{"id":24212,"date":"1959-05-12T00:00:00","date_gmt":"1959-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-jagdish-mills-ltd-vs-the-commissioner-of-income-tax-on-12-may-1959"},"modified":"2017-12-19T17:07:36","modified_gmt":"2017-12-19T11:37:36","slug":"shri-jagdish-mills-ltd-vs-the-commissioner-of-income-tax-on-12-may-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-jagdish-mills-ltd-vs-the-commissioner-of-income-tax-on-12-may-1959","title":{"rendered":"Shri Jagdish Mills Ltd vs The Commissioner Of Income-Tax, … on 12 May, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shri Jagdish Mills Ltd vs The Commissioner Of Income-Tax, … on 12 May, 1959<\/div>\n
Equivalent citations: 1959 AIR 1160, \t\t 1960 SCR (1) 236<\/div>\n
Author: N H Bhagwati<\/div>\n
Bench: Bhagwati, Natwarlal H.<\/div>\n
           PETITIONER:\nSHRI JAGDISH MILLS LTD.\n\n\tVs.\n\nRESPONDENT:\nTHE  COMMISSIONER  OF INCOME-TAX, BOMBAY  NORTH,  KUTCH\t AND\n\nDATE OF JUDGMENT:\n12\/05\/1959\n\nBENCH:\nBHAGWATI, NATWARLAL H.\nBENCH:\nBHAGWATI, NATWARLAL H.\nDAS, SUDHI RANJAN (CJ)\nHIDAYATULLAH, M.\n\nCITATION:\n 1959 AIR 1160\t\t  1960 SCR  (1) 236\n\n\nACT:\n       Income-tax-Assessee  company  manufacturing  and\t  supplying\n       goods from outside British India-Stipulation for Payment\t by\n       cheque  Cheques\tremitted by post  from\tBritish\t India-Post\n       Office,\tif  an agent of the assess--income if  received\t in\n       taxable\tterritoriesIndian Income-tax Act (XI Of\t 1922),\t s.\n       4(1)(a).\n\n\n\nHEADNOTE:\n       The appellant company, carrying on business in manufacturing\n       and  selling textiles at Baroda, received in the\t assessment\n       years  1942-43  and  1943-44 payments in\t cheques  from\tthe\n       Government  of India for the supply of such goods  on  bills\n       submitted, as agreed upon in prescribed printed forms  which\n       provided\t that the Government should pay the amount  due\t to\n       the  appellant by cheque.  The appellant, however,  did\tnot\n       request\tor write to the Government indicating in  what\tway\n       the payment by cheque was\n\t\t\t\t   237\n       to  be made.  The Government sent the cheques from Delhi\t by\n       post to the appellant at Baroda and it received and accepted\n       them in Baroda in full and unconditional satisfaction of its\n       claim  and cashed them through its bank accounts\t in  Bombay\n       and Ahmedabad.  The question was whether the amounts of\tthe\n       cheques\twere  income,  profits and gains  received  by\tthe\n       appellant  in  the  taxable territories -and  were  as  such\n       liable to tax under S. 4(1)(a) of the Indian Income-tax Act.\n       The  Income-tax Officer held that the amounts were  received\n       in  British  India  as the cheques were drawn  on  banks\t in\n       British\tIndia and the Appellate Assistant  Commissioner\t on\n       appeal\taffirmed  his  order.\tThe  Income-tax\t  Appellate\n       Tribunal\t on appeal held that even though the appellant\tdid\n       not  ask the Government to send the cheques by  post,  there\n       was  an implied request to do so and following the  decision\n       of this Court in Commissioner of Income-tax, Bombay South v.\n       Messrs.\t Ogale Glass Works Ltd.<\/a> [1955] I S.C.R.\t 185,  held\n       that the amounts of the cheques were received in the taxable\n       territories  and\t as such the appellant was  liable  to\ttax\n       under s. 4(1)(a) of the Act.  Hence these appeals by special\n       leave.\tThe question for decision was whether in the  facts\n       and circumstances of the case the stipulation that  payments\n       should be made by cheques implied a request by the appellant\n       to  the\tGovernment  to send the cheques by post\t so  as\t to\n       constitute  the\tPost Office its agent  for  receiving  such\n       payments.\n       Held,  that  regard  being  had to  the\tgeneral\t course\t of\n       business usage which was followed in this case, there  could\n       be  no  doubt  that the parties intended\t that  the  cheques\n       should  be  sent\t by post which was the\tnormal\tagency\tfor\n       transmission  of such articles and, consequently, there\twas\n       an  implied  request by the appellant to the  Government\t to\n       send the cheques by post so as to constitute the Post Office\n       its agent for the purpose of receiving those payments.\n       Commissioner  of Income-tax, Bombay South v. Messrs.   Ogale\n       Glass Works Ltd.<\/a> [1955] I S.C.R. 185 and Norman v.  Rickets,\n       (1886) 3 T.L.R. 182, applied.\n       Pennington v. Crossley and Sons (Limited), [1879] 13  T.L.R.\n       513, considered.\n       Thorappa\t v. Umedmalji (1923) 25 Bom.  L.R. 604 and  Exparte\n       Cote In -ye Deveza, (1873) L.R. 9 Ch. 27, distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 681 and\t682
\n       of 1957.\n<\/p>\n
       Appeals\tby  special leave from the order  dated\t August\t 2,
\n       1954, of the Income-tax Appellate Tribunal of India,  Bombay
\n       Bench  ‘A’  in Income-tax Appeals Nos. 3756 of  1948-49\tand
\n       2161 of 1950-51.\n<\/p>\n
       R.   J. Kolah and I. N. Shroff, for the appellants.
\n       H.   N. Sanyal, Additional Solicitor-General of India,
\n       K.N. Rajagopal Sastri and D. Gupta, for the respondent.\n<\/p>\n
       238<\/span><\/p>\n
       1959.  May 12.  The Judgment of the Court was delivered by
\n       BHAGWATI J.-These two appeals with special leave under  Art.
\n       136  of the Constitution are directed against the  order\t of
\n       the Income-tax Appellate Tribunal of India, Bombay Bench ” A
\n       ” (hereinafter referred to as ” the Tribunal “) dated August
\n       3, 1954, in Income-tax Appeals Nos. 3756 of 1948-49 and 2161
\n       of  1950-51  whereby the Tribunal held that the\tamounts\t of
\n       cheques\tof Rs.1,98,643 and Rs. 4,96,365 for the\t assessment
\n       years  1943-44  and 1944-45 were received by  the  appellant
\n       from  the Government in the taxable territories and were\t as
\n       such liable to tax under s. 4(1)(a) of the Indian Income Tax
\n       Act (XI of 1922) (hereinafter referred to as “the Act”).
\n       At all material times the appellant was a public joint stock
\n       company\tincorporated under the then Baroda State  Companies
\n       Act  and\t having\t its  registered  office  at  Baroda.\tThe
\n       appellant  was  the owner of a textile mill and\tcarried\t on
\n       business in manufacturing and selling textiles at Baroda.
\n       In  the accounting years 1942 and 1943 tenders were  invited
\n       by  the\tGovernment  of\tIndia  for  some  of  the  articles
\n       manufactured  by the appellant and the  appellant  submitted
\n       its  tenders to the Government of India which  accepted\tthe
\n       tenders\tand placed orders for supply of goods  manufactured
\n       by  the\tappellant.   These  orders  were  accepted  by\tthe
\n       appellant  at  Baroda  and  the\tdeliveries  of\tthe   goods
\n       manufactured  by\t the  appellant\t and- sold  by\tit  to\tthe
\n       Government  of India were pursuant to the said orders to\t be
\n       and  were in fact effected F. 0. B. Baroda.  In fact so\tfar
\n       as  the\tmanufacture and sale of the goods supplied  to\tthe
\n       Government  of India were concerned, as also the\t deliveries
\n       thereof,\t everything took place at Baroda, outside the  then
\n       British India.\n<\/p>\n
       According  to the conditions of the contracts governing\tthe
\n       supplies made by the appellant to the Government, the system
\n       of  payment was, that unless otherwise agreed  upon  between
\n       the parties, payment for delivery of the goods would be made
\n       on  submission  of  the\tbills in  the  prescribed  form\t in
\n       accordance with
\n\t\t\t\t   239<\/span>
\n       the instructions given in the acceptance of the tender by  a
\n       cheque  on a Government Treasury or a Branch of the  Reserve
\n       Bank  of\t India or the Imperial Bank of’\t India\ttransacting
\n       Government   business.\t The  appellant\t  after\t  effecting
\n       deliveries  of the goods, submitted bills in the\t prescribed
\n       printed form which contained the sentence that ”\t Government
\n       should  pay the amount due to the appellant by cheque ”\tbut
\n       the appellant did not request or write to the Government, in
\n       what way the payment by cheque was to be made by\t Government
\n       to  the\tappellant.   After  submission\tof  the\t bills\tthe
\n       appellant  received  at\tBaroda, in  payment  of\t its  bills
\n       cheques\tthrough\t post  from  the  Government  drawn  on\t  a
\n       Government  Treasury or on a branch of the Reserve  Bank\t of
\n       India  or the Imperial Bank of India transacting\t Government
\n       business.   The said cheques were received at Baroda by\tthe
\n       appellant from the Government, along with a memo stating:-
\n       ” The undersigned has the honour to forward herewith  cheque
\n       No. dated in payment of the bills noted below.”
\n       then  followed a tabular statement setting out  the  number,
\n       amount and date of the bills.  On the top of the memo  there
\n       was  a  direction that ” it be immediately returned  to\tthe
\n       Controller  of  Supplies Accounts, with\tthe  acknowledgment
\n       form   on  the  reverse\tduly  signed  and   stamped.”\tThe
\n       acknowledgment form was expressed as follows:-
\n       ”  The undersigned has the honour to acknowledge cheque\tNo.\n<\/p>\n
       dated\t       for  Rs.\t\t in payment  of\t the  bills
\n       noted in the first column on the reverse.”\n<\/p>\n
       The payments made by cheques were accepted by the  appellant
\n       unconditionally\tand in full satisfaction of its\t claim\tfor
\n       goods  supplied\tto  the Government.  On\t receipt  _of  such
\n       cheques,\t the  appellant\t endorsed the same  and\t sent  them
\n       either to Bombay or Ahmedabad in the Banking account of\tthe
\n       appellant at such places.\n<\/p>\n
       By his orders dated September 20, 1945, and March 16,  1943,
\n       for  the\t assessment  years  1942-43  (account  year   being
\n       calendar year 1941) and 1943-44 (account year being calendar
\n       year 1942) the Income-tax Officer
\n       240<\/span>
\n       held  that the sums of Rs. 1,98,643 and Rs.  4,96,365  being
\n       the amounts of the cheques received by the appellant for the
\n       goods  supplied\tto  the Government  of\tIndia  amounted\t to
\n       receipt of income, profits and gains in British India during
\n       the said accounting years inasmuch as the said cheques  were
\n       drawn on banks in British India and were liable to tax.
\n       On  appeal to the Appellate Assistant Commissioner from\tthe
\n       said  orders  of\t the  Income-tax  Officer,  the\t  Appellate
\n       Assistant  Commissioner confirmed the orders of the  Income-
\n       tax Officer and dismissed the appeals.\n<\/p>\n
       From   the   said  decision  of\tthe   Appellate\t  Assistant
\n       Commissioner  the  Appellant  appealed  to  the\tIncome\ttax
\n       Appellate  Tribunal who, after two remand orders on  various
\n       points  in the case which have no relevance to the  question
\n       involved in these appeals, finally by its order dated August
\n       3,  1954, held that even though the appellant did not  write
\n       to  the Government saying that the cheques be sent by  post,
\n       there  was an implied request to the Government to send\tthe
\n       cheques\tby  post, observing that where a person\t in  Baroda
\n       writes to another in Delhi to send the money due to him by a
\n       cheque  there  is an implied request to send the\t cheque\t by
\n       post.   The  appellant  could not  have\tintended  that\tthe
\n       cheques would be sent otherwise than by post and it was\tnot
\n       the case of the appellant that the cheques received from the
\n       Government   were  delivered  by\t hand  on  behalf  of\tthe
\n       Government  to  the Appellant at Baroda\tand  following\tthe
\n       decision of this Court in Commissioner of Income-tax  Bombay
\n       South  v. Messrs.  Ogale Glass Works Ltd.<\/a>(‘),  the  Tribunal
\n       held that the amounts of the cheques referred to above  were
\n       received by the appellant in the taxable territories and\t as
\n       such the appellant was liable to tax under s. 4(1)(a) of the
\n       Act.\n<\/p>\n
       On  December  20, 1954, the appellant  applied  for  special
\n       leave to appeal against the said order of the Tribunal under
\n       Art. 136 of the Constitution which leave was granted by this
\n       Court by its order dated April 15, 1955.\t By a further order
\n       dated September 19, 1955, both the appeals were consolidated
\n       for the purposes of printing of the record and for filing of
\n       the
\n       (1)[1955] 1 S.C.R. 185.\n<\/p>\n
       241<\/span><\/p>\n
       petitions  of  appeal and the statements\t of  case  therein.
\n       These  appeals  have  now  come up  for\thearing\t and  final
\n       disposal before us.\n<\/p>\n
       On  the\tfacts narrated above it is clear that the  mode\t of
\n       payment agreed upon between the appellant and the Government
\n       of  India,  as specified in Cl. 21 in the  printed  form\t of
\n       tender, was that the payments for the delivery of the  goods
\n       were to be by cheques drawn on a Government Treasury or on a
\n       branch of the Reserve Bank of India or the Imperial Bank\t of
\n       India  transacting Government business.\tThe appellant  used
\n       to  submit  the bills in the prescribed printed\tform  which
\n       mentioned that the Government should pay the amounts due\t to
\n       the  appellant  by cheque.  In payment of  these\t bills\tthe
\n       appellant  used to receive at Baroda cheques’ drawn  by\tthe
\n       Government as aforesaid along with a memo of  acknowledgment
\n       which  stated  that  the\t cheques  mentioned  therein   were
\n       forwarded  in  payment  of the bills noted  in  the  tabular
\n       statement  setting  out the amount, number and date  of\tthe
\n       bills.\tThe  acknowledgmet  it\tform  on  the  reverse\twas
\n       thereafter  duly\t signed\t and  -stamped\tby  the\t  appellant
\n       acknowledging  the receipt of the cheques in payment of\tthe
\n       said  bills  and\t was despatched by  the\t appellant  to\tthe
\n       Government.  These payments by cheques were accepted by\tthe
\n       appellant  unconditionally and in full satisfaction  of\tits
\n       claims for the goods supplied to the Government.
\n       The case of the Revenue in the first instance was that  even
\n       though  these  cheques  were received by\t the  appellant\t in
\n       Baroda they were sent by the appellant after duly  endorsing
\n       the  same  either  to Bombay or\tAhmedabad  in  the  banking
\n       accounts\t of the appellant at such places and these  cheques
\n       were  cashed and the proceeds thereof were received  by\tthe
\n       appellant in either Bombay or Ahmedabad and accordingly\tthe
\n       income,\tprofits\t and gains were received by  the  appellant
\n       within the taxable territories.\tThis contention was  really
\n       of  no avail to the Revenue because on the particular  facts
\n       of  the present case it was common ground that the  payments
\n       made   by   cheques   were   accepted   by   the\t  appellant
\n       unconditionally\tand in full satisfaction of its claims\tfor
\n       goods supplied to the
\n       31<\/span>
\n       242<\/span>
\n       Government and therefore if the cheques be held to have been
\n       received by the appellant in Baroda the\tincome, profits and
\n       gains  were  also received in Baroda which was  outside\tthe
\n       taxable territories.  Even if the receipts of the cheques at
\n       Baroda\tbe  treated  as\t a  conditional\t payment   of\tthe
\n       appellant’s claims for the goods supplied to the Government,
\n       the  position was no better, for the simple reason that\tthe
\n       cheques\tnot  having been dishonoured but having\t been  duly
\n       cashed  the  payments  related  back to\tthe  dates  of\tthe
\n       receipts\t of  the cheques and in law the dates  of  payments
\n       were  the  dates of the delivery of the\tcheques\t which\twas
\n       certainly  in Baroda-out side the taxable  territories.\t In
\n       either event, it could not be urged by the Revenue that\tthe
\n       income, profits and gains were received by the appellant\t at
\n       any  place  other  than Baroda  (Vide  the  Commissioner\t of
\n       Income-tax,  Bombay South v. Messrs. Ogale Glass Works  Ltd.<\/a>
\n       (1),  ibid at 196).  The position which was, however,  taken
\n       up  by  the Revenue subsequently was that the  cheques  were
\n       posted by the Government in Delhi at the implied request\t of
\n       the  appellant  and therefore the payments must be  held\t to
\n       have  been  received  by the appellant at  Delhi,  the  Post
\n       Office being thus constituted the agent of the appellant for
\n       the purposes of receiving the same.  Learned Counsel for the
\n       appellant  contested this position by urging that  the  only
\n       thing  mentioned by the appellant was that the  payment\tfor
\n       the goods supplied by the appellant to the Government was to
\n       be  by  cheques and there was no request either\texpress\t or
\n       implied\temanating  from the appellant for the  despatch\t of
\n       these cheques by post with the result that if the Government
\n       chose to send these cheques by post from Delhi it was not in
\n       pursuance  of  any request express or implied  made  by\tthe
\n       appellant  in  that  behalf  but\t it  was  so  done  by\tthe
\n       Cxovernment on its own initiative thus constituting the Post
\n       Office the agent of ‘the Government and there was no receipt
\n       of  the\tmonies by the appellant until the  cheques  reached
\n       their  destination at Baroda.  The case of the  Commissioner
\n       of  Income-tax, Bombay South v. Messrs.\tOgale  Glass  Works
\n       Ltd.<\/a> (1), which was relied upon by Revenue was sought
\n       (1)[1955] 1 S.C.R. 18_~.\n<\/p>\n
\t\t\t\t   243<\/span><\/p>\n
       to  be  distinguished on the ground that in  that  case\tthe
\n       assessee\t had written on the bill form the words\t ”  Kindly.
\n       remit  the amount by a cheque in our favour on any  bank\t in
\n       Bombay  ”  which\t was an express\t request  conveyed  to\tthe
\n       Government  by the assessee to send the cheque by post  thus
\n       constituting the Post Office the agent of the assessee.\t No
\n       such  words having been used by the appellant in\t this  case
\n       the only consequence of the provision contained in the  bill
\n       form  that  the\tpayment\t be made by  cheque  was  that\tthe
\n       Government was authorised or entitled to make the payment by
\n       cheque; but how to reach those cheques to the appellant\twas
\n       left to the sweet will and discretion of the Government\tand
\n       if the Government chose to send those cheques by post  there
\n       was  no\trequest,  express or implied,  emanating  from\tthe
\n       appellant  to send the cheques by post so as  to\t constitute
\n       the Post Office the agent of the appellant for the  purposes
\n       of receiving the same.\n<\/p>\n
       It  is true that in the Commissioner of\tIncome-tax,  Bombay
\n       South  v. Messrs.  Ogale Glass Works Ltd.<\/a> (1), the  words  ”
\n       kindly  remit  the amount by a cheque in our favour  on\tany
\n       bank in Bombay ” were specifically used by the assessee\tand
\n       these  words were construed to be an express request by\tthe
\n       assessee to the Government to send the cheques by post.
\n       The   various  authorities  which  were\t discussed,   viz.,
\n       Thairlwall  v. The Great Northern Railway  Co.(‘);  Badische
\n       Anilin  Und  Soda Fabrik v. The Basle  Chemical\tWorks  Bind
\n       Schedler\t (3)  ; Comber v. Layland (‘)and  MitchellHenry\t v.
\n       Norwich\tUnion Life Insurance Society (5), were\talso  cases
\n       where  the  expressions\tused were  construed  as  words\t of
\n       express\trequest constituting the Post Office the  agent\t of
\n       the  party  receiving  the money or the goods  and  went\t to
\n       support\tthe case made by the Revenue that the  post  office
\n       was  constituted the agent of the assessee for the  purposes
\n       of  receiving  the  cheques when they  were  posted  by\tthe
\n       Government in Delhi.  Where, however, no such express  words
\n       were  used and the matter rested merely in  the\tstipulation
\n       that the payment would be made by cheques, would the mere
\n       (1) [1955] 1 S-C.R. 185.\t  (3) [1898] A.C, 200.
\n       (2) [1910] 2 K.B. 509.\t  (4) [1898] A.C   524.\n<\/p>\n
       (5)(19I8] 2 K.B. 67.\n<\/p>\n
       244<\/span><\/p>\n
       posting of the cheques in Delhi be enough to constitute\tthe
\n       Post Office the agent of the appellant so that the  ‘income,
\n       profits\tand gains may be said to have been received by\tthe
\n       appellant within the taxable territories ?
\n       If  there was nothing more, the position in law is that\tthe
\n       Post Office would not become the agent of the addressee\tand
\n       the mere posting of the cheque would not operate as delivery
\n       of  the cheque to the addressee so as to pass the  title\t in
\n       the cheque to the addressee. (Vide Thorappa v. Umedmalji (1)
\n       and the case of Exparte Cote In re Daveza (2).
\n       Where,  however, on the facts and circumstances of the  case
\n       an  implied  request by the creditor to send the\t cheque\t by
\n       post can be spelt out, the Post Office would be\tconstituted
\n       the  agent  of the addressee for the purposes  of  receiving
\n       such payment.  The authority in support of this\tproposition
\n       is  to  be  found in Norman v. Ricketts(3).   In\t that  case
\n       Madame Phillippe, one of the plaintiffs, carried on business
\n       as  a milliner in Bondstreet, and one of her  customers\twas
\n       the  defendant,\tMrs.  Ricketts.\t Between  March\t 1884,\tand
\n       March, 1885, goods were supplied by Madame Phillippe to Mrs.
\n       Ricketts to the amount of pound 142.  Mrs. Ricketts lived in
\n       Suffolk,\t and  at the end of March, 1885,  Madame  Phillippe
\n       wrote  to  her in Suffolk saying, ” the favour of  a  cheque
\n       within  a week will oblige “. Mrs. Ricketts accordingly,\t on
\n       April  6, sent Madame Phillippe a cheque for the\t amount\t by
\n       post.  The cheque was an open cheque payable to the order of
\n       Madame Phillippe.  The cheque was stolen in the transit, and
\n       Madame Phillippe never received it, but it was paid by  Mrs.
\n       Ricketts’  bankers  to  the thief.   Madame  Phillippe  then
\n       commenced  this action to recover the amount, and Mr.  Baron
\n       Huddleston who tried the case without a jury, held [(1885) 2
\n       T.L.R. (607)] that the sending of the cheque was payment and
\n       gave  judgment for the defendant.  The  plaintiffs  appealed
\n       and  the\t appeal\t was  dismissed\t by  the  Court\t of  Appeal
\n       consisting  of Lord Esher, M. R., Lindley and Lopes, L.\tJJ.
\n       The Master of the Rolls said that if a debtor had to pay his
\n       creditor
\n       (1) (1923) 25 Bom.  L.R. 604.   (2) (1873) L.R. 9 Ch. 27.
\n       (3) (1886) 3 T.L.R. 182.\n<\/p>\n
       245<\/span><\/p>\n
       money,  as a general rule the debtor must come and  pay\this
\n       creditor.   But\tif  the\t creditor asked him  to\t pay  in  a
\n       particular  way,\t the debtor might do so.  If asked  to\tpay
\n       through\tthe post, the putting the letter in the\t post  with
\n       the  money  was a sufficient.  The only\tquestion  here\twas
\n       whether the plaintiffs asked the defendant in effect to send
\n       the  money  through the post.  An express  request  to  send
\n       through the post was not necessary.  If what the\t plaintiffs
\n       said  amounted to a request to send the cheque by the  post,
\n       then  there  was\t payment.   To\tanswer\tthat  question\tthe
\n       existing\t circumstances\tmust be looked at.  A  milliner\t in
\n       London wrote to a lady in Suffolk asking for a cheque.  ]bid
\n       that letter reasonably lead the lady to suppose and did\tshe
\n       suppose\tthat she might send the cheque by post ? She  could
\n       not suppose that she was to send a messenger with it or come
\n       up  to  London  herself.\t The  only  reasonable\tand  proper
\n       meaning\tto  be attached to it,\twhatever  Madame  Phillippe
\n       might have intended, was that she was to send the cheque\t by
\n       post.   She,  therefore, reasonably believed  that  she\twas
\n       invited to send her cheque by post, and she did what she was
\n       asked to do.  Consequently, what she did amounted to payment
\n       to  the appellant.  The Lords Justices concurred\t with  this
\n       judgment.\n<\/p>\n
       Resting itself upon the observations in this case this Court
\n       observed\t in  Commissioner of Income-tax,  Bombay  South\t v.
\n       Messrs.\t Ogale Glass Works Ltd.<\/a> (1) at p. 295:
\n\t”  According to the course of business usage in general\t to
\n       which,  as part of the surrounding circumstances,  attention
\n       has  to\tbe  paid under the  authorities\t cited\tabove,\tthe
\n       parties\tmust have intended that the cheques should be  sent
\n       by   post  which\t is  the  usual\t and  normal   agency\tfor
\n       transmission   of  such\tarticles  and  according   to\tthe
\n       Tribunal’s  findings  they  were in  fact  received  by\tthe
\n       assessee by post.”\n<\/p>\n
       Learned\tCounsel\t for the appellant  particularly  drew\tour
\n       attention  to  the case of Pennington v. Crossley  and  sons
\n       (Limited)(‘) a decision of the Court of Appeal consisting of
\n       Lord Esher, M.R., A.L. Smith and Rigby, L. JJ., where Norman
\n       v.  Ricketts  (3)  was  distinguished.\tIn  that  case\tthe
\n       plaintiff sold on December 10,
\n       (1) [1955] 1 S.C.R. 185.\t\t(2) [1897]13T.L.R. 5i3.
\n       (3)(1886) 3 T.L.R. 182.\n<\/p>\n
       246<\/span><\/p>\n
       1896 the goods in question to the defendants and on the same
\n       date  an invoice was sent to the defendants under which\tthe
\n       defendants were entitled to discount if the payment was made
\n       within  14 days.\t Upon December 24 the defendants  posted  a
\n       cross cheque made payable to the plaintiff or his order; and
\n       with the cheque was sent a form of receipt for signature\t by
\n       the  plaintiff.\t The  envelope containing  the\tcheque\twas
\n       properly addressed to the plaintiff, but was not registered.
\n       There  was  no express request to send the cheque  by  post.
\n       The  cheque  was\t never received by the\tplaintiff  but\twas
\n       cashed by a stranger on the strength of a forged endorsement
\n       of the plaintiff’s name thereupon.  On an action to  recover
\n       the  price  of the goods sold and delivered  the\t defendants
\n       contended that the posting of the cheque amounting in law to
\n       payment,\t and gave evidence that for about 20  years  before
\n       this transaction payments for goods in question; as  between
\n       the plaintiff and the defendants were always made by  cheque
\n       sent  by\t post  in the form of  receipt\tgiven  above.\tThe
\n       learned\tJudge held that the course of business showed  that
\n       the  parties had agreed that the payment should be  made\t by
\n       cheque,\tand  that  the posting of the  cheque  amounted\t to
\n       payment,\t and accordingly gave judgment for the\tdefendants.
\n       The  Court of Appeal reversed this decision.  The Master\t of
\n       the  Rolls in his judgment distinguished the case of  Norman
\n       v.  Ricketts (1), stating that in that case there  was  what
\n       amounted to a request to send a cheque by post and the Court
\n       held that the posting of the cheque was payment.\t There\twas
\n       no  such request here.  The course of business  between\tthe
\n       plaintiff  and  the defendants was not taken  to\t mean  that
\n       there was a request to the defendants to send the cheque\t by
\n       post  and  that\tthe plaintiffs would run the  risk  of\tthe
\n       cheques miscarrying in the transit.  The defendants sent\t to
\n       the plaintiff cheques by post on the various sales, together
\n       with a form of receipt to be signed by him independently\t of
\n       any arrangement.\t There was nothing in the circumstances\t to
\n       warrant\tthe conclusion that putting the cheque in the  post
\n       was  to’\t be  taken as the delivery of  the  cheque  to\tthe
\n       plaintiff, the only facts
\n       (1)  (1886) 3 T.L.R. 182.\n<\/p>\n
       247<\/span><\/p>\n
       being  that the defendants always sent cheques by  post\tand
\n       that  when  the\tplaintiff received them he  sent  back\tthe
\n       receipt duly signed.\n<\/p>\n
       This  case  does\t not  militate against\tthe  ratio  of\tthe
\n       decision\t in Norman -v.\tRicketts (1), but  really  confirms
\n       the  same.  If on the facts and circumstances of\t that  case
\n       the  Court  of  Appeal had been able to\tfind  any  request,
\n       express or implied, to send the cheques by post the decision
\n       would  certainly have been confirmed but in so far as  there
\n       was nothing in the circumstances of the case from which such
\n       an inference could be raised the Court of Appeal observed:-
\n       It would be most monstrous to infer from those circumstances
\n       a  request to send a cheque by post and that  the  plaintiff
\n       would  consider\tthat he had received it as soon as  it\twas
\n       posted.”\n<\/p>\n
       The  other  Lord\t Justices delivered judgment  to  the  same
\n       effect and the appeal was allowed.\n<\/p>\n
       The  above  ratio is really determinative  of  the  question
\n       before  us.   The stipulation in the  contract  between\tthe
\n       appellant  and the Government was that the payment would\t be
\n       made  by\t cheques.  The Government of India was\tlocated\t in
\n       Delhi and the cheques would be necessarily drawn by it  from
\n       Delhi.\tCould it be imagined that in the normal\t course\t of
\n       affairs\tthe cheques thus drawn in Delhi would be sent by  a
\n       messenger  to  Baroda so that they may be delivered  to\tthe
\n       appellant  in Baroda?  Or that the officer  concerned  would
\n       come  to\t Baroda\t himself  and hand the\tsame  over  to\tthe
\n       appellant in Baroda ? The only reasonable and proper way\t of
\n       dealing\twith  the situation was that the payment  would\t be
\n       made  by\t cheques  which the Government would  send  to\tthe
\n       appellant  at  Baroda by post.  According to the\t course\t of
\n       business\t usage\tin  general  which  appears  to\t have  been
\n       followed\t in this case, the parties must have intended  that
\n       the  cheques should be sent by post which is the\t usual\tand
\n       normal  agency for transmission of such articles.   If  that
\n       were  so,  there was imported by\t necessary  implication\t an
\n       implied request by the appellant to send the cheques by post
\n       from  Delhi thus constituting the Post Office its agent\tfor
\n       the purposes of receiving those payments.
\n       (1)  (1886) 3 T.L.R 182.\n<\/p>\n
       248<\/span><\/p>\n
       Learned Counsel for the appellant further drew our attention
\n       to  certain provisions of the Post Office Act, 1898 and\tthe
\n       postal regulations framed thereunder and tried to argue that
\n       the  Post Office was really the agent of the Government\tand
\n       the  Government could recall the cheques at any time  before
\n       they  actually reached the appellant at Baroda.\t All  these
\n       provisions were discussed by this Court in the  Commissioner
\n       of  Income-tax, Bombay South v. Messrs.\tOgale  Glass  Works
\n       Ltd.<\/a> (1), and it was held that these provisions did not help
\n       the   assessee.\t The  position\tas  it\tobtains\t was   thus
\n       summarised at p. 204:-\n<\/p>\n
       ”  there can be no doubt that as between the sender and\tthe
\n       addressee it is the request of the addressee that the cheque
\n       be sent by post that makes the post office the agent of\tthe
\n       addressee.  After such request the addressee cannot be heard
\n       to  to  say  that the post office was  not  his\tagent  and,
\n       therefore,  the loss of the cheque in transit must  fall\t on
\n       the  sender on the specious plea that the sender having\tthe
\n       very  limited  right to reclaim the cheque  under  the  Post
\n       Office  Act,  1898, the post-office was his agent,  when\t in
\n       fact  there was no such reclamation.  Of course if there\t be
\n       no  such request, express or implied, then the  delivery\t of
\n       the  letter or the cheque to the post-office is delivery\t to
\n       the agent of the sender himself.”\n<\/p>\n
       In our opinion the principle which has been enunciated by us
\n       in  the Commissioner of Income-tax, Bombay South v.  Messrs.
\n       Ogale  Glass Works Ltd.<\/a> (1), is applicable to the  facts\t of
\n       the  present  case,  even though the words ”  to\t remit\tthe
\n       amount  by cheque ” have not been specifically used  herein.
\n       Non-user of those words does not make any difference to\tthe
\n       position\t and it is not possible to distinguish the  present
\n       case from that case merely on this ground.\n<\/p>\n
       We are, therefore, of opinion, that the Income-tax Appellate
\n       Tribunal\t was right in the conclusion to which it  came\tand
\n       these appeals must accordingly be dismissed with costs,\tone
\n       set between the two appeals.\n<\/p>\n
       Appeals dismissed.\n<\/p>\n
       (1)[1955] 11 S.C.R. 185.\n<\/p>\n
\t\t\t\t   249<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shri Jagdish Mills Ltd vs The Commissioner Of Income-Tax, … on 12 May, 1959 Equivalent citations: 1959 AIR 1160, 1960 SCR (1) 236 Author: N H Bhagwati Bench: Bhagwati, Natwarlal H. PETITIONER: SHRI JAGDISH MILLS LTD. Vs. RESPONDENT: THE COMMISSIONER OF INCOME-TAX, BOMBAY NORTH, KUTCH AND DATE OF JUDGMENT: 12\/05\/1959 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-24212","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShri Jagdish Mills Ltd vs The Commissioner Of Income-Tax, ... on 12 May, 1959 - 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\/shri-jagdish-mills-ltd-vs-the-commissioner-of-income-tax-on-12-may-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Jagdish Mills Ltd vs The Commissioner Of Income-Tax, ... on 12 May, 1959 - 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