{"id":226168,"date":"1998-01-21T00:00:00","date_gmt":"1998-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-ms-express-news-papers-ltd-on-21-january-1998"},"modified":"2018-03-04T06:19:32","modified_gmt":"2018-03-04T00:49:32","slug":"the-commissioner-of-income-tax-vs-ms-express-news-papers-ltd-on-21-january-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-ms-express-news-papers-ltd-on-21-january-1998","title":{"rendered":"The Commissioner Of Income Tax vs M\/S. Express News Papers Ltd on 21 January, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Commissioner Of Income Tax vs M\/S. Express News Papers Ltd on 21 January, 1998<\/div>\n
Bench: B.N. Kirpal, S.P. Kurdukar<\/div>\n
           PETITIONER:\nTHE COMMISSIONER OF INCOME TAX\n\n\tVs.\n\nRESPONDENT:\nM\/S. EXPRESS NEWS PAPERS LTD.\n\nDATE OF JUDGMENT:\t21\/01\/1998\n\nBENCH:\nB.N. KIRPAL, S.P. KURDUKAR\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 21ST DAY OF JANUARY, 1998.\n<\/p>\n
Present:\n<\/p>\n
\t      Hon’ble Mr. Justice B. N. Kirpal
\n\t      Hon’ble Mr. Justice S. P. Kurdukar
\nS. Rajappa, B.K. Prasad, Advs. for the appellant
\nManoj Arora,  N. B.  Joshi, P.\tH. Parekh  and S.  Bhartari,
\nAdvs. for the Respondent
\n\t\t\t O R D E R
\n     The following Order of the Court was delivered:
\n     The respondent  is a  Public Limited  Company which  is
\nrunning a  well known  newspaper. The  Indian Express and we
\nare concerned  in this\tcase with  Income Tax for assessment
\nyear 1964-65.\n<\/p>\n
     On 6th  December, 1962  the Board\tof Directors  of the
\nrespondent-company passed  a resolution\t whereby it  decided
\nthat interim  dividend should  be  distributed\tamongst\t the
\nShareholders. The  resolution  further\tprovided  that\tthis
\ndividend would be payable on 16th January, 1963. it may here
\nbe noticed  that the  accounting  year\tof  the\t respondent-
\nCompany is  the calendar  year.\t The  resolution  which\t was
\npassed on 6th December, 1962, therefore, was in the previous
\nyear relevant  to the  assessment year\t1963-64 whereby\t the
\npayment was  made to  the shareholders in the following year
\nrelevant to the assessment year 1964-65.\n<\/p>\n
     In determining  the amount\t of tax which was payable by
\nthe Company  for the  assessment year 1964-65 the Income Tax
\nOfficer came  to the  conclusion that  the rebate  which was
\navailable to  the Company  under the  Act, 1964\t had  to  be
\nreduced to  the extent\tof the\tprim dividend  paid  to\t its
\nshareholders in\t January 1963.\tThe claim of the respondent,
\nin the\tappeal filed  by it, was that the Board of Directors
\nhad declared  the dividend  on 6.12.1962,  i.e.\t before\t the
\nstart of the relevant previous year and the payment was made
\nin the subsequent previous year and, therefore, by virtue of
\nExplanation 3  to the  First proviso  of the  Financial Act,
\n1964 the  rebate could\tnot be reduced. Having failed to get
\nany relief from the appellate authorities, a question of law
\nwith regard to this aspect was referred to the High Court by
\nthe Tribunal. Two others questions were also referred but we
\nare not\t concerned with those in the present case and answer
\nto them stand concluded by the judgment of the High Court.\n<\/p>\n
     The High Court reformed the relevant question of law as
\nfollows:-\n<\/p>\n
     ” Whether\ton the\tfacts and the in
\n     the circumstance  of the  case  the
\n     sum of  Rs. 3,39,000\/-  declared as
\n     dividends on 6th December, 1962, by
\n     the Board of Directors, but payable
\n     only on  16th January,  1963, could
\n     be\t  taken\t   into\t   account    in
\n     withdrawing the  rebate  admissible
\n     under  the\t first\tproviso\t to  the
\n     Finance Act of 1964 by reference to
\n     sub-clause (c) of Clause (i) of the
\n     second proviso to the same Act read
\n     with  Explanation\t3  to  the  same
\n     Act.”<\/p><\/blockquote>\n
     The High Court came to the conclusion that the company,
\nacting through\tits  Directors,\t had  declared\tthe  interim
\ndividend on  behalf of\tthe Company and when the payment was
\nmade not  in the  same previous\t year but  was made  in\t the
\nsubsequent year,  Explanation 3\t became applicable  and\t the
\nrebate could  not be  reduced. In  this appeal\tit has\tbeen
\ncontained by  the learned counsel for the appellant that the
\nHigh Court  erred in coming to the conclusion that there was
\nany declaration\t of any\t dividend, as  understood under\t the
\ncompanies Act,\tby the\tCompany. According  to\tthe  learned
\ncounsel, the  resolution of the Board of Directors dated 6th
\nDecember, 1962\tcannot\tbe  regarded  as  a  declaration  of
\ndividend by  the Company  and therefore what was relevant is
\nto see\tthe date  when the  interim dividend was distributed
\nand as\tthe distribution  took place  in the  previous\tyear
\nrelevant to the assessment year 1964-65 therefore the rebate
\nto that\t extent was  rightly withdrawn.\t On  behalf  of\t the
\nrespondent, however,  it was  submitted that the judgment of
\nthe  High   Court  called   for\t no   interference  as\t the
\ndistribution of\t the dividend  took place  pursuant  to\t the
\ndeclaration by the Board of Directors.\n<\/p>\n
     In order  to appreciate  the point in issue, it will be
\nappropriate to\trefer to the relevant provision. The Finance
\nAct, 1964, like all other Finance Acts, inter-alia, provides
\nfor the\t rate at  which Income-tax  and Super tax is levied.
\nAccording to  this Act the rate of Super tax of the whole of
\nthe total  income was  55% , as per paragraph D of Part (ii)
\nof the Finance Act, 1964. The first proviso to this contains
\nthe rebate  which is allowed in computation of the tax. This
\nrebate is,  however, reduced  wherever the provisions of the
\nsecond proviso\tbecome\tapplicable.  In\t the  present  case,
\nsecond proviso\tclause 1  (i) (c), inter-alia, provides that
\nthe amount  of rebate shall be reduced where the Company has
\n“declared or  distributed to  its  shareholders\t during\t the
\nprevious year  any dividend….”  The rate  of reduction, as
\nper this  sub-clause is\t 7.5 with the whole of the amount of
\ndividend which is declared. Explanation 3, on which reliance
\nis placed  by the  respondent, to  this provision  reads  as
\nfollows:”\n<\/p>\n
     “Explanation 3.  – For  the removal
\n     of doubts\tit  is\thereby\tdeclared
\n     that  where   any\tdividends   were
\n     declared by  the company before the
\n     commencement of  the previous  year
\n     and are  distributed by  it  during
\n     that  year,  no  reduction\t in  the
\n     rebate shall  be  made  under  sub-
\n     clause (c)\t of clause  (i)\t of  the
\n     second proviso  in respect\t of such
\n     dividends.”<\/p><\/blockquote>\n
     On a  carefully examination of the aforesaid provision,
\nit appears  to us that the rebate given by the first proviso
\ncan be\treduced if dividend has been declared or distributed
\nby the\tCompany to  this shareholders.\tTwo expressions\t are
\nused, namely,  “declared” and “distributed”. Learned counsel
\nfor the\t respondent is\tright in construing Explanation 3 to
\nmean that  if the declaration of the dividend is in the year
\nprior to  the commencement of the relevant previous year but
\nthe distribution  is in\t the relevant  previous year then no
\nrebate would  be reduced  in which distribution takes place.
\nIn other  words, the  rebate, as  far as  Explanation  3  is
\nconcerned, can\tbe reduced  only if  the declaration and the
\ndistribution is in the same previous year.\n<\/p>\n
     In our  opinion, the  High Court  committed an error in
\nproceeding on  the assumption  hat the\tresolution passed by
\nthe Board  of Directors\t on 6th December, 1962 amounted to a
\ndeclaration of dividend. Under Sec. 20 of the Companies Act,
\ndividend is  distributed on a resolution being passed by the
\ncompany in general meeting. The Companies Act, as such, does
\nnot  specifical\t  refer\t to   the  distribution\t of  interim
\ndividend. Table\t A, however, provides for payment of interim
\ndividends. Two\tclauses of  Table A  to the  Companies\tAct,
\nnamely, Clause 85 and 86 read as follows:-\n<\/p>\n
     ”\t85.   The  Company   in\t general
\n     meeting may  declare dividends, but
\n     no dividend shall exceed the amount
\n     recommended by the Board.\n<\/p><\/blockquote>\n
     86. The Board may from time to time
\n     pay to  the  members  such\t interim
\n     dividends as  appear to  it  to  be
\n     justified by  the\tprofits\t of  the
\n     Company.<\/p><\/blockquote>\n
     Unfortunately,  the  Articles  of\tAssociation  of\t the
\nrespondent-company are\tnot on\trecord but  normally, as  is
\nexpected, the Articles of Association would be in consonance
\nwith the  provisions of\t Table A.  The perusal\tof aforesaid
\nClauses 85  and 86 clearly brings out the distinction in the
\npower of  the Company and the Board of the Directors . It is
\na Company  which in  general meeting is empowered to declare
\ndividend. Clause 86 does not give the Board of Directors per
\nto declare  any dividend  but only enables it to pay interim
\ndividend to the members of the Company from time to time. It
\nis because  there is  a difference  in the  power  which  is
\nexercised by  the Company in general meeting, vis-a-vis, the
\none exercised  by the  Board of\t Directors while deciding to
\npay an\tinterim dividend,  that in  clause (c) of the Second
\nproviso in the Finance Act, the expression used is “declared
\nor distributed to its shareholders”. This clearly postulates
\na situation  where  they  may  be  distributed\tof  dividend
\nwithout its  declaration. This\tcan be\twhere the  Board  of
\nDirectors, and\tnot the\t Company in general meeting, decides
\nto pay\tinterim dividend  in which  case the  rebate will be
\nwithdrawn  in  the  year  of  distribution  of\tthe  interim
\ndividend, there\t being no declaration by the Company for the
\nPayment thereof.\n<\/p>\n
     The difference  in the  nature of\tinterim dividend and
\nthe dividend  declared by  the company\tgeneral\t meeting  is
\nclearly brought\t out in a decision of this Court in the case
\nof J.  Dalmia V. Commissioner of Income Tax, Delhi<\/a> 53 I.T.R.\n<\/p>\n
83. In\tthat case  the Board  of Directors  had declared  an
\ninterim dividend  in its  meeting held\ton 30th August, 1950
\nand  payment  was  made\t to  the  shareholders\tby  dividend
\nwarrants issued\t on 28th December, 1950. The accounting year
\nof the\tassesses ended\ton 30th September, 1950, relevant to
\nthe assessment\tyear 1951-52. The question arose whether the
\ninterim dividend declared by the Board of Directors in the
\nprevious year relevant to the assessment year 1951-52 was to
\nbe taxed  in that year or was the interim dividend liable to
\nbe taxed  in the assessment year 1952-53 because the payment
\nwas made  in that  previous year. Dealing with the nature of
\nthe interim  dividend, this  Court at  page 87\tobserved  as
\nfollows:-\n<\/p>\n
     “There   is   no\tdoubt\tthat   a
\n     declaration  of   dividend\t  by   a
\n     company in\t general  meeting  gives
\n     rise to  a debt.  “when  a\t company
\n     declares a\t dividend on its shares,
\n     a debt  immediately becomes payable
\n     to each  shareholder in  respect of
\n     his dividend  for which  he can sue
\n     at\t law,\tand   the   statute   of
\n     limitation\t immediately  begins  to
\n     run”. In  re  Severn  and\tWhy  and
\n     Severn Bridge  Railway Company. But
\n     this rule\tapplies only  in case of
\n     dividend declared by the company in
\n     general meeting.  A final\tdividend
\n     in general\t may be sanctioned at an
\n     annual meeting  when  the\taccounts
\n     are presented  to the  members. But
\n     power to  pay interim  dividend  is
\n     usually vested  by the  articles of
\n     association in  the directors.  For
\n     paying    interim\t   dividend    a
\n     resolution of  the Company\t is  not
\n     required:\tif   the  directors  are
\n     authorised\t by   the  articles   of
\n     association  they\t may  pay   such
\n     amount as they think proper, having
\n     regard to\ttheir  estimate\t of  the
\n     profits  made   by\t  the\tcompany.
\n     Interim dividend  is therefore paid
\n     pursuant to  the resolution  of the
\n     directors on  some day  between the
\n     ordinary general  meetings\t of  the
\n     company.  On  payment,  undoubtedly
\n     interim   dividend\t   becomes   the
\n     property of  the shareholder. But a
\n     mere resolution  of  the  directors
\n     resolving to  pay a  certain amount
\n     as interim dividend does not create
\n     a\tdebt   enforceable  against  the
\n     company, for  it is  always open to
\n     the  directors   to   rescind   the
\n     resolution before\tpayment\t of  the
\n     dividend.\t In    Lagunas\t Nitrate
\n     Company   (Limited)    vs.\t   Henry
\n     Schroeder and Company the directors
\n     of a  Company passed  a  resolution
\n     declaring interim\tdividend payable
\n     on a future date, and requested the
\n     company’s bankers to set apart, out
\n     of the  money  of\tthe  Company  in
\n     their hands, into a special account
\n     entitled\t  “Interim\tDividend
\n     Account”, a sum sufficient to cover
\n     the dividend, pending the company’s
\n     instructions. But\tbefore the  date
\n     fixed for\tpayment,  the  directors
\n     resolved\tthat   pending\t certain
\n     litigation to which the company was
\n     a\tparty  payment\tof  dividend  be
\n     postponed. It was held by the Court
\n     that the  directors had  the  right
\n     even after resolving to pay interim
\n     dividend to  rescind the resolution
\n     and no  enforceable right\tarose in
\n     favour  of\t  the  members\t of  the
\n     Company  by   the\tdeclaration   of
\n     interim dividend.\n<\/p><\/blockquote>\n
     Therefore,\t a   declaration  by   a
\n     company in\t general  meeting  gives
\n     rise to  an enforceable obligation,
\n     but a  resolution of  the board  of
\n     directors resolving  to pay interim
\n     dividend  or   even  resolving   to
\n     declare interim  dividend\tpursuant
\n     to\t the  authority\t conferred  upon
\n     them by the articles of association
\n     gives  rise   to\tno   enforceable
\n     obligation\t rescinded.   Therefore,
\n     departure in the text of article 74
\n     of the  articles of  association of
\n     Govan  Bros.   form  the  statutory
\n     version under  Table A of the power
\n     in\t respect  of  interim  dividend,
\n     dividend which  may be entrusted to
\n     the  directors,   makes   no   real
\n     difference in the true character of
\n     the right\tarising in favour of the
\n     members  of   the\tcompany\t on  the
\n     execution\t of   the   power.   The
\n     directors,\t by   the  articles   of
\n     association, are entrusted with the
\n     administration of\tthe affairs of a
\n     company’ it  is open  to them if so
\n     authorised\t  to   declare\t interim
\n     dividend. They  may,  but\tare  not
\n     bound to, pay interim dividend even
\n     if\t the  finances\tof  the\t company
\n     justify such  payment. Even  if the
\n     directors\thave   resolved\t to  pay
\n     interim dividend,\tthey may  before
\n     payment rescind the resolution.”<\/p><\/blockquote>\n
     The aforesaid  observation clearly\t supports  the\tview
\nwhich we  have taken, namely, that the nature of the interim
\ndividend is  such that it gives no right to the shareholders
\nto receive it merely on the passing of the resolution by the
\nBoard of  Directors whereas  on a dividend being declared by
\nthe Company in general meeting a vested right accuses to the
\nShareholders. This  being so,  if  the\tCompany\t in  general
\nmeeting had declared a dividend on 6th December 1962 and the
\nsame was  distributed in  January 1963\tthen  the  aforesaid
\nExplanation 3 would have been applicable. But in the present
\ncase,  the  decision  of  the  Board  of  Directors  on\t 6th
\nDecember, 1962\tto pay\tinterim dividend cannot be construed
\nas meaning  declaration of  dividend by\t the  company.\tThis
\nbeing so  what would  be relevant is the distribution of the
\ndividend in January, 1963, thereby attracting the provisions
\nof Clause (c) of proviso 2(i) and the Income-tax authorities
\nwere therefore right in reducing the rebate in the manner in
\nwhich they did for the assessment year 1964-65.\n<\/p>\n
     For the  aforesaid reason, the appeals are allowed. The
\njudgment of  the High  Court is set aside. The question law,
\nas  reframed   by  the\t High  Court,  is  answered  in\t the
\naffirmative and\t in favour  of the revenue. There will be no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Commissioner Of Income Tax vs M\/S. Express News Papers Ltd on 21 January, 1998 Bench: B.N. Kirpal, S.P. Kurdukar PETITIONER: THE COMMISSIONER OF INCOME TAX Vs. RESPONDENT: M\/S. EXPRESS NEWS PAPERS LTD. DATE OF JUDGMENT: 21\/01\/1998 BENCH: B.N. KIRPAL, S.P. KURDUKAR ACT: HEADNOTE: JUDGMENT: THE 21ST DAY OF JANUARY, 1998. […]<\/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-226168","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Commissioner Of Income Tax vs M\/S. 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