\t and
\ncontended  that the remuneration received by them  from\t the
\nMills  Company was not taxable on the ground that it is\t was
\nnot  income, profits or gains from business and was  outside
\nthe  pale  of  the  Excess  Profits  Tax  Regulation.\tThis
\ncontention  of the appellants was negatived and on the\t24th
\nApril,\t1944, the Excess Profits Tax Officer made  an  order
\nassessing  the income of the appellants for  the  accounting
\nperiods\t 1351  and 1352 Fasli at Rs. 8,957  and\t Rs.  83,768
\nrespectively  and assessed the tax accordingly.\t  An  appeal
\nwas  taken by the appellants to the Deputy  Commissioner  of
\nExcess Profits Tax who disallowed the same.  An\t application
\nmade by the appellants under section 48(2) for statement  of
\nthe case to the High Court was rejected by the\tCommissioner
\nand the appellants filed a petition to the High Court  under
\nsection\t 48(3) to compel the Commissioner to state the\tcase
\nto  the High Court.  An order was made by the High,Court  on
\nthis  petition directing the Commissioner to state the\tcase
\nand  the statement of the case was submitted by the  Commis-
\nsioner\ton  the 26th February, 1946.   Four  questions\twere
\nreferred by the Commissioner to the High Courts as under:-
\n(1)  Whether the Petitioner Company is a partnership firm or
\na registered firm ?\n<\/p>\n
(2)  Whether under the terms of the agreement the petitioner
\nis  an\temployee  of the Mills Company\tor  is\tcarrying  on
\nbusiness ?\n<\/p>\n
396<\/span><\/p>\n
(3)Whether  the remuneration received from the MILLs  is  on
\naccount of service or is the remuneration for business ?
\n(4)Whether the principle of personal qualification  referred
\nto  in\tsection\t 2,  clause  (4),  of  the  Excess   Profits
\nRegulation is applicable to the Petitioner Company ?
\nThese  questions  were of considerable importance  and\twere
\nreferred  for decision to the Full Bench of the High  Court.
\nThe  Full Bench of the High Court delivered  their  judgment
\nthe  majority deciding the questions (2) and (3) which\twere
\nthe only questions considered determinative of the reference
\nagainst\t the  appellants.  The appellants  appealed  to\t the
\nJudicial Committee.  But before the Judicial Committee heard
\nthe  appeals  there  was  a merger  of\tthe  territories  of
\nHyderabad with India.  The appeals finally came for  hearing
\nbefore\tthe  Supreme Court Bench at Hyderabad  on  the\t12th
\nDecember,  1950, when an order was passed  transferring\t the
\nappeals to this Court at Delhi.\t These appeals have now come
\nfor hearing and final disposal before us.\n<\/p>\n
The  questions\t(1)  and  (4) which  were  referred  by\t the
\nCommissioner  to the High Court at Hyderabad have  not\tbeen
\nseriously  pressed before us.  Whether the appellants are  a
\npartnership  firm or a registered company the  principle  of
\nexclusion of the income from the category of business income
\nby reason of its depending wholly or mainly on the  personal
\nqualifications\tof the assessee would not apply because\t the
\nincome\tcould not be said to be income from  profession\t and
\nneither a partnership firm nor a registered company as\tsuch
\ncould be said to be possessed of any personal qualifications
\nin the matter of the acquisition of that income.
\nThe  principal questions which were therefore argued  before
\nthe High Court at Hyderabad and before us were the questions
\n(2) and (3) which involved the determination of the position
\nof  the appellants whether they were servants or  agents  of
\nthe Mills Company and the determination of the character  of
\ntheir remuneration whether it was wages or salary or income,
\nprofits or gains from business.\n<\/p>\n
397<\/span><\/p>\n
The appellants were registered as a private limited  company
\nhaving their registered office in Bombay and the objects for
\nwhich they were incorporated were the following:
\n(1)To  act as agents for Governments or Authorities  or\t for
\nany bankers, manufacturers, merchants, shippers, Joint Stock
\nCompanies  and\tothers\tand carry on  all  kinds  of  agency
\nbusiness.\n<\/p>\n
(2)To carry on in India and elsewhere the trade or  business
\nof  merchants, importers exporters in all’,  their  branches
\netc. etc…………\n<\/p>\n
Under  Article\t115 of the Articles of\tAssociation  of\t the
\nMills  Company\tthe  appellants\t and  their  assigns   were’
\nappointed  the\tagents\tof  the\t Company  upon\tthe   terms,\n<\/p>\n
-provisions and conditions set out in the Agreement referred
\nto  in clause 6 of the Company’s Memorandum of\tAssociation.
\nArticle\t 116  provided that the general\t management  of\t the
\nbusiness   of  the  Company  subject  to  the  control\t and
\nsupervision of the Directors, was to be in the hands of\t the
\nAgents\tof  the\t Company, who were to  have  the  power\t and
\nauthority on behalf of the Company, subject to such  control
\nand  supervision, to enter into all contracts and to do\t all
\nother\tthings\tusual,\tnecessary  and\tdesirable   in\t the
\nmanagement of the, affairs of the Company or in carrying out
\nits objects and were to have power to appoint and employ in,
\nor. for the purposes of the transaction and managment of the
\naffairs\t and business of the Company, or otherwise  for\t the
\npurposes thereof, and from time to time to remove or suspend
\nsuch  managers, agents, clerks and other employees  as\tthey
\nthought\t proper\t with such powers and duties and  upon\tsuch
\nterms\tas  to\tduration  of  employment,  remuneration\t  or
\notherwise  as they thought fit and were also to have  powers
\nto exercise all rights and liberties reserved and granted to
\nthem  by the said agreement referred to in clause 6  of\t the
\nCompany’s Memorandum of Association including the rights and
\nliberties contained in clause 4 of the agreement.  Article 1
\n18  authorised the agents to sub-delegate all or any of\t the
\npowers,\t authorities  and  discretions for  the\t time  being
\nvested in them, and in particular
\n398<\/span>
\nfrom  time  to\ttime to provide by  the\t appointment  of  an
\nattorney or attorneys, for the management and transaction of
\nthe  affairs  of the Company in any specified  locality,  in
\nsuch manner as they thought fit.\n<\/p>\n
The Agency agreement which was executed in pursuance of\t the
\nappointment under Article 115, provided that the  appellants
\nand their assigns were to be the Agents of the Company for a
\nperiod\tof  30 years from the date of  registration  of\t the
\nCompany\t and  they were to continue to act  as\tsuch  agents
\nuntil they of their own will resigned.\tThe remuneration  of
\nthe appellants as such Agents was to be a commission of\t per
\ncent  on the amount of sale proceeds of all yarn  cloth\t and
\nother produce of the Company (including cotton grown)  which
\ncommission was to be exclusive of any remuneration or  wages
\npayable to the bankers, Solicitors engineers, etc., who\t may
\nbe  employed  by  the appellants for or\t on  behalf  of\t the
\nCompany\t or for carrying on and conducting the\tbusiness  of
\nthe Company.  The appellants were to be paid in addition all
\nexpenses and charges actually incurred by them in Connection
\nwith  the.  business  of the  Company  and  supervision\t and
\nmanagement  thereof  and  the  appelants  were\tentitled  to
\nappoint\t any  person or persons in Bombay to  act  as  their
\nAgents in Bombay and any other places in connection with the
\nbusiness if the Company.\n<\/p>\n
Clauses\t 3 and 4 of the agency agreement are  important\t and
\nmay be set out in extenso :-\n<\/p>\n
3.   Subject   to  the\tcontrol\t and  supervision   of\t the
\nDirectors,  the said Lachminaravan Ramgopal and Son  Limited
\nshall  have  the  general  conduct  and\t management  of\t the
\nbusiness and affairs of the company and shall have on behalf
\nof  the company to acquire -by purchase lease  or  otherwise
\nlands  tenements and other Buildings and to  erect  maintain
\nalter  and  extend factores ware-houses,  engine  house\t and
\nother\tbuildings  in  Hyderabad  and’\telsewhere   in\t the
\nterritories  of His Exalted Highness the Nizam and in  India\n<\/p>\n
-and  to  purchase, pay for, sell,  resell,  and  repurchase
\nmachinery, engines, plant, raw cotton, waste, jute, wool and
\n399<\/span>
\nother fibres and produce, stores and other materials and  to
\nmanufacture  yarn  cloth and other fabrics and to  sell\t the
\nsame either in the said territories as well as elsewhere  in
\nIndia  and either on credit or for cash, or for\t present  or
\nfuture delivery, and to execute become parties to and  where
\nnecessary  to cause to be registered all deeds,\t agreements,
\ncontracts,  receipts and other documents and to\t insure\t the
\nproperty of the Company for such purposes and to such extent
\nand  in\t such  manner  as they\tmay  think  proper;  and  to
\ninstitute, conduct, defend, compromise, refer to arbitration
\nand abandon legal and other proceedings, claims and disputes
\nin which the Company is concerned and to appoint and  employ
\ndischarge, re-employ or replace engineers. managers,  retain
\ncommission  dealers, muccadums, brokers, clerks,  mechanics,
\nworkmen and other officers and servants with such powers and
\nduties\tand  upon  such\t terms\tas  to\tduration  of  office
\nremuneration  or  otherwise as they may think fit ;  and  to
\ndraw,  accept endorse, negotiate and sell Bills of  Exchange
\nand Hundies with or without security and to receive and give
\nreceipts for all moneys payable to or to be received by\t the
\ncompany\t and  to  draw cheques against\tthe  moneys  of\t the
\ncompany\t and generally to make all such arrangements and  do
\nall  such  acts\t and things on behalf of  the  Company,\t its
\nsuccessors  and assignsas may be necessary or expedient\t and
\nas  are\t not  specifically  reserved  to  be  done  by\t the
\nDirectors.\n<\/p>\n
4.The  said Lachminarayan Ramgopal & Son Ltd., shall  be  at
\nliberty\t to  deal  with the Company by way of  sale  to\t the
\nCompany\t of cotton all raw materials and  articles  required
\nfor  the  purpose of the Company and the purchase  from\t the
\nCompany of yarn cloth and all other articles manufactured by
\nthe  Company  and otherwise, and to deal with  any  firm  in
\nwhich  any  of the shareholders of  the\t said  Lachminarayan
\nRamgopal & Son Ltd., may be directly or indirectly concerned
\nprovided  always  such\tdealings are  sanctioned  passed  or
\nratified  by the Board of Directors either before  or  after
\nsuch dealings.\n<\/p>\n
Clause 8 provided that two of the members for the time being
\nof the appellants were at the option of the
\n400<\/span>
\nappellants to be the ex-officio Directors of the Company and
\nclause\t9 empowered the appellants to assign  the  agreement
\nand  the rights of the appellants thereunder subject to\t the
\napproval  and sanction of the Board to any person,  firm  or
\nCompany having authority by its constitution to become bound
\nby the obligations undertaken by the appeallants.
\nNo materials other than these ‘were placed by the appellants
\neither\tbefore the Income-tax Authorities or the High  Court
\nand the questions that arise before us have to be determined
\nonly  on these materials.  If on the construction  of  these
\ndocuments  we arrive at the conclusion that the position  of
\nthe  appellants was not that of servants but the  agents  of
\nthe Company the further question would have to be determined
\nwhether\t the  activities of the appellants amounted  to\t the
\ncarrying  on of business.  If they were not the servants  of
\nthe  Company,  the remuneration which  they  received  would
\ncertainly not be wages or salary but if they were agents  of
\nthe  Company the question would still survive whether  their
\nactivities amounted to the carrying on of business in  which
\ncase  only  the remuneration which they\t received  from\t the
\nCompany would be income, profits or gains from business.
\nThe  distinction  between  a servant and an  agent  is\tthus
\nindicated in Powell’s Law of Agency, at page 16 : —\n<\/p>\n
(a)Generally  a master can tell his servant what to  do\t and
\nhow to do it.\n<\/p>\n
(b)  Generally\ta  principal cannot tell his  agent  how  to
\ncarryout his instructions.\n<\/p>\n
(c)  A servant is under more complete control than an agent,
\nand also at page 20:-\n<\/p>\n
(a)Generally,  a servant is a person who not  only  receives
\ninstructions from his master but is subject to his  master’s
\nright  to control the manner in which -he carries out  those
\ninfructions.  An agent receives his principal’s instructions
\nbut  is\t generally  free to  carry  out\t those\tinstructions
\naccording to his own discretion
\n\t\t401<\/span>
\n  (B)\tGenerally, a servant, qua servant, has no  authority
\nto  make -contracts on behalf of his master’ Generally,\t the
\npurpose\t of employing an agent is to authorise him  to\tmake
\ncontracts on behalf of his principal.\n<\/p>\n
    (c)\t  Generally,  an  agent is paid by  commission\tupon
\neffecting  the\tresult which he has been instructed  by\t his
\nprincipal to achieve.  Generally, a servant is paid by wages
\nor salary.\n<\/p>\n
      The statement of the law contained in Halsbury’s\tLaws
\nof  England-Hailsham Edition-Volume 22, page 113,  paragraph
\n192 may be referred to in this connection :-\n<\/p>\n
      “The  difference between the relations of\t master\t and
\nservant and of principal and agent may be said to be this: a
\nprincipal has the right to direct what work the agent has to
\ndo:  but  a master has the further right to direct  how\t the
\nwork is to be done.”\n<\/p>\n
     The position is further clarified in Halsbury’s Laws of
\nEngland-Hailsham  Edition-,Volume 1, at page.  193,  article
\n345  where  the\t positions  of an agent,  a  a\tservant\t and
\nindependent contractor are thus distinguished : –\n<\/p>\n
     ” An agent is to be distinguished on the, one hand from
\na servant, and on the other from an independent\t contractor.
\nA  servant acts under the direct control and supervision  of
\nhis master, and is bound to conform to all reasonable orders
\ngiven  him  in\tthe  course  of\t his  work;  an\t independent
\ncontractor,  on the other hand, is entirely  independent  of
\nany  control  or  interference,\t and  merely  undertakes  to
\nproduce\t a  specified resulted employing his  own  means  to
\nproduce that result.  An ament, though bound to exercise his
\nauthority  in accordance with all lawful instructiOns  which
\nmay  be given to him from time to time by his principal,  is
\nnot  subject  in  its  exercise to  the\t direct\t control  or
\nsupervision  of the principal.\tAn -agent, as such is not  a
\nservant,  but a servant is generally for some  purposes\t his
\nmaster’s  implied agent, the extent of the agency  depending
\nupon the duties or position of the servant’ “Considering the
\nposition  of  the  appellants  in the  light  of  the  above
\nprinciples it is no doubt true that the
\n52<\/span>
\n402<\/span>
\nappellants  were  to act as the agents of  the\tCompany\t and
\ncarry  on  the\tgeneral management of the  business  of\t the
\nCompany\t subject  to  the control  and\tsupervision  of\t the
\nDirectors.  That does not however mean that they acted under
\nthe  direct  control  and supervision of  the  Directors  in
\nregard to the manner or method of their work.  The Directors
\nwere  entitled\tto lay down the general policy and  also  to
\ngive  such directions in regard to the management as may  be
\nconsidered necessary.  But the day to day management of\t the
\nbusiness of the Company as detailed in Article I 1 6 of\t the
\nArticles of Association and clause 3 of the Agency Agreement
\nabove  set out was within the discretion of  the  appellants
\nand apart from directing what work the appellants had to  do
\nas the agents of the Company the Directors had not conferred
\nupon  them the further right to direct how that work of\t the
\ngeneral\t management  was  to  be  done.\t  The  control\t and
\nsupervision  of\t the  directors was a  general\tcontrol\t and
\nsupervision  and  within the limits of their  authority\t the
\nappellants  as\tthe  agents  of\t the  Company  had   perfect
\ndiscretion as to how that work of general management was  to
\nbe done both in regard to the method and the manner of\tsuch
\nwork.\tThe appellants for instance had perfect latitude  to
\nenter into agreements and contracts for such purpose and  to
\nsuch extent and in such manner as they thought proper.\tThey
\nhad  the  power to appoint, employ, discharge,\treemploy  or
\nreplace\t the officers and servants of the Company with\tsuch
\npowers\tand  duties and upon such terms as  to\tduration  of
\noffice remuneration or otherwise as they thought fit.\tThey
\nhad  also the power generally to make all such\tarrangements
\nand to do all such things and acts on behalf of the Company,
\nas  might  be  necessary  or  expedient\t and  as  were\t not
\nspecifically  reserved to be done by the  Directors.   These
\npowers did not spell a direct control and supervision of the
\nDirectors  as of a master over his servant  but\t constituted
\nthe  appellants\t the  agents  of the  Company  who  were  to
\nexercise   their  authority  subject  to  the  control\t and
\nsupervision  of the Directors but were not subject  in\tsuch
\nexercise  to  the  direct  control  or\tsupervision  of\t the
\nprincipals.   The  liberty  given to  the  appellants  under
\nclause 4 of the Agency
\n403<\/span>
\nAgreement  to  deal  with the Company by  way  of  sale\t and
\npurchase of commodities therein mentioned also did not spell
\na  relation as between master and servant but empowered\t the
\nappellants  to deal with the Company as Principals in  spite
\nof  the\t fact that under clause 8 of the  Agreement  two  of
\ntheir  members for the time being were to be the  ex-officio
\nDirectors of the Company.  The power to assign the Agreement
\nand the rights of the appellants thereunder reserved to them
\nunder clause 9 of the Agency Agreement though subject to the
\napproval and sanction of the Board was hardly a power  which
\ncould  be vested in a servant.\tThere was further the  right
\nto continue in employment. as the agents, of the Company for
\na  period  of  30 years from the date  of  the\tregistration
\nthereof\t and  thereafter until the appellants of  their\t own
\nwill  resigned, which also would be hardly  consistent\twith
\nthe  employment\t of the appellants as mere servants  of\t the
\nCompany.  The remuneration by way of commission of 2-1\/2 per
\ncent.  of the amount of sale proceeds of the produce of\t the
\nCompany\t savoured  more\t of  the  remuneration\tgiven  by  a
\nprincipal  to his agent in the carrying out of\tthe  general
\nmanagement  of the business of the principal@ than of  wages
\nor salary which would not normally. be on such a basis.\t All
\nthese\tcircumstances  together\t with  the  power  of\tsub-
\ndelegation  reserved under Article 118 in our opinion go  to
\nestablish that the appellants were the agents of the Company
\nand  not merely the servants of the Company  remunerated  by
\nwages or salary.\n<\/p>\n
    Even  though  the  position of the\tappellants  qua\t the
\nCompany was that of agents and not servants as stated  above
\nit remains to be determined whether the work which they\t did
\nunder the Agency Agreement amounted to carrying on  business
\nso  as\tto constitute the remuneration which  they  received
\nthereunder  income,  profits or gains  from  business.\t The
\ncontention  which  was urged before us that  the  appellants
\nonly worked as the agents of the Mills Company and no others
\nand  therefore what they did did not constitute\t a  business
\ndoes  not avail the appellants.\t The activities in order  to
\nconstitute a business need not necessarily be concerned with
\nseveral. individuals or concerns.  They would constitute
\n404<\/span>
\nbusiness  in  spite of their being restricted  to  only\t one
\nindividual or concern.\tWhat is relevant to consider is what
\nis the nature and scope of these activities though either by
\nchance\tor  design  these might be restricted  to  only\t one
\nindividual or concern.\tIt is the nature and scope of  these
\nactivities  and not the extent of the operations  which\t are
\nrelevant for this purpose.\n<\/p>\n
     The activities of the appellants certainly did not come
\nwithin\tthe inclusive definition of business which is  given
\nin section 2 clause 4 of the Excess Profits Tax\t Regulation,
\nHyderabad.  Business is there defined to include any  trade,
\ncommerce or manufacture or any adventure in the ‘nature of a
\ntrade, commerce or manufacture or any profession or vocation
\nbut not to include a profession carried on by an  individual
\nor  by\tindividuals  in partnership if the  profits  of\t the
\nprofession depend wholly or mainly on his or their  personal
\nqualifications\tunless\tsuch profession consists  wholly  or
\nmainly in the making of contracts on behalf of other persons
\nor giving to other persons of advice of a commercial  nature
\nin connection with the making of contracts.  The work  which
\nthe  appellants did under the terms of the Agency  Agreement
\nconstituted  neither trade, commerce or manufacture  or\t any
\nadventure:  in the nature of trade, commerce or\t manufacture
\nnor was it a profession or vocation. ,
\n    The\t activities  which constitute carrying\ton  business
\nneed not necessarily consist of activities by way of  trade,
\ncommerce  or manufacture or activities in the exercise of  a
\nprofession or vocation.\t They may even consist of  rendering
\nservices  to  others which services may be of  a  variegated
\ncharacter.   The considerations which apply in the case\t -of
\nindividuals  in\t the  matter  of  determining  whether\t the
\nactivities constitute a business within the meaning of\tthe,
\ninclusive definition thereof set out above may not apply  in
\nthe  case  of  incorporated  companies.\t  Even\tthough\t the
\nactivities  if\tcarried on by individuals  might  constitute
\nbusiness  in  that  sense they\tmight  not  constitute\tsuch
\nbusiness  when\tcarried\t on by\tincorporated  companies\t and
\nresort\tmust be had to the general position in law in  order
\nto  determine whether the incorporated company was  carrying
\non business ad
\n405<\/span>
\nas to constitute the income earned by it income’ profits  or
\ngains from business.  Reference may be made in this  context
\nto   William   Esplen,\tSon  and   Swainston,\tLimited\t  v.
\nCommissioners of Inland Revenue (1).  In that case a private
\nlimited company was incorporated for carrying on business as
\nnaval  architects  and\tconsulting  engineers.:\t Before\t the
\nformation of the company, a partnership had existed for many
\nyear between three persons who, on incorporation, became the
\nsole  shareholders  and\t directors  of\tthe  company.\t The
\npartnership   had  carried  on\tthe  profession.  of   naval
\narchitects and consulting engineers and the work done by the
\ncompany\t was identical in character with that formerly\tdone
\nby the partnership which it succeeded.\tThe work done by the
\ncompany\t was  identical in all respects with the work  of  a
\nprofessional  naval architect and consulting  engineer,\t and
\nwas  performed by the said three shareholders and  directors
\nof  the\t company personally.  A question arose\twhether\t the
\ncompany\t was carrying on a profession within the meaning  of
\nsection 39 paragraph C of the Finance (No. 2) Act, 1915.  It
\nwas  contended\tthat  it carried on a  profession  of  naval
\narchitects  and\t consulting engineers  because\tthe  members
\ncomposing  it were three naval architects.  That  contention
\nwas however negatived and it was held that even though\twhat
\nwas  to be looked at was the character of the work  done  by
\nthe  company, it was not carrying on the profession  of\t the
\nnaval architects within the meaning of the section,  because
\nfor that purpose it was of the essence of a profession\tthat
\nthe  profits  should be dependent mainly upon  the  personal
\nqualifications\tof the person by whom it was carried on\t and
\nthat  could  only bean individual.  A company such  as\tthat
\ncould  only do a naval architect’s work by sending  a  naval
\narchitect to its customers to do what they wanted to be done
\nand  it\t was  held that the company was not  carrying  on  a
\nprofession  but was carrying on a trade or business  in\t the
\nordinary sense of the term.\n<\/p>\n
    When  a partnership firm comes into existence it can  be
\npredicated  of\tit that it carries on  a  business,  because
\npartnership   according\t  to  section  4   of\tthe   Indian
\nPartner.ship Act is the relation between persons who have
\n(1)  (1919] 2 K.B. 731.\n<\/p>\n
406<\/span><\/p>\n
agreed to share the profits of a business -carried on by all
\nor  any of then acting for all. (See Inderchand Hari Ram  V.
\nCOMMissioner  of  Income-tax,  U.P & C.P.<\/a>(1)).\tBut  when  a
\ncompany\t is  incorporated it may not necessarily  come\tinto
\nexistence  for\tthe  purpose  of  carrying  on\ta  business.
\nAccording to section 5 of the Indian Companies Act any seven
\nor more persons (or, where the company to be formed will  be
\na  private company, any two or more persons) associated\t for
\nany  lawful  purpose  may by subscribing their\tnames  to  a
\nmemorandum of association………………………… form
\nan  incorporated company, and the lawful purpose  for  which
\nthe  persons become associated might not necessarily be\t the
\ncarrying on of business.  When a company is incorporated for
\ncarrying  out  certain activities it would  be\trelevant  to
\nenquire\t what  are  the\t objects  for  which  it  has\tbeen
\nincorporated.\tAs was observed by Lord Sterndale, M.R.,  in
\nCommissioners of Inland Revenuev.  The\t Korean\t   Syndicate
\nLimited(2) :\n<\/p>\n
   ” If you once get the individual and the company spending
\nexactly on the same basis, then there would be no difference
\nbetween them at all.  But the fact that the limited  company
\ncomes  into existence in a different way is a matter  to  be
\nconsidered.   An  individual comes into existence  for\tmany
\npurposes, or per. haps sometimes for none, whereas a limited
\ncompany\t comes into existence for some\tparticular  purpose,
\nand if it comes into existence for the particular purpose of
\nconcessions  and  turning them to account, then\t that  is  a
\nmatter\tto  be considered when you come\t to  decide  whether
\ndoing that is carrying on a business or not.”\n<\/p>\n
     Justice  Rowlatt  followed\t the  above  view  of\tLord
\nSterndale,  M.R.,  in  Commissioners of\t Inland\t Revenue  v.
\nBirmingham  Theatre Royal Estate Co., Limited(1),  and\theld
\nthat  ” when you are considering whether a certain  form  of
\nenterprise is carrying on business or not, it is material to
\nlook and see whether it is a company that it; doing it.” The
\nobjects\t of  an\t incorporated company as laid  down  in\t the
\nMemorandum of Association are
\n(1)  [1952] I.T.R. 108.\n<\/p>\n
(2)  (1921) 12 Tax Cas. 181 at P. 202.\n<\/p>\n
(3)  (1923) I2 Tax Cas. 580 at P. 584.\n<\/p>\n
407<\/span><\/p>\n
certainly  not\tconclusive  of\tthe  question  whether\t the
\nactivities of the company amount to carrying on of business.
\n(See  Indian  Law  Reports 55 Calcutta 1059  and  (1951]  19
\nI.T.R.\t571).\tBut  they are relevant for  the\t purpose  of
\ndetermining the nature and scope of such activities.\n<\/p>\n
     The  objects of the appellants in this case inter\talia
\nwere to act as agents for Governments or Authorities or\t for
\nany bankers, manufacturers, merchants, shippers, Joint Stock
\nCompanies  and\tothers\tand carry on  all  kinds  of  agency
\nbusiness.   This  object standing by itself  would  comprise
\nwithin\tits  ambit the activities of the appellants  as\t the
\nagents of the Company and constitute the work which they did
\nby way of general management of the business of the  company
\nan  agency  business.\tThe words ” carry on  all  kinds  of
\nagency\tbusiness  ” occurring at the end of  the  object  as
\ntherein\t set  out  were capable of  including  within  their
\ngeneral\t description the work which the appellants would  do
\nas agents for Governments or Authorities or for any bankers,
\nmanufacturers,\tmerchants,  shippers  and-others  when\tthey
\nacted  as  agents of the Company  which\t were  manufacturers
\ninter – alia of cotton piece goods they would be carrying on
\nagency\tbusiness within the meaning of this  object.   Apart
\nhowever from this there is the further fact that there was a
\ncontinuity of operations which constituted the activities of
\nthe  appellants in the general management of the  Company  a
\nbusiness.  The whole work of management which the appellants
\ndid  for the Company within the powers conferred  upon\tthem
\nunder Article 116 of the Articles of Association and  clause
\n3  of  the  Agency  Agreement  consisted  of  numerous\t and
\ncontinuous  operations\tand comprised  of  various  services
\nwhich  were rendered by the appellants as the agents of\t the
\nCompany.  The appellants were also entitled though with\t the
\nsanction  or ratification by the Board of  Directors  either
\nbefore or after the dealings to enter into dealings with the
\nCompany\t  by   way  of\tsales  and  purchases\tof   various
\ncommodities.   There was nothing in the Agency Agreement  to
\nprevent\t the appellants from acting as the agents  of  other
\nmanufacturers,\tJoint Stock Companies etc., and\t the  appel-
\nlants could have as well acted as the agents of other
\n408<\/span>
\nconcerns besides the Company.  All these factors taken, into
\nconsideration alongwith the fixity of tenure, the nature  of
\nremuneration  and  the assignability of\t their\trights,\t are
\nsufficient to enable us to ‘come to the conclusion that\t the
\nactivities  of the appellants as the agents of\tthe  Company
\nconstituted  a\tbusiness  and  the  remuneration  which\t the
\nappellants received from the Company under the terms of\t the
\nAgency Agreement was income, profits or gain from business.
\n    The\t appellants  were  therefore  rightly  assessed\t for
\nexcess\tprofits tax and these appeals must  stand  dismissed
\nwith costs.\n<\/p>\n
\t\t\t\t   Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Lakshminarayan Ram Gopaland Son … vs The Government Of Hyderabad on 1 April, 1954 Equivalent citations: 1954 AIR 364, 1955 SCR 393 Author: N H Bhagwati Bench: Bhagwati, Natwarlal H. PETITIONER: LAKSHMINARAYAN RAM GOPALAND SON LTD. Vs. RESPONDENT: THE GOVERNMENT OF HYDERABAD. DATE OF JUDGMENT: 01\/04\/1954 BENCH: BHAGWATI, NATWARLAL H. BENCH: […]<\/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-179877","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLakshminarayan Ram Gopaland Son ... vs The Government Of Hyderabad on 1 April, 1954 - 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\/lakshminarayan-ram-gopaland-son-vs-the-government-of-hyderabad-on-1-april-1954\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lakshminarayan Ram Gopaland Son ... vs The Government Of Hyderabad on 1 April, 1954 - 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