The Nandlal Bhandari Mills Ltd., Indore v. The State of Madhya Bharat

Agem-Gommi&tio" paid 01.t of nel pra/iU-Jj dedvctib le from aM.-bie i1Ul0111t-TM J..dore bulwtrial l'ax Rukd-Notiji()<JtioM.

By a Cabinet Resolution of the Holltar Sta~ certain Rules known as The Indore Industrial Tax R.ulcs wen: framed for the purpose _of_ levying_ industrial. tax. After the decisio~ of the Privy Council m Pondickerru Railway Co., Ltd. v. Commi88ioner of l>1COme-tax, (1931) L. R. 58 I. A. 239, disallowing deduction of Commission paid out of profits to agents from the aaoesaabk profits, the Government of Holkar State of which the Mahar.aj& was the Supreme Ruler, issued certain Notifications ordering that the Agents' Commission on profits should not be allowed to be deducted from the assessable profits. The appellants who under an agrcemen t paid commission to their agents out of the company's net profits contended, illltt alia, that the Notifications in question did not have the force of law and was not enforceable against the appellants.

Hild, that every general order emanating from the sovereign ruler having its roots in a resolution of the cabinet muat be regarded as a law binding on the subject and the Notification• di.allowing commission paid to agents to be deducted from the assessable profits were therefore binding on the appellants, because that was the normal mode by which laws were ma.de in the Holkar State.

Rajkum»r Milt. Ltd. v. Madhya Bharat State, A. I. R. 1953 Madhya Bharat 135, approved,

Ameer-un-nissa Begum v. Mahboob Begum, A. I. R. 1955 S.C. 352, followed.

The Unio11 Cold Storage Co., Ltd. v. A11ders0fl, (1931) 16 T. C. 293 and l'he "llldian Radio and Gabl. Co-uai<.atiotu Co., Ltd. v. Commis•ioner of Income-tax, (1937) I. T. R. 270, discussed.

Madhd<>orao v. State cf Madhya Bharat, A.I.R. 1961 S. C. 298, rcferrc to.

8fi0 SUPRE.l\IE COURT R.EPORTS [l!J62) 1961 CIVIL APPELL.;1.'.l'E' JuRISDIC1'ION: Civil Appeals

Nos. 34'1-346 of 1960. · The Na?tdlat lihandari Mills Appeals.by SJ!f>Cial leave from tho judgment

ltd., Indore and ordn datf'd Scpt<'.mber 8, 1958, of the Madhya

v. Prndcsb High Court (Indore Bench), Indore, in Civil The State of Scc011clAppeals Nos. ll0-112 of 1952 .

.lf adhya Bharat S. T. De,sai and J. B. Dadacharr;ji, for the appellant.

B. Sen, R. J. l]lJave and ·I. N. Shroff, for the "respondent. · 1961. July 17. T,he Judgment of the Court was delivered by H ;duyatullczh J. HIDAYA'IUL-LAR, J.-'-These three consolidated

appeals by spedal · leave are agairn~t a common judgm~nt and order of the High.Court of Madhya Pradesh, dated Septrmbe;r 8,.1958, in three second appeals !!led und<•r R. 13 of the Indore Industrial Tax Rules, 1927 of the .former Holkar St.ate, which wer<' i11 forcQ before the St.ate l;ccame part of Madhya Bharat St.ate. They c01w0rn thu·c a_ssc-ssmr11ts r<' lating to tho asscssmeni yl'a rB, l !)4 J, JU,12 and l-!}4:{ respectively. These second app1·nls \\·cro originally .Jjlcd in the MacH1ya Bharat High Court as early as 19"52 ;- but the records of the appeals were dl'stroyed by fire· and had to be r,econstructed. By the time the appeals were ready, Madhya Bharat had me:·ged in the new state of l\fo.~a Pradesh, and t.he appeals were accordingTy heard by a Divisionnl Bench of that High Court.

The appellant is a Textile Mill and a l"' blic Joint Stock Company call!•d the Nan dial Bhandari Mills, Lt<l. The appellant had appointc•l a firm, Messrn Na11dla I :11handa~i and Sollti as agents, Re(',retarit\S and treasurers of the Mills, am.I under cl. (6) of \Jic agre<:mont of agem·y, it agreed to pay tu t,hr ag1·11ts :i.n office allo\1·ance, cummisF-ion on the, Compm1y's.11et.'prntit~ ftTitl eommission tin the sale p1·nct>.;ds of ~!l Jes of yarn, <: !o:.b, eto; 'I'he remuneration of the agents for the three account-1961 ing years was as follows : The Nand/al Remuneration As per Accounting ,Years Bhandari Mills Ltd., Indore agree- ------------ v.

ment. HJH 19 ±:l 19-±:l The State of Rs. Rs. Rs. Madhya Bharat Clause ti 1500 18,000 18,00(l 18,000 HidayatullahJ. (a) Fixed P.M. for the for the monthly allow-year. year.

ance as office allowance.

(b) Commission @ 16% 2,68,:335 6, 15,946 10,52,939 on the Com-net o.n pany's Net profit~ Profits.

(c) Commission @ 1-9-0 1,10,156 l,G4,751 2,71,672 on the sale Per Cent, proceeds of on •ales sales of yam, cloth etc.

- --- In computing the t<ix, thu l\fills claimed to deduct under R. 3(2}(ix) of the Rules the abovP amounts paid as remuneration. The Rule reads:

"(ix) any expenditure (not being in the nature of capital) incurred solely for ·the purposes of earning such pr0fits or gains."

The Assessing Officer accepted the appdlant's cl<iim for deduction but only as to a part. We are not required in these appeals to consider the correctness of the quantum of the deduction in view of what transpired later. Tlw As~essiug Officer also disallowed certain other c !aims made by the appellant, which agaiu need not be men-tioned. The appellant then appealed to the Appellate Authority, and on December 31, 1951, the Appellate Authority, while aeeepting some of $62 SUPREM~ CdtJRT REPORTS c1962r 1961 the appellant's other contentions uphold the order refusing to deduct the a_gent'.s commissiorr on pro- '!.'he Nand(.al fits under 'R, ·3(2)(ix). Piree Eiecond appeals Bhandari Mi /ls

Ltd., Indore were preferred in the Madhya Bharat High Court

v. under R . .13 of· the amended Rules. They were Phe f;W:te of .dismissed by the High Court of l\'fadhya Pr-adesh, Madhya Bharat and hence the present appeals.

idayatullah .I. Tl1e Indore Industrial Tax Rules were first promulgated in 1926 by a Cabinet Resolution (No. 373 dated March 22, 1926): In 1927, by, Cabinet Resolution No. 1991 dated November 23 1927, the R.ules were modified, and the new Rules were made applicable retrospectively from ~a;y I, 1926. These Rules were' framed for the levy of the tax and for ascertainment and determination of the income of cotton mills. - The tax called the "Industrial Tax" was leviable under R. 3, which imposed the charge. It ·says that the Industrial Tax shall be payable.by an assessee in respect of the profits or gains .of any Cotton Mill industry carried on by him in the Holkar State. Sub-r. (2) of R. 3 provides that such profits or gains are to be computed aft.er making allowances, inter alia, for any expenditure iii.curred solely fpr the purpose of earning such profits or i;ains, R .. 6, which is a part of the Rule imposing· a charge, lays'd6wn the rates which are : (a) on all incomes up to Rs. 50,000, at l i annas per rupee, and (b) above, at 2-1/2 annas per rupee. The short question thus was whetll.er in computing the profits and gains of the appellant, the remuneration paid to the agents was deductible upder R. 3 (2) (ix).

It is necessary at this stage' to sec the legis-lative machinilry existing in the Holkar s'tatc ill. 1927 and onwards., On Feb!'uary ';/-7, HJ26, His Highness Maharaja Tukoji'Rao III'abdicate.d, 31nd. his son, .R.H. Maharaja Yesh'want Rao Holkar; became the Ruler, whose ~rtsta!lat'ion ceremony was performed ·on March II, 1926. A Regency Council was-· appointed undllr the orders of 'tlie Government of India for the administration of the 1981 State during the minority of the Maharaja. This The Nandlal Regency Council, which was called the Cabinet, Bhandari Milla was entrusted with the administration of the State Ltd., Indore according to existing rules and practice, under the v supervision and with the advice of the Agent to Tho State of the Governor-General in Central India. The Madhya Bharat Prime Minister of the State was the Chairman. H idayatullah J. H. H. Maharaja Yeshwant Rao Holkar attained majority on September 6, 1929 and resumed sove-reign powers on May 9, 1930. It was during the minority of the Ruler that the Cabinet had pro-mulgated the amended Rules of 192i. In 1931, the decision of the Privy Council in the well-known case of Pondicherry Railway Co., Ltd. v. Oommis-8Wner of Income-tax (')was rendered. In that case, a Railway Company had agreed to make over to the French Colonial Government half of the Com-pany's net profits in consideration of a 99-year concession. This was sought to be deducted by the Company from its assessable profits as an ex-penditure incurred solely for the purpose of earning such profits. The Privy Council disallowed the deduction. Lord Macmillan observed as follows :

"A payment out of profits and condi· tional on profits being earned cannot accu-rately be described as a payment made to earn profits. It assumes that profits have first come into ,existence. But profits on their coming into existence attract tax at that point and the revenue is not concerm•d with the subsequent application of the profits."

It seems that, as a result of this decision, a notification was issued in August, 1931, and another on February 2/3, 1932 by the Commerce and Industry Department of the Holkar State.

The latter notification reads as follows :

(l) '1931} J...ll. 58 I.,4. 239,

19111 "Commerce and Industry Department Notification.

Tiit Naadl<ll BAaadari Mi/Ja Notification No. 1 dated the 2nd/3rd

Ud., {ndore Feb. 1932. In continuation of this office

v. Notification No. 4733 dated the 6th Decem- '1'11€ St<Jie qj ber, Hl27 (Vide lsRue No. II dated the l/ladAJP BJiarat 12th DecPmber, l\i27, of the Holkar Sirkar Hida11fJl""'1A J. Gazette) embodying modified rules for the levy of the Industrial Tax the Cabinet in their Resolution No. 1072 dated the 25th August, 1931, have ordered that the Agents' Commission on 'Profits' should not be aJ!ow-ed to be deductC'd from the assessable profits."

It is to be noticed that this notification refers to the earlier notification No. 4733 of December 6, 1927, undn which were published the amended Industrial Tax Rules, 1927, and to the notifi-c;>tion of August 1931. The latter has not been produced before us.

This notification led to representations by the persons affected by it. The Maharaja of Holkar thereupon referred the matter for the opinion of the Full Bench of the High Court of the State. It appears that the opinion of the High Court was in favour of disallowing such dclductions. On July 14, 1933, another notification (No. 13) was issued which reads as follows :

"In continuation of this office Notifi-cation No. 1 dated 3rd February, 1932, it is hereby published for the information of the mills and factories concerned that on submis-sion of the Prime Minister's (Legal Department) report No. 25 dat.ed 11th May, 1933, His Highness the Maharaja is pleased to order (vide Huzur Shri Shankar Order No.173 dated 29th June,1933) that the opinion of the Full Bench of the High Court being that the Managing Agent's C'.ommiasion an Profit, ia

not an item of expenditure incurred solely 1961 for the purpose of earning the said profit within the meaning of Rule 3(2)(ix) of the said The Nandlal Industrial Tax Rules and this being also the Bhanclari M ilia view of the Cabinet as expressed in their reso-Ltd., Indon v. lution No. 1072 dated 28th August, 1931, the The State of aforesaid Cabinet Resolution be given effect Madhya Bharat to and the industrial tax due on the amount of the managing agent's commission on profits Hidayatullah J. be recovered with elfect from the date of the said Cabinet Resolution."

This notification, it is contended before this Court had not the force of law and was not enforceable against the appellants, who claim that they are entitled to show that the remuneration paid to the agents was deductible from the profits of t,he Mills before computing the Industrial Tax. In this connection, the appellants wish to use the later decisions of the House of Lords in The Union Cold St-Orage Co., Ltd. v. Adamson (1) and of the Privy Council in The Indian Rridio and Cable Communica-tions Co., Ltd. v. Commissioner of Inwme-tax ('), in which the decision in the Pondicherry Railway Company case (') was explained. In the case before the Privy Council, Lord Mangham observed:

"It is not universally true to say that a payment the making of whic!i is conditional on profits being earned cannot properly be described as an El'Kpenditure incurred for the purpose of earning such profits. The typical exception is that of a payment to a director or a manager of a commission on the profits of a comrany .... If a company having made an apparent net profit of £ 10,000 has then to pay£ 1,000 to directors or managers as the contractual recompense for their service during the year, it is plain that the real net profit is only £ 9,000."

}!l (1931) 16 T. 0~ 293. (2) (1937) I. T. R. 270.

\Y) (1931) L.ll. 58 ~1) A. 239.

1961 Lord Macmillan in the former case observed that the Pondic.herry Railway Company c.ase (') must be TheNandlal read in the context of the facts of that case, and B/ia,.dari Ni/ls the obligation was first to find out the net profits

Ltd., lrtrlore

v. of the company and then to divide them. These T.U State of two gets of cases proceed upon different principles. MadAya Bliarat If the agreement is to share the profits the expendi-ture cannot properly be treated as one incurred idaratvllak J. solely for the purpcrne of earning such profits; but if a slice of the profits is to be paid to persons as remmrnration to help in thP Parning of the profits, the deduction can be claimed.

All this would of course be pertinent to consider, if th0re was no legislative enactment on the subject. If the matter was not one concluded by law, then there would bn room for judicial interpretation of the Ruk. The rival claims in these appeals are thus confined to the legislative force of the notifications issued in 1931, 1932 and 1933 respectively. The appellant's contention is that the notifications were not an act of legislation but an interpretation by the Sovereign .. Mr. Desai concedes that if they be regarded as legislation, then the later decisions of the Privy Council and some of this Court cannot be called in aid, because where the law itself speaks with clarity, judicial interpretation is out of place. He contends, how• ever that the two notifications were not framed as rules and were not expressly stated to be amend-ments of the rules then existing. He points out that after the first notification which was nothing more than an administrative direction to the assessing officers to include in the profits the remuneration of the agents, the opinion of the High Court was obtained, and the second noti-fication merely pointed out that the earlier notificJ-tion wa.11 to be given effect to, and did no more than add a second administrative direction. On the other side, it is contended that the Cabinet could make laws as often as it pleased and that the notifications must be read either as independent 1961 rules or as a legislative explanation of R. 3 (2) (ix).

In so far as the legislative supremacy of the Cabi-The Nand/al net was concerned, no question was raised before Bhandari Mill8 us. When the Indore Industrial Tax Rules, 1926 Ltd.,lndore wern framed, they came into existence by virtue "· The State of of a Cabinet Resolution of that year. When they Madhya Bharat were modified, they were superseded by yet another Cabinet Resolution of the year 1927, which promul· Hidayatulwh J. gated the new Rules with retrospective effect from May 1926. The source of the Rules was thus a Resolution of the Cabinet on both the occasions, and it is not denied that the Rules thus framed had legislative sanction and were unquestionable. When the Cabinet promulgated its notifications in 1931, 1932 and 1933, it follow-ed the same procedure, and it stated that the notification of 1932 was "in continuation of this office Notification No. 4733 dated December 6, 1927." This has reference to that notification under which the Indore Industrial Tax Rules, 1927 were orginally published. From this, it follows that new Rules were framed by a resolution of the Cabinet and were promulgated by a notification in the Gazette as part of the Rules. The mode followed in 1926 and 1927 was repeated in 1932 and 1933 and also presumably in 1931, though the notification of that year has not been printed in the record of this case.

This view was taken by the Full Bench of theiMadhya Bharat High Court in Raj Kumar M~Us Ltd. v. Madhya Bharat State (1). The quest10n which is involved in these appeals also arose in that case. It was observed by the Full Bench :

"This Notification makes it abundantly clear that His Highness the Maharaja ordered that the industrial tax due on the amount of the managing agent's commission on profit8 be recovered. This being an ordur of the (I) A.I.R. 1953 Madhy;i. Bharat 135.

868 SUPREME CDU.RT REPORTS [1962

1961 ruler, who enjoyed sovereign powers, that order is not open to challenge. This fa a TheNan,dlal mandate emanating f1 om a sovereign and as Bhan,dari Mills suoh hae the force of law. This Court has,

Ltd., lndore therefore, no power to go behind the order

v:

The Stat• of and enquire as to whether the managing Madhya Bharat iigent.'s commission on profits is an item of expenditurP solely incurred for the purpose H idttyatullah j. of earning profits or not. In this view of the matter the point at issue is concluded by Hu:i:nr Shri Shanker Order No. 173 dated 29th June, 1933."

This view was affirmed by the High Court of Madhya Pradesh in the judgment under appeal. In our judgment, the two notifications cannot be described as "judicial interpretation". If any. thing, they must be interpreted as legislative ex-position of R. 3(2)(ix) and in the nature of an explanation. This Court in Ameer-un-nis8a Begum v. Jfahboob Begum('), in dealing with the 'Firman~· of His Exalted Highness the Nizam of Hyderabad, observed as follows :

"It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judidary and the supreme head of the executive, and there were no constitu-tional limitations upon his authority to act in any of these capacities. The •Firmans' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law;-nay, they would override all other laws which were in conflict with them. So long as a particular 'Firman' held the field, that alone would govern or regulate

(I) A.I.R. 1955 S.C. 352.

the rights of the parties concerned, though it 1961 could be annulled or modified by a later 'Firman' at any time that the Nizam willed." Tht N andlal Bl!a'ttthlti JlillB The same can be said of the Ruler of the Holkar Ltd., IttdMt State. When to the order of the Ruler was added v. T/,e Slate of the usual mode of making and promulgating rules, M a'dligo Bl!tsrat the position which emerges is really unassailabl~.