Commissioner of Income-Tax, Bombay City II v. Shakuntala and Two Others Etc.

A. V. Viswanatha Sastri and J. B. Dadachanji, for the respondents.

1961. July, 18. The Judgment of the Court was delivered by S.K. Das J. S. K. DAS, J. These three appeals, with special leave of this Court, have been heard together. They arise out of three Income-tax References made to the High Court of Bombay, namely, Income-tax Reference No. 29 of 1957, Income-tax Reference No. 30 of 1957 and Income-tax Reference No. 37 of 1957. The facts are similar in the three cases and the question of law which the High Court had to answer was the same in each of the cases. The High Court gave its answer in its leading judgment in Income-tax Reference No. 29 crl' 1957, and the other two References were disposed of in accordance with that answer. For the purposes of these appeals, it would be enough if we state the facts of Reference No. 29 and then indicate the question which arose for decision and the answer which the High Court gave to it.

One Nanalal Haridas was the karta of a Hindu undivided family which admittedly was the benefkiary of 1842 shares in a company called the Cotton Export ancl Import Limited (hereinafter referred to a8 the Company). The shares were held in the nameB of different members of the family as given below.

No. of shares Name or names in which 1961 they stand 877 The Tribhuvandas Haridas Oommis.Wner of 815 Nanalal Haridas Incume•taz, 150 Naualal Haridas and Bombay Oitg II Tribhuvandas Haridas v_ Slaaknnfa/,a !Htd-The Company was one in which the public were not two others ect; substantially interested. For the assessment year 194,9.50 the Income-tax Officer concerned applied S.K. Da..J. the provi~ions of s. 23A of the Indian Income-tax Act, 1922 (as it stood previous to the amendment of Hl55) and ordered that the undistributed portion of the assessable income of the Company of the relevant previous year, as computed for income-tax purposes and reduced by the amount of income-tax and super-tax payable by it in respect thereof, shall be deemed to have been distributed as dividend among the shareholders as at the date of the rele-vant General Meeting of the Company. The propor-tionate amount of dividend of the 18!2 shares, after being grossed up, came to Rs. 5!,307 /-. This amount the Income-tax Officer added to the income of the joint family. The assessee-family claimed that the dividend deemed to have been distributed under a. 23A should be assessed in the hands of the share-holders, that is, the persons in whose names the shares stood registered in the books of the Company, and not in the hands of the Hindu un-divided family though admittedly it was the beneficiary of the shares. The Income-tax Officer and the Appellate Assistant Commissioner rejected this contention. The matter then went in appeal to the Income-tax Appellate Tribunal. The Department contended before the Tribunal that having regard to the scheme of s.23 A and the ordinary dictionary meaning of the word "share-holder,'' there was no reason why the joint family should not be held to be the shareholder within the meaning of s ~3 A. The Tribunal by its order daW February 15, 1957, expressed the view that

1961 the interpretation of s. 23A for which the assessee 0ontended would defeat the very purpose 2'he of that section, but held that it was bound by the Commissioner of decision of the Bombay High Court in

I neome-tax, S. G. Gambatt.a Bombry City Ii v. Commiss·ioner of Income-tax, Bombay (').

v. Accordingly, the Tribunal allowed the appeal Sluiku'llla/,a and ancl directed the Income-tax Officer concerned to two others etc. delete the deemed dividend income from the income S.K. DasJ. of the Hindu undivided family. The Com.missioner of Income-tax, Bombay, then moved the Tribunal to refer the following question of law to the High Court of Bomb:iy:

"Whether the dividend income of Rs. 54,307 /- is to be assessed in the h<mds of the assessee, the Hindu undivided family?"

The Tribunal was of' the view that the question did arise out of its order and made a reference to the High Court accordingly.

The High Court by its order dated September 25, 1957, answered the question in favour of the assessee. It held that in respect of an income which was deemed to be distributed under the provisions of s. 23A, the section in terms provided that the proportionate share of the shareholders in ,;uch distribution should be included in their in-come ; and as the Hindu undivided family was not and could not be a registered shareholder of the Company, the amount in question could not be treated as the income of the Hindu undivided family under the provisions of that section. The High Court re-affirmed the view it had expressed in its earlier decision in S. C. Gambatta v. Commis-sioner of Income-tax, Bombay (1).

The High Court having refused leave to appeal to this Court from its decision in question, the Commissioner of Income-tax, Bombay, applied to this Court for special le1we and having obtained such leave has brought these appeals to this Court. 1961

It is necessary now to read the relevant por-The tion of s. 23A as it stood prior to its amendment Commissioner of by the Finance Act, 1955. I ncome-ta:e, Bombay City II "23A: Power to assess individual members v. of certain companies. Shakuntala and two others etc. (I) where the Income-tax Officer is satisfied that in respect of any previous year f!.K. Daa J. the profits and gains distributed as dividends by any company up to the end of the si:x:th month after its accounts for that previous ye;ir are laid before the company in general meeting are less than sixty per cent of the assessable income of the company of that previous year, as reduced by the amount of income-tax and super-tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profits made, the payment of a dividend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income-tax porposes and reduced by the amount of income-tax and super-tax payable by the company in respect thereof shall be deemed to have been distributed as dividend amongst the shareholders as at the date of the general meeting aforesaid, and thereupon the pro-portionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income :

876 SUPREME OOURT REPORTS (1962]

1961 Provided further that this sub-section shall not apply to any company in which the The public are substantially interested or to a sub· Oommi•sioner Jj sidiary company of such a company if the

I ncome·tax, whole of the share capital of such subsidiary Bombay Oity II

v. company is held by the parent company or by Shaku,.taltl amt the nominEes thereof."

lwo olhet"s, etc. The section in effect creates a fictional or notional dividend-income which is not in fact received by S.K. Dall. the shareholder. The notional dividend is deemed to have been distributed as on tlie date on which the accounts of the previous year were laid before the company in a general meeting. It is clear from the section that an order made under it is not in itHelf an ordPr of assessment; it has to be followed bv an assessment on the shareholder either under s. 23 or under s.34-. Under the express terms of the seetion, the artificial or notional income has to be included in the total income of the shareholder for the purpose of assessing his total income. The High Court has r~ferred to its earlier decision in S.C. Carnbatta v. 'l'he Cornrnissioner of Incorne-tax, Bornbay(1). That decision laid down th(lt whern (I shitre stood registered in two or more names, the registered holders treated as an associa-tion of persons must be regarded as the 'share-holder' under s.23A and they must be assessed accordingly. It further laid down that s. 23A did not say anything about equities or beneficial owner-ship; it was a procedural sec:tion and not a charging section. It created a notional income which was wholly artificial and did not in fact exist in the pocket of any shareholder. In a later decision in Shree Shakti Mills Ltd. v. Cornrnissioner of I ncorne-t(J,x, Bornb(J,y City('\ the same High Court held that the expression 'shareholder' mentioned in s. 18 (5) of the Act meant the person who was shown as a shareholder in the register of the company and it was only the shareholder of a company who was entitled to the procedure (1) (1946) 14 J.T.R 748. (2) (1948) 16 I.'f.R. 1!!7 . of processing permissible under ss. 16 (2) and 18(5) 1961 of the Act. This view was accepted by this Court in Howrah Trading Co., Ltd. v. Commissioner of The Income-tax, Central Calcutta (1) where it said that Commissioner of no valid reason existed as to why the expression 1 ncome-ta:x, Bombay.City 11 'shareholder' as used in s. 18(5) should mean a v. person other than the one denoted by the same Shakuntala and expression in the Indian Companies Act, 1913. two others, etc. A reference was made to the decision-of the Bombay High Court in Skree Shakti Jl!Ji'.ll8 Ltd. v. S.K. Daa J. Commissioner of Income-tax, Bombay City(') and other decisions bearing on the subject. Similarly, we see no reason why the expression 'shareholder'

in s. ~3A should not have the same meaning, namely, a shareholder registered in the books of the company. It would be anomalous if the expression 'shareholder' has one meaning in s. 18(5) and a different meaning in s. 23A of the Act ; for that would mean that a Hindu undivided family treated as a shareholder for the purpose of s. 23A would not be entitled to the benefit of s. 18(5) of the Act.

The learned counsel for the appellant has urged two points in support of his contention that the expression 'shareholder' in s. 23A means the person who owns the share, irrespective of the circumstance whether that person is registered in the books of the company as a shareholder or not.

His first point is that the very object of the section is to prevent avoidance of super-tax by the share-holders of a company, and if the lwneficial owner of the shares is a Hindu undivided family, that family will not come within the purview of s. 23A, because a Hindu undivided family as such cannot be a shareholder in a company. The argument is that the narrow interpretation put on s.23 A will defeat the very purpose of the section. The second point urged is that the principle that a

1961 legal fiction must be carried to its logical conclu-

sion cannot be overlooked in construing s. 23A. '!'~e The legal fi. fiction · enjoined by the section is that ommiss1cmer of the pro ts must be "det,med to have IJeen distri-

Income-tax Bombay City 'II buted as dividend a1!10ngst the shareholders as at

v. the date of the gennml meeting". This legal fiction Shakunta/a and must i>e earried to its logical conclusion by holding two others, etc. that the dividend had been actually distributed

and r<'ceived by the Hindu undivided family. It S. K. Daa J. is pomted out thH.t if the saiµe dividend were

actually distributnd by the company, it would cNtainly bP inc"me in the hands of the Hindu undivided family whieh would he liable to pay all taxes on itH income, whether actual or arti-ficial.

We do not thir~k that either of the two points urged by the appellant is re111ly decisive of the question. The queHtion is really one of interpre-tation of s. 23A, and we must interpret s. 23A with reference to its own terms. The section in express terms says that "the i:iropurtionate share of each shareholder shall be included in the total income of the 8hareholder for the purpose of assessing his total income". The sPction does not t ilk of the bene-ficial owner of the share. It talks of the share-holder only. Section 18(5) of the Act deals with f!rossing up of dividend and two expressions occur therein : "owner of the security" and the "share-holder". So far as the expression "owner of the security" is concerned it may perhaps include a. beneficial owner ; but it has been decided by this Court that the expression "shareholder" in s.18 (5) means the shareholder registered in the books of the company. As we have earlier said, no good reason exists as to why the expression "shareholder" in s. 23A shall not have the same meaning. Sub-sections (3) and (4) of s. 23A also make the position clear : they talk of members of the company and a Hindu undivided family as such is not a member of the company.

The position of a Hindu undivid<:'d family 1961 vis-a-vis a partnership was considered by this Court in Chara.ndas Ha.ridas v. Commissioner of lncome-tru The Bombay (1) and Cmnmissioner of lnwme-tax, Comniissionet of 80111-I v. N1indlul ('). It i8 not diHJ>llll'<l nc(nne.~ta.r, bay Claudalal Bombay City II that the Hindu undivided family as sueh was not v. a shareholder of the company in the present case. Shakuntala and Therefore, so far as the notional income i:; 1·011-tuY> other8, fie. cerned, we must go by the terms of s.23A and if there is any lacuna in the "·ordi11g of the scdion, 8.K. Das J. we cannot cure it in the guise of intl'rprctatiuu.

The question here is not one of r leciding the matter from the point of view of J!artuershiii law or Hindu law, as was tht> question in Commi88ioner of Income-tax, Bornbaq v. Nrmdlal Gandalal (') which led to a difference of opinion. The question here is one of interpretation only and that interpretation must be based on the terms of the section. The fiution enacted by the Legis-lature must be restricted by the plain terms of the statute. Nor do Wf' see how it can be said that the interpretation put on s.23A that it is con-fined to a shareholder regiAtered in the book~ of the company defeats the very purpose of the se('tion.

The section will still apply to 'hareholdt>r,; of the company and to their income will be added the notional income determined under s. 23A. We are unable to accept the argument that the prin-ciple that a legal fiction must be cal'ried to its logical conclusion requires us to traye] beyond the terms of the section or give the expression "share-holder" a meaning "hich it docs not obviously bear.

For these reasons we are of the view that the High Court conectly an&wered the ques-tion which was referred to it. In view of that answer the High Court rightly held that th"

second question referred to it did not. fall for

880 8UPREME COURT REPORTS [I962j

1961 consideration. The result, therefore, is that all

these three appeab fail and must be dismissed The with costs ; one heari1!¥ foe.

ommission~r of I nC<Jme--tax, Bombay City I1 Appeal8 dismissed.

v.

Shalr:untala and

two others, etc.

S •. K. Das J. SETH DJKHRAJ JAI~URIA

v.

1901

UNION OF INDIA

July, 24. L. 1{. M.

(J. KAPUR, SUBBA RAO, HIDAYA'.l'ULLAH,

J. ·c. SnAH ;ind ~AGHUBAR DAYAL, ,JJ.) Contract-Divisional. Supprintendent ' of Railway placing orders-Cont,ract not 1 e:tpressed to be in name of Goverrior-General and not executed ' on behalf of Governor-General-Whethei· binding on G6uern1nent- (/overnmi:nt of India Act, 1935 (26 Geo. IJ Ch. 2) s. f715 (3). '

In the year 1913 the Divisional Superintendent, East lti<liciu Raihvay piacecj certain purcha~e oi<lers with the appel-lant for the supply "of foodgrains for the employees of the East ~ndian Railway. , The orders \\:'ere not ('Xpressed to be made .in the name Of the Governor-General and were not executed on ~ehal( of the !J.overnor-General as required by s. 175 (3) of the Government oflnclia Act, 1935. They were signed Dy the Divisional Superintendent eithef..inwhis oWn hand or in the ·haiid of h'is PCrsonal Assistant. Some deliveries of foodgrains \.Vere made under theSe orders aild were aCcepted and paid for by the Railway Administration. But lhe Railway i\dn1inistration declined to accept further deliveries of food-grains. The-appellant sold the balance of foodgrains under the purchase orders and fi.JetJ a suit to recover the difference bet- \Vcen thC price realised Ly ~-ale and the contract price. The respondent resisted the suit infe.r alia on the ground t.hat the contracts were not Binding on it.

Held, that the contracts were not binding on the res-pondent and it was not liable for damages for breach of the contracts. Under s.17.'(3) of-the Government of India Act, J 935, as it stood at the relevant time, the contracts had: (a) to be expressed to be made by the Governor-General, (b) to be executer! 0n hehalf of the Governor-General and (c) to be ·executed by officers duly appointed in that behalf and in such manner as the Governor-General directed or authorised. The

1961 CIVIL APPELLATE JURISDICTION: Civil Appeals NoH. 125, 231 and 447 of 1960.

The Oom1ni3siotier AppPals from the judgment and order dated of Income-tax. September 25, 1957, of the Bombay High Court of Bombay City II Ineome-tax References Nos. 30, 29 & 37/57, respec-

v.

Shakunm/a and tively.

two others etc. . K. N. Rajagopal Sastri and D. Gupta, for the appellant.