Vildirect: IncomeTax-caselaws-1978-VIL-682-CAL-DT

1978-VIL-682-CAL-DT

Equivalent Citation: [1979] 117 ITR 754

CALCUTTA HIGH COURT

Date: 28.08.1978

VISHNU COTTON MILLS LIMITED

COMMISSIONER OF INCOME-TAX, WEST BENGAL I

BENCH

Judge(s) : BIMAL CHANDRA BASAK., DIPAK KUMAR SEN

JUDGMENT

DIPAK KUMAR SEN J.--This reference under the I.T. Act, 1961, arises from the assessment of Messrs. Vishnu Agencies (P.) Ltd., the assessee, in the assessment years 1963-64, 1964-65 and 1965-66, the relevant previous years having ended on the 31st January of the years 1963, 1964 and 1965, respectively.

During the relevant years, the assessee had engaged or employed a number of persons under different agreements in writing as follows :

1. Agreement dated the 2nd February, 1959.

This agreement was entered into by and between the assessee and one Mangilal Sethia whereby the assessee engaged the latter as its sole selling agent in respect of spun R.C.C. pipes and collars manufactured by the assessee on the following terms and conditions :

(a) The agency would be effective on and from the 1 st February, 1959.

(b) The sole selling agent would deposit a sum of Rs. 10,000 to be held by the assessee without interest during the subsistence of the agreement.

(c) The sole selling agent would not during his appointment purchase or receive for sale any commodity similar to those manufactured by the assessee from any third party in his own name or account or in the name or on account of any other person or persons.

(d) During the subsistence of the agreement the assessee would not appoint any other sole selling agent to sell any of its produce but this would be without prejudice to the rights of the assessee to appoint agents, distributors or sub-distributors.

(e) On all sales of the products of the assessee, through any agent or distributor or sub-distributor or direct to dealers or consumers, the sole selling agent would be paid a commission of 4% on the listed price.

(f) The agreement would in the first instance be for a period of three years from the 1st February, 1959, to the 31st January, 1962, unless determined earlier otherwise.

(g) The sole selling agent would bear all expenses of establishment, publicity, godown rent, etc., that might have to be incurred in connection with the promotion and sale of the goods of the assessee.

2. Agreement dated the 8th December, 1959.

This agreement was entered into by and between the assessee and the partnership firm, Mangilal Bhikamchand, whereby the latter was appointed as the selling agent of the assessee for " Konark Cement ", for the sale of which the assessee had been appointed as organisers on, inter alia, the following terms and conditions :

(a) The agency would be for the area known as Calcutta for a period of four years with effect from the 1st February, 1960.

(b) The assessee would not during the continuance of the agreement appoint any other selling agent for Konark Cement but the right to appoint sub-stockists for the sale thereof in the said area would be reserved.

(c) All orders secured by the selling agent would be passed on direct to the assessee and on all orders placed by them the selling agent would be entitled to a commission of Rs. 3 per ton, which would become due and payable only on the realisation of the dues of the assessee.

(d) The selling agent would be responsible to the assessee for all dues in respect of all orders and if within a period of six weeks from the date of supply in terms of the orders placed by the selling agent the cost and other charges of such supply would not be realised by the assessee the amount so due and payable to the assessee would be recoverable from the selling agent.

3. Agreement dated the 28th September, 1962.

This agreement was entered into by and between the assessee and the said partnership firm, Mangilal Bhikamchand, whereby the latter was appointed the selling agent of the assessee for sale of " Rockfort Cement " manufactured by Messrs. Dalmia Cement (Bharat) Ltd. for the area known as Greater Calcutta, for a period of 3 years with effect from the 1st October, 1962, on terms and conditions identical with those in the aforesaid agreement dated the 8th December, 1959.

4. Agreement dated the 13th April, 1962.

This agreement was entered into by and between the assessee and Messrs. Sampat & Co. whereby the latter was appointed as the manufacturing supervisor. It was recorded in the said agreement that the assessee, at the instance of the manufacturing supervisor, had submitted a tender being Tender No. KMT/358/4 for supply of class " NP-2 ", nine inches diameter spun R.C.C. pipes and collars to the joint Director of Agriculture (Engg.), Government of West Bengal, at the rate of Rs. 2.62 per running foot and at the rate of Rs. 1.81 per piece of collar. The terms and conditions of the said agreement were, inter alia, as follows :

(a) The said manufacturing supervisor would attend and arrange for acceptance of the said tender by the authority concerned.

(b) The manufacturing supervisor would be held responsible for the acceptance of the said tender without any change or alteration by the authorities concerned.

(c) After acceptance of the said tender the manufacturing supervisor would be responsible for intimating the correct specification of the pipes and collars to the staff of the assessee at its factory and for supervising the manufacture of the goods tendered.

(d) Any deviation or defect in the goods tendered detected later on inspection by the authority would be on the account of the manufacturing supervisor and any consequential loss or damage for which the assessee might be held liable would be recoverable from the manufacturing supervisor entirely.

(e) The manufacturing supervisor would be responsible for delivery and transport of the goods manufactured under their supervision and in the event of any breakage or damage in transit or otherwise they would make good such losses to the assessee.

(f) The manufacturing supervisor would be responsible for acceptance of the bills and other documents submitted by the assessee to the authorities and also for seeing that such bills be passed for payment without unnecessary delay or objection.

(g) In respect of any bill refused or rejected by the authority concerned, the assessee would be at liberty to hold the manufacturing supervisor liable for any financial loss or damage that may be caused by such refusal or rejection.

(h) The assessee would pay to the manufacturing supervisor remuneration at the rate of 0.25 per running foot in respect of spun pipes and 0.20 per collar supplied and accepted under the said tender.

(i) The manufacturing supervisor would not be entitled to any expenses in connection with services rendered by it and the stipulated remuneration would be deemed to cover all its incidental expenses.

(j) The manufacturing supervisor would not be entitled to any commission before completion and delivery at least of 60,000 running feet of pipes under the said tender.

(k) The agreement would stand terminated automatically in the event of the tender not being accepted. Otherwise, it would be terminable on two months' notice in writing given by either party. In any case, the agreement would stand terminated on the completion of the supplies against the said tender.

Pursuant to the aforesaid agreements the assessee had paid the following commissions and/or remunerations to its agents :

1963-64 1964-65 1965-66

Rs. Rs. Rs.

1. M/s. Sampat & Co. 74,050 14,546

2. Mangilal Sethia 46,040 30,457 60,457

3. Mangilal Bhikamchand 74,530 42,340

At the assessments the assessee claimed that the commission or remuneration paid to the said persons as aforesaid were business expenditure and should be deducted in computing its income. The ITO found that one Sampat Mall Sethia was the sole proprietor of M/s. Sampat & Co. and that he was a brother of Mangilal Sethia. Bhikamchand Sethia and Kundhan Sethia, brothers of the said Mangilal Sethia, were partners of Mangilal Bhikamchand.

The ITO issued a summons under s. 131 of the I.T. Act, 1961, to Sampat & Co., pursuant whereto the said Bhikamchand Sethia, the brother and the constituted attorney of Sampat Mall Sethia, attended and deposed. The ITO found that there was no evidence to show that Sampat Mall Sethia had been responsible for acceptance of the tender of the assessee by the authority concerned. He noted that the tender of the assessee was submitted pursuant to a public notice and that there was also no evidence to establish any special knowledge of the manufacturing supervisor for supervision of the manufacture of the goods. The indemnity clauses in the agreement was found to be a dead letter as no claim had ever been preferred by the assessee against the manufacturing supervisor. The remuneration paid to Sampat & Co. was, therefore, disallowed by the ITO.

The ITO also summoned Mangilal Sethia, the sole selling agent of the assessee for spun R.C.C. pipes and collars. Mangilal appeared and stated that the business had been looked after by his brother and constituted attorney, Bhikamchand Sethia, and that he could adduce no evidence to show the nature of the services rendered to enable him earn the commission. The ITO also noted that the goods in respect of which commission had been paid to Sampat Mall Sethia and Mangilal Sethia had all been sold to Government departments. The ITO concluded that the sole selling agent had rendered no service whatsoever and any commission paid to it was ex gratia. The claim of the assessee for deduction of such commission was, therefore, rejected.

The ITO also issued a summons to the firm, Mangilal Bhikamchand, in response whereto Bhikamchand Sethia, a partner, attended and deposed. When asked if he could give the names of the parties whose orders he had secured for the assessee he promised to produce registers at a later date from which such names would appear. Ultimately, he did not produce any such register on the ground that they related to the period prior to the promulgation of the Cement Control Order. He admitted that after such control was imposed he had nothing to do towards securing orders. Accordingly, the claim of the assessee for deduction of payments made to this party was also rejected.

Being aggrieved, the assessee preferred appeals from the said orders of assessment and contended before the AAC that commission paid to the said persons had been accepted by the revenue in assessment years earlier to those in this reference and had been allowed. The AAC, however, found that there was not even a single instance when any service was rendered by any of the said agents and, accordingly, he confirmed the orders of the ITO.

The assessee preferred further appeals to the Tribunal. It was reiterated on behalf of the assessee that commissions paid to Mangilal Sethia and Mangilal Bhikamchand in respect of earlier years had been allowed and there was no reason to take a different view in the years under appeal. It was contended further that agreements had been duly executed and commission had been paid in terms thereof. The agreements were genuine and commissions had been paid by cheques to the agents who were all assessed to income-tax. Accordingly, it was submitted that the ITO was not justified in disallowing the commissions paid. It was submitted, in particular, that M/s. Sampat & Co. was responsible for getting the tender accepted by the Government of West Bengal even though the said tender was the highest. They were also responsible for supervision of manufacture and supply of the goods.

In respect of Mangilal Sethia and Mangilal Bhikamchand, it was submitted that payments had been made in terms of the agreements with them and had been admitted by them as having been received. It was contended that though control was imposed on the sale of cement in 1960, the agreement had been executed on the 8th December, 1959, with Mangilal Bhikamchand in respect of Konark Cement and, even after the imposition of control, the agent continued to canvass for the sale of Konark cement.

The Tribunal found that neither the assessee nor Sampat & Co. could adduce any evidence to show the nature of the services rendered by Sampat & Co. or to establish that Sampat & Co. was in fact responsible for having the said tender accepted. Bhikamchand Sethia admitted that there was no correspondence between Sampat & Co. and the Government in this regard. He was unable to give the names of the officers who accepted the tender. He admitted that there was no direct evidence in writing to show that Sampat & Co. acted in the matter or that they had attended to the loading or unloading of the goods. The Tribunal held that mere entering into an agreement and payment of commission would not satisfy the requirement of law.

In respect of the commission paid to the sole selling agent, Mangilal Sethia, the Tribunal found that the supply of spun R.C.C. pipes were mainly to the Government departments. Mangilal Sethia could not state or explain the procedure which he had adopted for effecting the said sales and admitted that it was his brother who was looking after the business. This brother was not produced before the ITO. The Tribunal held that neither the assessee nor the sole selling agent had shown the nature of services rendered by the latter and concluded that the commission paid was not wholly and exclusively for the purpose of the business of the assessee.

In respect of the commission paid to Mangilal Bhikamchand, the Tribunal found that the partner of this firm could not adduce any evidence to prove the orders secured. The books were not produced in spite of a promise to do so. He further admitted that after the imposition of control on cement from the 1st June, 1961, there was no question of booking further orders. The Tribunal held that this firm did not render any service to the assessee and, therefore, payment of commission to it was not wholly and exclusively for the purposes of the business of the assessee and, therefore, the amount paid could not be allowed as a lawful deduction.

The Tribunal concluded that the agreements entered into by the assessee were nominal and make-believe ones. The appeal of the assessee on these claims were accordingly dismissed.

On an application of the assessee under s. 256(2) of the I.T. Act, 1961, this court has directed the Tribunal to draw up a statement of case and refer the following questions of law arising out of the order of the Tribunal for opinion.

Assessment year 1963-64 :

" 1. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 46,040 paid to Sri Mangilal Sethia as sole selling agency commission on sale of R.C.C. pipes and collars was not deductible as business expenditure under section 37(1) of the Income- tax Act, 1961 ?

2. Whether, in the facts and circumstances of the case, the Tribunal's conclusion that the said expenditure was not incurred wholly and exclusively for the purpose of the assessee's business is vitiated by reason of misdirection, omission to consider relevant evidence or reliance on irrelevant material ?

3. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 74,530 paid to Messrs. Mangilal Bhikamchand as selling agency commission for sale of Konark and Rockfort cement in Calcutta was not deductible as business expenditure under section 37(1) of the Income-tax Act, 1961 ?

4. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 74,080 paid to Messrs. Sampat & Co. as manufacturing supervisor's remuneration on the supply of R.C.C. spun pipes and collars to the Government of West Bengal was not deductible as business expenditure under section 37(1) of the Income-tax Act, 1961 ?

5. Whether, in the facts and circumstances of the case, the Tribunal's finding that the agreements with the 3 parties are nominal and make-believe ones is based on any material and evidence on record ? "

Assessment year 1964-65 :

" (1) Whether, on the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 30,437 paid to Sri Mangilal Sethia as sole selling agency commission on sale of R.C.C. pipes and collars was not deductible as business expenditure under section 37(1) of the Income-tax Act, 1961 ?

3. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 42,349 paid to Messrs. Mangilal Bhikamchand as selling agency commission for sale of Konark and Rockfort cement in Calcutta was not deductible as business expenditure under section 37(1) of the Income-tax Act, 1961 ?

4. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 14,545 paid to Messrs. Sampat & Co. as manufacturing supervisor's remuneration on the supply of R.C.C. pipes (spun) and collars to the Government of West Bengal was not deductible as business expenditure under section 37(1) of the Income-tax Act, 1961 ?

Assessment year 1965-66 :

" 1. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 60,457 paid to Sri Mangilal Sethia as sole selling agency commission on sale of R.C.C. pipes and collars was not deductible, as business expenditure under section 37(1) of the Income-tax Act, 1961 ?

3. Whether, in the facts and circumstances of the case, the Tribunal's finding that the agreement with the party is a nominal and make-believe one is based on any material and evidence on record ? "

Mr. Kalyan Roy, learned counsel for the assessee, contended at the hearing that the Tribunal failed to appreciate the depositions made under s. 131 of the Act before the ITO. It was specifically stated by Bhikamchand Sethia, representing Sampat & Co., that he looked after the latter's business and that the said firm negotiated the tender for the assessee with the Government of West Bengal. There was personal acquaintance with the officers of the department and correct specification of the goods were made known to the factory staff of the assessee. The said firm had attended the loading and unloading of the goods. It was admitted that the manufacturing supervisor would be responsible for damages if the goods were rejected. Mr. Roy stated that the Tribunal had ignored such evidence. He submitted further that apart from getting the tender accepted by the authority concerned the manufacturing supervisor under the agreement with the assessee had to carry out various functions and duties and undertook risk and responsibility for a number of eventualities.

Even if such eventualities did not occur, undertaking the responsibility to compensate for such risks was certainly valid and the consideration, being the remuneration at the modest rates of Rs. 0.25 per running foot of pipe and Rs. 0.20 per piece of collar, which was meant to cover all expenses of the manufacturing supervisor and would be payable only after completion of delivery of at least 60,000 running feet was bona fide and commercial. Mr. Roy submitted that the Tribunal has ignored material terms of the agreement, confining their attention only to the services to be performed in having the tender accepted.

In respect of the sole selling agent, Mangilal Sethia, Mr. Roy contended that under his agreement with the assessee he bad to deposit a sum of Rs. 10,000 without interest with the assessee. He also undertook not to accept for sale or purchase any goods similar to those manufactured by the assessee during the subsistence of the agreement and was liable to return to the assessee all unsold stocks and goods entrusted with him. He had to bear all expenses for establishment, publicity, godown, etc. The commission paid to him for the above was clearly in the nature of business expenditure and the Tribunal failed to appreciate the effect and ambit of the agreement.

The contentions of the assessee in respect of commission paid to Mangilal Bhikamchand were not pressed.

In support of his contentions Mr. Roy cited Aluminium Corporation of India Ltd. v. CIT [1972] 86 ITR 11 (SC). The facts of this case were that under an agreement entered into by and between the assessee and their selling agents for an initial period of 5 years, the selling agents were entitled to a commission on sales of all its products, whether made through the selling agents or directly to the customers. The selling agents, however, agreed to become and continue to be responsible for payment of the price due from the purchasers immediately after the goods would leave the assessee's works or godowns. The selling agents were also responsible for due fulfilment of all contracts made by the assessee and for the consequence of breach of any contract by any customer and all losses and damages arising therefrom to the assessee. In the earlier years, the commission paid to the sole selling agents had been allowed as admissible expenditure in the hands of the assessee. In the relevant assessment year, the income-tax authorities disallowed the claim on the sole ground that all the sales had been effected directly by the assessee and not by the selling agents. The Tribunal accepted the contentions of the assessee and held that such expenditure was incurred for the purpose of the assessee's business and that the agreement not impugned as a sham one, had been entered into bona fide and had been acted upon. On a reference, this court held in favour of the revenue. On a final appeal, the Supreme Court reversed the decision of this court and held, inter alia, as follows :

" The only ground on which the Income-tax Officer as well as the Appellate Assistant Commissioner disallowed the commission paid was that during the accounting year all the sales were effected directly by the assessee and no sales were effected by the selling agents. But those authorities failed to take note of the fact that apart from the fact that the selling agents were entitled to discount even in respect of the sales directly made by the assessee, the agents were responsible for the payment of the price due from the purchasers immediately after the goods left the principal's works or godown. Such payment had to be made on presentation of necessary papers or documents by the assessee, not later than a fortnight after the date the goods were despatched. In default of payment as aforesaid, the assessee was entitled to charge interest until realisation at the rate of six per cent. per annum on the balance for the time being outstanding. Under clause (9) of the agreement, the agents were also responsible for due fulfilment of all contracts made by them whether for ready or forward sales and also for the consequences of any breach of contract by any customer and for all losses and damages arising therefrom to the assessee provided there was no default on the part of the assessee in manufacturing or giving delivery of any goods required or sold under any contract in compliance with the terms of the agreement. The Income-tax Officer and the Appellate Assistant Commissioner also overlooked the fact that in the previous years, the commission paid by the assessee to the selling agents had been considered as deductible expenditure. From this it follows that from 1950 to 1954 the agents did function in accordance with the terms of the agreement. It was contended before the Appellate Assistant Commissioner that even though the sales were directly effected by the assessee, they were canvassed by the selling agents. Neither the Income-tax Officer nor the Appellate Assistant Commissioner has held against that plea. Under these circumstances, the Tribunal rightly came to the conclusion that the commission paid was an expenditure expended wholly and exclusively for the purpose of the assessee's business, as provided in section 10(2)(xv). "

Mr. Suhas Sen, learned counsel for the revenue, contended on the other hand that the Tribunal has considered all relevant evidence on record and had come to a conclusion on such facts. The decision of the Tribunal not having been challenged as perverse, it was no longer open to the assessee in a reference to agitate the questions referred.

Mr. Sen submitted further that the persons who were supposed to have carried out the actual work chose not to appear before the ITO and no books or records whatsoever were produced. Mangilal Sethia admitted that the sole selling agency was being looked after by his brother and he himself could not say what was being done in order to earn the commission.

About Sampat & Co., Mr. Sen submitted that the proprietor, Sampatlal, did not attend pursuant to the summons. His brother, Bhikamchand, admitted that there was no correspondence between the firm and the Government of West Bengal and that no direct evidence in writing was available to show that any services were rendered. Mr. Sen finally submitted that the Tribunal has drawn the proper inference and has come to the correct conclusion that the agreements were nominal and make-believe and that this conclusion has not been challenged by the assessee.

On a careful consideration of the facts as found, those on record and the conclusions drawn by the authorities below thereon, it appears to us that so far as Mangilal Sethia is concerned the assessee could not establish that he rendered any service to the assessee as a sole selling agent. It is not in evidence that Mangilal deposited the stipulated sum of Rs. 10,000 to the assessee in terms of the agreement or that he secured any order for the assessee for sale of the stipulated products. It was not established that he incurred any expenses on behalf of the assessee on account of establishment or publicity or godown rent or similar items in connection with his agency. Before the ITO, Mangilal stated that the business has been looked after by his brother, Bhikamchand, and that he himself could not state anything as to the services rendered in connection with the agency. The ITO, the AAC and the Tribunal all have come to the conclusion that no services had been shown to have been Tendered by the sole selling agent. It does not appear to us that any relevant evidence in this connection was omitted to be considered by the Tribunal or that irrelevant material was taken into account in coming to the aforesaid findings. In our view the assessee has not been able to establish that the commission paid to the sole selling agent was wholly or exclusively for the purposes of its business.

So far as the commission paid to Sampat & Co., we find that the authorities below focussed their attention only to the particular stipulation of the said party that it would attend and arrange for acceptance of tender of the assessee by the Government of West Bengal. Apart from rendering services in that connection, Sampat & Co., as manufacturing supervisor, agreed to render other services and to undertake risk and responsibility therefor as follows :

(a) They agreed Lo furnish proper specifications of the goods to be manufactured to the factory staff of the assessee.

(b) They undertook the responsibility for all rejections of goods manufactured by the assessee supplied under the said tender.

(c) They under took to supervise the transport and delivery of the goods manufactured and supplied against the tender and to be responsible for all losses resulting from breakage and damage in transit.

(d) They also agreed to be responsible for the acceptance, passing and payment of the bills of the assessee by the Government of West Bengal and undertook liability for all losses and damages caused by the refusal or rejection of such bills.

The categoric evidence of Bhikamchand was that Sampat & Co. had negotiated the tender, that the said firm had personal acquaintance with the officers of the Government, that Sampat & Co. had duly instructed the factory staff of the assessee regarding specification and that they had attended loading and unloading of goods manufactured and supplied. The authorities below seem to have proceeded on the basis that such statements do not constitute any evidence and that the assessee had to establish its case only by documentary evidence. The oral evidence was not considered at all. The Tribunal did not apply its mind or advert to the various risks and responsibilities undertaken as assumed by Sampat & Co. under its agreement with the assessee. Clauses of the agreement, apart from those connected with the acceptance of the said tender, are relevant for the purpose of determining whether Sampat & Co. was lawfully entitled to the remuneration paid to it by the assessee and whether such remuneration was paid solely and exclusively for the purpose of business of the assessee. The Tribunal also failed to appreciate or consider the evidence of Bhikamchand in the above context.

For the reasons given above, we hold that the finding of the Tribunal for the assessment years 1963-64 and 1964-65 that the remuneration paid to Sampat & Co. as manufacturing supervisor was not deductible as business expenditure under s. 37(1) of the I.T. Act, 1961, is vitiated by non-consideration of the aforesaid material facts and evidence on record which were relevant for arriving at such finding.

We, therefore, send the matter back to the Tribunal with a direction to consider the claim of the assessee in the light of the observations made above and determine the question in accordance with law. The Tribunal will give further opportunity to the parties for making submissions on the point and, if necessary, may take fresh evidence.

Accordingly questions Nos. 4 and 5 in the assessment year 1963-64 and questions Nos. 4 and 5 in the assessment year 1964-65 are answered in the negative and in favour of the assessee to the extent as indicated above. The other questions are answered as follows :

Assessment year 1963-64 : Question No. 1 is answered in the affirmative and in favour of the revenue.

Question No. 2 is answered in the negative and in favour of the revenue.

Question No. 3 is answered in the affirmative and in favour of the revenue.

In respect of Mangilal Sethia and Mangilal Bhikamchand, the question No. 5 is answered in the affirmative and in favour of the revenue.

Assessment year 1964-65 : Question No. 1 is answered in the affirmative and in favour of the revenue.

Question No. 2 is answered in the negative and in favour of the revenue.

Question No. 3 is answered in the affirmative and in favour of the revenue.

In respect of Mangilal Sethia and Mangilal Bhikamchand, the question No. 5 is answered in the affirmative and in favour of the revenue.

Assessment year 1965-66: Question No. 1 is answered in the affirmative and in favour of the revenue.

Question No. 2 is answered in the negative and in favour of the revenue.

Question No. 3 is answered in the affirmative and in favour of the revenue.

The reference is disposed of accordingly. There will be no order as to costs.

BIMAL CHANDRA BASAK J.-- I agree.

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