{"id":81293,"date":"1965-03-22T00:00:00","date_gmt":"1965-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-west-vs-gungadhar-banerjee-and-co-p-ltd-on-22-march-1965"},"modified":"2019-04-08T01:13:00","modified_gmt":"2019-04-07T19:43:00","slug":"commissioner-of-income-tax-west-vs-gungadhar-banerjee-and-co-p-ltd-on-22-march-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-west-vs-gungadhar-banerjee-and-co-p-ltd-on-22-march-1965","title":{"rendered":"Commissioner Of Income-Tax, West … vs Gungadhar Banerjee And Co. (P) Ltd on 22 March, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Income-Tax, West … vs Gungadhar Banerjee And Co. (P) Ltd on 22 March, 1965<\/div>\n
Equivalent citations: 1965 AIR 1977, \t\t 1965 SCR (3) 439<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K.<\/div>\n
           PETITIONER:\nCOMMISSIONER OF INCOME-TAX, WEST BENGAL,CALCUTTA\n\n\tVs.\n\nRESPONDENT:\nGUNGADHAR BANERJEE AND CO. (P) LTD.\n\nDATE OF JUDGMENT:\n22\/03\/1965\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1965 AIR 1977\t\t  1965 SCR  (3) 439\n CITATOR INFO :\n E\t    1968 SC 883\t (6)\n R\t    1973 SC2323\t (9)\n RF\t    1976 SC 255\t (21)\n R\t    1990 SC1277\t (29)\n\n\nACT:\nIndian\tIncome-tax Act, 1922 (11 of 1922), s.  23A-Dividend-\nDistribution-Burden of showing whether low-Circumstances  to\nbe considered--\"Smallness of profit\"-Meaning  of-\"Accounting\nprofits\" and \"assessable profits\", distinction between.\n\n\n\nHEADNOTE:\nAs   the  dividend  declared  to  be  distributed   by\t the\nrespondentcompany  at its General Body Meeting was below  60\nper  cent  of the profits available  for  distribution,\t the\nIncome-Tax  Officer,  with  the\t previous  approval  of\t the\nInspecting Assistant Commissioner, passed an order under  s.\n23-A  of the Income-Tax Act directing that a certain  higher\namount shall be deemed to have been distributed as dividends\nas on the date of the annual general meeting of the Company.\nHe  found that, having regard to the profits earned  in\t the\nearlier years and the capital and taxation reserves, payment\nof  larger  dividend would not be  unreasonable.   This\t was\naffirmed,  on assessees appeals by the\tAppellate  Assistant\nCommissioner,  and the Income-tax Appellate  Tribunal.\t The\nTribunal referred the question to the High Court under\tsec.\n66(1) of the Act, which concluded that having regard to\t the\nsmallness  of  the  profits, the  order\t of  the  Income-tax\nOfficer\t was not justified and answered the question in\t the\nassessee's favour.  In appeal by certificate.\nHELD:\t  Section 23A of the Income-tax Act is in the nature\nof  a  penal  provision.   In  the  circumstances  mentioned\ntherein, the entire undistributed portion of the  assessable\nincome\tof  the\t company  is deemed  to\t be  distributed  as\ndividends.   Therefore, the Revenue has strictly  to  comply\nwith  the  conditions  laid  down  thereunder.\t The  burden\ntherefore, was upon the Revenue to prove that the conditions\nlaid  down thereunder were satisfied, before the  order\t was\nmade.\nThomas Fattorini (Lancashire) Ltd. v. Inland Revenue Commis-\nsion L.R. [1942] A.C. 643 applied.\nIn the present case the Revenue failed to discharge the said\nburden: indeed, the facts established stamp the order of the\nIncome-tax Officer as unreasonable.. [446F, G]\nThough\tthe object of the section is to prevent\t evasion  of\ntax,  the provision must be worked not from the stand  Point\nof  the tax collector but from that of a  businessman.\t The\nreasonableness\t or  the  unreasonableness  of\tthe   amount\ndistributed    as   dividends\tis   judged   by    business\nconsiderations,\t such  as the previous losses,\tthe  present\nprofits,   the\tavailability  of  surplus  money   and\t the\nreasonable  requirements of the future and  similar  others.\nIt  is\tneither\t possible  nor advisable  to  lay  down\t any\ndecisive  tests for the guidance of the Income-tax  Officer.\nIt  depends upon the facts of each case.  The only  guidance\nis his capacity to put himself in the position of a  prudent\nbusinessman.   It  is difficult to say that  the  Income-tax\nOfficer\t cannot\t take into consideration  any  circumstances\nother  than losses and smallness of profits.  This  argument\nignores the expression \"having regard to\" that precedes\nthe said words in s. 23A of the Act. [444B-E]\n440\nCommissioner of Income-tax v. Williamson Diamond Ltd.\tL.R.\n[1958] A.C. 41, applied.\nSir  Kasturchand Ltd. v. Commissioner of Income-tax,  Bombay\nCity, (1949) 17 I.T.R. 493, referred to.\nThe  words \"smallness of profit\" in s. 23A of the Act  refer\nto   actual  accounting\t profits  in  comparison  with\t the\nassessable   profits   of  the\tyear.\tThe   two   concepts\n\"accounting profits\" and \"assessable profits\" are  distinct.\nIn arriving at the assessable profits the Income-tax Officer\nmay   disallow\tmany  expenses\tactually  incurred  by\t the\nassessee;  and in computing his income he may  include\tmany\nitems  on notional basis.  But the commercial or  accounting\nprofits\t are  the  actual  profits  earned  by\tan  assessee\ncalculated on commercial principles. [445F-H.]\nCommissioner  of  Income-tax, Bombay  City  v.\tBipinchandra\nMaganlal and Co. Ltd.<\/a> (1961)41 I.T.R. 296, followed.\nIn a case where an Income-tax Officer takes action under  s.\n23A  of\t the Act before the tax for the relevant  period  is\nassessed, only the estimated tax can be deducted; but, there\nis  no\treason why, when the tax had already  been  assessed\nbefore he takes action under this section. the estimated tax\nand  not  the real tax shall be deducted  therefrom.  [445H-\n446B]\nThere is no provision in the Income-tax Act which makes\t the\nBalance Sheet final for the purpose of s. 23A of the Act  or\neven for the assessment.  It no doubt affords a prima  facie\nproof  of the financial position of the company on the\tdate\nwhen  the dividend was declared.  But nothing  prevents\t the\nparties\t in a suitable case to establish by cogent  evidence\nthat  certain  items were, either by mistake or\t by  design,\ninflated  or  deflated or that there  were  some  omissions.\n[446B-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 807 of 1963.
\nAppeal\tfrom the judgment and order dated September 4,\t1961
\nof  the Calcutta High Court Income-tax Reference No.  85  of
\n1956.\n<\/p>\n
C.K. Daphtary, Attorney General, R. Ganapathy Iyer and
\nR.   N. Sachthey, for the appellant.\n<\/p>\n
A.   V.\t Viswanatha  Sastri  and S.  C.\t Muzumdar,  for\t the
\nrespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nSubba Rao, J. This appeal by certificate raises the question
\nof  the\t construction  of the provisions of s.\t23A  of\t the
\nIndian\tIncometax  Act, 1922, hereinafter  called  the\tAct,
\nbefore it was amended by the Finance Act, 1955.
\nThe  relevant  and undisputed facts may be  briefly  stated.
\nMessrs.\t  Gungadhar  Banerjee  &  Co.  (Private)  Ltd.,\t the
\nrespondent  herein,  is a private limited company.   At\t the
\nGeneral\t Body  Meeting of the Company held  on\tDecember  6,
\n1948, the Directors declared a dividend at the rate of 5 1\/2
\nper  cent.  per share.\tThe said distribution  of  dividends
\nrelated to the accounting year 1947-48 which ended on  April
\n13, 1948.  According to the balance-sheet of the Company for
\nthat  year  the\t net  profit  for  the\tsaid  year  was\t Rs.
\n1,28,112\/7\/5.\tThe  taxation reserve was Rs.  56,000.\t The
\nprofit
\n441<\/span>
\nleft  was Rs. 72,000.  The Directors declared a dividend  at
\nthe  rate  of  51 per cent. per share thus  making  a  total
\ndistribution  of Rs. 44,000.  On that basis the profit\tthat
\nwas  available\tfor  further distribution  was\tRs.  28,000.
\nThough\tunder  the balance-sheet the estimated tax  was\t Rs.
\n66,000,\t the tax assessed for the year was Rs.\t79,400.\t  If
\nthe  difference between the tax assessed and  the  estimated
\ntax was also deducted from the profits, there would only  be
\na  sum\tof  Rs. 4,000 that  would  remain  as  undistributed
\nprofits.\n<\/p>\n
The  Income-tax\t Officer assessed the total  income  of\t the
\nassessee  for  the  year 1948-49  at  Rs.  2,66,766.   After
\ndeducting the tax payable under the two heads, namely,\tI.T.
\nof Rs. 81,517\/13\/0 and C.T. of Rs. 33,345\/12\/0, he held that
\na sum of Rs. 1,51,902\/7\/0 was available for distribution  to
\nthe shareholders as dividends.\tAs the amount distributed by
\nthe Company was below 60 per cent. of the profits  available
\nfor distribution, the Income-tax Officer, with the  previous
\napproval of the Inspecting Assistant Commissioner of Income-
\ntax, passed an order under s. 23-A of the Act directing that
\nthe  amount  of Rs 1,07,902 (i.e., Rs.\t1,51,902  minus\t Rs.
\n44,000=\t  Rs.  1,07,902)  shall\t be  deemed  to\t have\tbeen
\ndistributed  as\t dividends  as on the  date  of\t the  annual
\ngeneral\t meeting  of  the Company.  He\tfound  that,  having
\nregard\tto the profits earned in the earlier years  and\t the
\ncapital\t and taxation reserves, payment of larger  dividends
\nwould not be unreasonable.\n<\/p>\n
The assessee preferred an appeal to the Appellate  Assistant
\nCommissioner  against  the  order  made\t by  the  Income-tax
\nOfficer\t under\ts. 23A of the Act.  By the time\t the  appeal
\ncame  to be disposed of, in an appeal against the  order  of
\nassessment  the assessed income was reduced by a sum of\t Rs.
\n80,926.\t  Notwithstanding the said deduction, as the  amount
\nof  Rs. 44,000 distributed by the Company was less  than  60
\nper  cent. of the balance of Rs. 1,64,440 arrived at on\t the
\nbasis  of the revised calculation, the\tAppellate  Assistant
\nCommissioner held that an action under s. 23A of the Act was
\njustified.   He\t further held that the assesee\tincurred  no
\nlosses\tin the previous years, that in almost all  the\tpast
\nassessments  the assessee showed substantial  profits,\tthat
\nthe profits disclosed in the year of account were not  small
\nand that, therefore, the direction to pay a higher  dividend
\nwas not unreasonable.\n<\/p>\n
On a further appeal, the Income-tax Appellate Tribunal\theld
\nthat  the amount of profits should be judged only  from\t the
\nbalancesheet and that judged by the figures given thereunder
\na dividend to the extent of Rs. 64,000 being 60 per cent. of
\nthe  assessed profits less income-tax. could be\t distributed
\nand that such distribution was not unreasonable.
\nThe Tribunal referred the following question under s.  66(1)
\nof the Act for the decision of the High Court of Calcutta:\n<\/p>\n
\t      “Whether on the facts and in the circumstances
\n\t      of  the  case any larger\tdividend  than\tthat
\n\t      declared\tby the company could  reasonably  be
\n\t      distributed within the meaning
\n\t      442<\/span>
\n\t      of  Section 23A of the Indian  Income-tax\t Act
\n\t      and  the\tapplication of Section\t23A  of\t the
\n\t      Indian  Income-tax Act was in accordance\twith
\n\t      law.”\n<\/p><\/blockquote>\n
The  High Court held that the Tribunal went wrong in  taking
\ninto  consideration  the past profits instead  of  the\tpast
\nlosses,\t the taxation reserves without considering the\tpast
\nliabilities  for taxation, and the profits for the  year  in
\nquestion disclosed in the balance-sheet, ignoring the actual
\ntax assessed for that year.  It came to the conclusion that,
\nhaving regard to the smallness of the profits, the order  of
\nthe Income-tax Officer was not justified.  In the result, it
\nanswered  both parts of the question referred to it  in\t the
\nnegative.  Hence the appeal.\n<\/p>\n
Learned\t Attorney-General, appearing for the  Revenue,\tcon-
\ntended\tthat the balance-sheet of a company on the basis  of
\nwhich  dividends  were declared was final  and\tthe  profits
\ndisclosed  thereunder  would be the correct  basis  for\t the
\nIncome-tax  Officer acting under s. 23A of the Act; and,  as
\nthe  balance-sheet  of\tthe company for\t the  relevant\tyear
\nshowed\ta  sum of Rs. 1,05,950 as “capital  reserve  brought
\nforward”,  a sum of Rs. 5,73,161 as taxation reserve, and  a
\nsum  of Rs. 56,000 as estimated tax, the Income-tax  Officer
\nrightly held that the financial condition of the Company was
\nsufficiently  sound to warrant an order under s. 23A of\t the
\nAct.   Alternatively  he contended that\t if  the  respondent
\ncould  be  permitted  to  go  behind  the  balance-sheet  to
\nascertain  the\treal profit, the Department should  also  be
\nlikewise allowed to go behind the balance-sheet to show that
\nthe  commercial profit was larger and the reserves  were  in
\nexcess\tof  the past liabilities and that in that  event  to
\nremand the case for ascertaining the true state of facts.
\nMr. A.V. Viswanatha Sastri, appearing for the  assessee-Com-
\npany,  contended  that\tthe burden lies on  the\t Revenue  to
\nestablish  that the dividend declared was not  a  reasonable
\none and that in the present case it had not discharged\tthat
\nburden.\t  Idle\tfurther\t argued\t that  for  the\t purpose  of
\n“testing the smallness of the profit” the Income-tax Officer
\nhad to take into consideration not the assessable Income but
\nthe commercial profit of the Company and that in the present
\ncase, having regard to the commercial profit, a\t declaration
\nof  a  higher dividend would be\t unreasonable.\t He  pleaded
\nthat,  should  this Court hold that the\t Income-tax  Officer
\ncould  establish  that\tthe  reserves  were  more  than\t the
\nliabilities, the assessee should also be permitted to  prove
\nwhat were its real, commercial profits and that the reserves
\nwere far less than the demands.\n<\/p>\n
The contentions of learned counsel turn upon the  provisions
\nof s.\t  23A  of  the\tAct, before it was  amended  by\t the
\nFinance\t Act  of 1955.\tThe material part  of  that  section
\nreads:\n<\/p>\n
\t      “(1) Where the Income-tax Officer is satisfied
\n\t      that  in\trespect\t of any\t previous  year\t the
\n\t      profits and gains distributed as dividends  by
\n\t      any company up to the end of the
\n\t      443<\/span>
\n\t      sixth  month  after  its\taccounts  for\tthat
\n\t      previous\tyear are laid before the company  in
\n\t      general  meeting are less than sixty per\tcent
\n\t      of  the  assessable income of the\t company  of
\n\t      that  previous year, as reduced by the  amount
\n\t      of  incometax  and super-tax  payable  by\t the
\n\t      company in respect thereof he shall, unless he
\n\t      is  satisfied  that having  regard  to  losses
\n\t      incurred by the company in earlier years or to
\n\t      the smallness of the profit made, the  payment
\n\t      of  a dividend or a larger dividend than\tthat
\n\t      declared would be unreasonable, make with\t the
\n\t      previous approval of the Inspecting  Assistant
\n\t      Commissioner an order in writing that the\t un-
\n\t      distributed  portion of the assessable  income
\n\t      of  the  company\tof  that  previous  year  as
\n\t      computed\tfor income-tax purposes and  reduced
\n\t      by  the  amount of  income-tax  and  super-tax
\n\t      payable  by  the company\tin  respect  thereof
\n\t      shall  be deemed to have been  distributed  as
\n\t      dividends\t amongst the shareholders as at\t the
\n\t      date  of\tthe general meeting  aforesaid,\t and
\n\t      thereupon\t the proportionate share thereof  of
\n\t      each  shareholder\t shall be  included  in\t the
\n\t      total  income  of\t such  shareholder  for\t the
\n\t      purpose of assessing his total income.”\n<\/p><\/blockquote>\n
The  section is in three parts: the first part\tdefines\t the
\nscope  of the jurisdiction of the Income-tax Officer to\t act
\nunder  s. 23A of the Act; the second part provides  for\t the
\nexercise  of  the  jurisdiction\t in  the  manner  prescribed
\nthereunder-, and the third part provides for the  assessment
\nof  the\t statutory  dividends in the hands  of\tthe  share.-
\nholders.    This   section   was   introduced\tto   prevent
\nexploitation of juristic personality of a private company by
\nthe  members  thereof  for the\tpurpose\t of  evading  higher
\ntaxation.  To act under this, section the Income-tax Officer
\nhas  to be satisfied that the dividends distributed  by\t the
\nCompany\t during\t the  prescribed period are  loss  than\t the
\nstatutory percentage, i.e., 60 per cent., of the  assessable
\nincome\tof the Company of the previous year less the  amount
\nof  Income-tax\tand  super-tax payable\tby  the\t Company  in
\nrespect\t thereof.   Unless  there is  a\t deficiency  in\t the
\nstatutory   percentage,\t the  Income-tax  Officer   has\t  no
\njurisdiction  to  take further action thereunder.   If\tthat
\ncondition is complied with, he shall make an order declaring
\nthat the undistributed portion of the assessable income less
\nthe  said taxes shall be deemed to have been distributed  as
\ndividends amongst the shareholders.  But before doing so,  a
\nduty  is cast on him to satisfy himself that, having  regard
\nto  the losses incurred by the company in earlier  years  or
\n“the  smallness\t of  the  profit made,”\t the  payment  of  a
\ndividend  or a larger dividend than that declared  would  be
\nreasonable.   The argument mainly centered on this  part  of
\nthe  section.\tWould  the satisfaction\t of  the  Income-tax
\nOfficer depend only on the two circumstances, namely, losses
\nand  smallness\tof profit?  Can he take\t into  consideration
\nother  relevant\t circumstances?\t What  does  the  expression
\n“profit”  mean?\t Does it mean only the assessable income  or
\ndoes it mean commercial or
\n444<\/span>
\naccounting profits?  If the scope of the section is properly
\nappreciated  the  answer  to the  said\tquestions  would  be
\napparent.  The Incometax Officer, acting under this section,
\nis not assessing any income to tax: that will be assessed in
\nthe  hands  of\tthe shareholders.  He  only  does  what\t the
\ndirectors should have done.  He puts himself in the place of
\nthe directors.\tThough the object of the section is to\tpre-
\nvent  evasion of tax, the provision must be worked not\tfrom
\nthe  standpoint\t of  the tax collector but from\t that  of  a
\nbusinessman.\tThe   yardstick\t is  that   of\t a   prudent
\nbusinessman.  The reasonableness or the unreasonableness  of
\nthe  amount distributed as dividends is judged\tby  business
\nconsiderations,\t such  as the previous losses,\tthe  present
\nprofits,   the\tavailability  of  surplus  money   and\t the
\nreasonable  requirements of the future and  similar  others.
\nHe must take an overall picture of the financial position of
\nthe  business.\tIt is neither possible nor advisable to\t lay
\ndown  any decisive tests for the guidance of the  Income-tax
\nOfficer.  It depends upon the facts of each case.  The\tonly
\nguidance is his capacity to put himself in the position of a
\nprudent\t businessman  or the director of a company  and\t his
\nsympathetic and objective approach to the difficult  problem
\nthat  arises in each case.  We find it difficult  to  accept
\nthe  argument that the Income-tax Officer cannot  take\tinto
\nconsideration  any  circumstances  other  than\tlosses\t and
\nsmallness of profits.  This argument ignores the  expression
\n“having regard to” that precedes the said words.
\nOn the interpretation of the words “having regard to” in  s.
\n23A  of\t the Act, the decision of a Division  Bench  of\t the
\nBombay High Court, consisting of Chagla C. J., and Tendolkar
\nJ.,  in Sir Kasturchand Ltd. v. Commissioner of\t Income-tax,
\nBombay\tCity(1)\t was relied upon by the\t appellant.   Chagla
\nC.J.,  speaking for the Court, held in that case  that\t“the
\nreasonableness\tor  unreasonableness  of the  payment  of  a
\ndividend  or  a larger dividend has to be judged  only\twith
\nreference  to the two facts mentioned in the section,  viz.,
\nlosses\tincurred  by the company in earlier  years  and\t the
\nsmallness of the profit.” To put the contrary  construction,
\nthe learned Chief Justice said, “would be to import into  it
\nwords  which the Legislature did not think fit to insert  in
\nthat  section  and  to expand the ambit\t of  the  discretion
\nexercised by the Income-tax Officer.” But the learned  Chief
\nof  Justice  did  not expressly consider the  scope  of\t the
\nexpression  “having  regard to” found in the  section.\t The
\nJudicial   Committee  in  Commissioner\tof   Income-tax\t  v.
\nWilliamson  Diamond Ltd.(2) had to consider the scope of  s.
\n21(1)\tof   the   Tanganyika\tIncome-tax   (Consolidation)
\nOrdinance, 27 of 1950, which was pari materia with s. 23A of
\nthe  Act.   Adverting to the argument based upon  the  words
\n“having regard to”, their Lordships observed:\n<\/p>\n
\t      “The form of words used no doubt lends  itself
\n\t      to the suggestion that regard should, be\tpaid
\n\t      only  to\tthe two matters\t mentioned,  but  it
\n\t      appears to their Lordships that it is
\n\t      (1)   [1949] 17 I.T.R. 493.\n<\/p><\/blockquote>\n
\t      (2)   L.R. [1958] A.C. 41.49.\n<\/p><\/blockquote>\n
\t      445<\/span><\/p>\n
\t      impossible  to  arrive at a conclusion  as  to
\n\t      reasonableness by considering the two  matters
\n\t      mentioned\t  isolated   from   other   relevant
\n\t      factors.\t Moreover, the statute does not\t say
\n\t      “having  regard  only”  to  losses  previously
\n\t      incurred\tby the company and to the  smallness
\n\t      of the profits made.  No answer, which can  be
\n\t      said  to\tbe in any measure adequate,  can  be
\n\t      given to the question of “unreasonableness” by
\n\t      considering  these two matters  alone.   Their
\n\t      Lordships are of the opinion that the  statute
\n\t      by  the  words used, while  making  sure\tthat
\n\t      “losses  and smallness of profits”  are  never
\n\t      lost  sight of, requires all matters  relevant
\n\t      to  the  question of  unreasonableness  to  be
\n\t      considered.   Capital losses, if\testablished,
\n\t      would be one of them.”\n<\/p><\/blockquote>\n
With  great respect, we entirely agree with this view.\t The
\ncontrary view unduly restricts the discretion of the Income-
\ntax  Officer and compels him to hold a\tparticular  dividend
\nreasonable though in fact it may be unreasonable.
\nThe expression “smallness of profit” came under the judicial
\nscrutiny of this Court in Commissioner of Income-tax, Bombay
\nCity  v. Bipinchandra Maganlal & Co. Ltd.<\/a>(1) Therein,  Shah,
\nJ., speaking for the Court observed thus:\n<\/p>\n
\t      “Smallness of the profit in section 23A has to
\n\t      be   adjudged  in\t the  light  of\t  commercial
\n\t      principles  and  not  in the  light  of
\n\t      total  receipts,\tactual or  fictional.\tThis
\n\t      view  appears to have been taken by  the\tHigh
\n\t      Courts   in  India  without  any\t dissentient
\n\t      opinion.”\n<\/p><\/blockquote>\n
The learned, Judge laid down the following test: “Whether it
\nwould be unreasonable to distribute a larger dividend is  to
\nbe  judged  in\tthe  light of the profits  of  the  year  in
\nquestion.” If the assessable income was the test and if\t the
\ncommercial profits are small, the learned Judge pointed out,
\nthe company would have to fall back either upon its reserves
\nor  upon  its capital which in law it could  not  do.\tThis
\ndecision  is binding on us and no further citation  in\tthis
\nregard\tis  called  for.  These\t two  concepts,\t “accounting
\nprofits”   and\t“assessable  profits”,\tare  distinct.\t  In
\narriving  at the assessable profits the\t Income-tax  Officer
\nmay   disallow\tmany  expenses\tactually  incurred  by\t the
\nassessee;  and in computing his income, he may include\tmany
\nitems  on notional basis.  But the commercial or  accounting
\nprofits\t are  the  actual  profits  earned  by\tan  assessee
\ncalculated  on commercial principles.  Therefore, the  words
\n“smallness  of\tprofit”\t in  the  section  refer  to  actual
\naccounting profits in comparison with the assessable profits
\nof the year.\n<\/p>\n
Another\t incidental question is whether for the\t purpose  of
\nascertaining the net commercial profits the tax estimated or
\nthe  tax  actually assessed shall be deducted.\t In  a\tcase
\nwhere an Income-tax Officer takes action under s. 23A of the
\nAct before the tax for the relevant period is assessed, only
\nthe estimated tax can be deduct-\n<\/p>\n
(1) (1961) 41 T.T.R. 290, 296,
\np(N)4SCI-\n<\/p>\n
446<\/span><\/p>\n
ed  but,  there is no reason why, when the tax\thad  already
\nbeen assessed before he takes action under this section, the
\nestimated  tax\tand  not  the real  tax\t shall\tbe  deducted
\ntherefrom.   In this view, in the present case to  ascertain
\nthe  commercial profits what should be deducted is  not\t the
\ntax shown in the balance-sheet but the actual tax  assessed,
\non the income of the Company.\n<\/p>\n
Another\t question  raised is whether  the  balance-sheet  is
\nfinal  and both the parties are precluded  from\t questioning
\nits  correctness in any respect.  There is no  provision  in
\nthe  Income-tax Act which makes the balance-sheet final\t for
\nthe purpose of s. 23A of the Act or even for the assessment.
\nIt  no\tdoubt affords a prima facie proof of  the  financial
\nposition  of the company on the date when the  dividend\t was
\ndeclared.   But nothing prevents the parties in\t a  suitable
\ncase  to  establish by cogent evidence\tthat  certain  items
\nwere,  either by mistake or by design, inflated or  deflated
\nor  that  there\t were  some omissions.\t It  does  not\talso
\npreclude  the  assessee from proving that  the\testimate  in
\nregard\tto  certain  items has turned out to  be  wrong\t and
\nplacing\t the actual figures before the\tIncome-tax  Officer.
\nBut in this case no attempt was made before the Tribunal  to
\ncanvass\t the correctness of the figures either on the  debit
\nside  or  on  the credit side and we do\t not  think  we\t are
\njustified  to  give  another opportunity to  either  of\t the
\nparties\t in this regard.  Before the Tribunal there  was  no
\ndispute\t that the actual tax assessed for the relevant\tyear
\nwas much higher than the estimated tax shown in the balance-
\nsheet.\n<\/p>\n
Section\t 23A  of  the  Act  is in  the\tnature\tof  a  penal
\nprovision.   In\t the  circumstances  mentioned\ttherein\t the
\nentire undistributed portion of the assessable income of the
\nCompany\t  is   deemed  to  be  distributed   as\t  dividends.
\nTherefore,  the\t Revenue  has strictly to  comply  with\t the
\nconditions  laid  down thereunder.  The\t burden,  therefore,
\nlies upon the Revenue to prove that the conditions laid down
\nthereunder  were  satisfied before the order was  made:\t see
\nThomas\t Fattorini  (Lancashire)  Ltd.\tv.  Inland   Revenue
\nCommissioners(1).  In the present case the Revenue failed to
\ndischarge  the\tsaid burden: indeed, the  facts\t established
\nstamp the order of the Income-tax Officer as unreasonable.
\nThe  assessment orders passed by the Income-tax Officer\t are
\nnot before the Court.  The balance-sheet shows a net  profit
\nof  Rs.\t 1,28,112\/7\/5  whereas the  Income-tax\tOfficer\t has
\ncomputed  the assessable income at Rs. 2,66,766,  which\t was
\nlater reduced in appeal by Rs. 80,925.\tThere is no evidence
\non  the\t record\t that  the  real  commercial  profits\twere
\nartificially  reduced in the balance. sheet.  Nor  is  there
\nevidence to show what part of the income assessed represents
\ncommercial  profits, and what part the notional income.\t  In
\nthe  circumstances  it\tmust  be  assumed  that\t the  amount
\nmentioned  in  the balance-sheet correctly  represented\t the
\ncommercial profits.\n<\/p>\n
(1)  L.R. [1942] A.C.643.\n<\/p>\n
447<\/span><\/p>\n
From the figures already extracted at an earlier stage it is
\nmanifest that the net commercial profit was barely Rs. 4,000
\nand it is not possible to hold that it was not\tunreasonable
\nfor  the Income-tax Officer to make an order to\t the  effect
\nthat  the additional sum of Rs. 64,000 should be deemed,  to
\nhave been distributed as dividends amongst the shareholders.
\nIn  the result we hold that the order of the High  Court  is
\ncorrect and dismiss the appeal with costs.
\nAppeal dismissed.\n<\/p>\n
448<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Income-Tax, West … vs Gungadhar Banerjee And Co. (P) Ltd on 22 March, 1965 Equivalent citations: 1965 AIR 1977, 1965 SCR (3) 439 Author: K Subbarao Bench: Subbarao, K. PETITIONER: COMMISSIONER OF INCOME-TAX, WEST BENGAL,CALCUTTA Vs. RESPONDENT: GUNGADHAR BANERJEE AND CO. (P) LTD. DATE OF JUDGMENT: 22\/03\/1965 BENCH: SUBBARAO, […]<\/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-81293","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Income-Tax, West ... vs Gungadhar Banerjee And Co. 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