S. R. Y. Sivaram Prasad Bahadur v. The Commissioner of Income Tax Hyderabad

Hegde, J. The common question of law which arises for decision in these appeals by certificate, is whether the interim payment received by a former holder of an estate under s. 50(2) of the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948- (Madras Act 26 of 1948) (to be hereinafter referred to as 'the Act') whose Estate vested in the Govermnent under s. 3 of the Act was of capi1tal nature and not liable to tax.

The material facts bearing on the point in issue are id·~ntical in all these appeals. Hence it .would be sufficient if we set out the facts of Civil Appeals Nos. 1309 to 1312 of 1968 which were filed by the same assessee. The assessee in those appeals is a Hindu Undivided Family and ithat family was the holder of the Estate of Devarkota and Challappal!i. This Estate vested in the Government under the Act. During the assessment years 1953-54, 1954-55, 1956-57 and 1958-59, the assessee received some interim payments. The Income-tax Officer sought to in-clude those payments in the assessmeni of the assessee in those years. The assessee contended thait those receipts were not Revenue receipts and hence not taxable. He based his. plea firstly on the ground that those receipts represented agricultural income or alternatively they were «01pital receipts and lastly on the ground that the income having been apportioned among the principal landholder and the other persons referred to in sub-s. (2) of s. 50 of the Act, the entire amount did not fall to be assessed in his hands. All these contentions were rejected by the Income-tax Officer. Before the Appdlate Assistant Com-missioner, the assessee repeated those· contentions; but the Appel-late Assistant Commissioner rejected them and upheld the order of the Income-tax Officer. On a further appeal to the Income-tax Appellate Tribunal, the Tribunal held that as those payments were made-to the assessee as compensation for destroying his income producing assets they should be considered ·'!is capital re-ceipts and hence not liable to be taxed. Thereafter, at the instance of the Commissioner of income-tax, the Tribunal referred the question-

"Where on the facts and in the circumstances of the case, the interim compensation of Rs. 81,843; Rs. 40,422, Rs. 1,21,146 and Rs. 80,391 received by the assessee under section 50 of the Madras Estates {Abo-lition and Conversion into Ryotwari) Act, 1948 was of a capital nature and not liable to tax."

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under s. 66 (1) of the Act for the opinion of the High Court. The High Court answered that question in favour of the Depart-ment. Following that decision, the High Court dismissed the Writ Petitions filed by Shri V. V. V. R. K. Yachendra Kumar Raja raising the very qu·~tion that was the subject matter of the References. The other appeals in this batch of appeals arise from the decision in those Writ Petitions.

(Hegde, !.) For deciding the question whether the receipts with which we are concerned in these appeals are capital receipts, it is necessary to make a survey of the relevant provisions of the Act. But before doing so, it is necessary to mention that the former holders of Estates that had vested in the Government under th~ Act were entitled to receive four different kinds of payments. They are: ( 1) advance compensation under s. 54-A; 12) in:erim payments under s. 50(2); (3) total compensation under s. 41; and ( 4) additional compensation und·~r s. 54-B. Now let us turn to the relevant provisions of the Act.

Section 3 of the Act provides in cl. (b) thereof that the en-tire Estate, including all interests detail·~d therein, shall stand transferred to the Government and vest in them free from all encumbrances wih effect on and from the notified date. Clause ( c) of that section put an end to all rights and interests created in or over the Estate before the notified date by the principal or any other land-holder. Clause ( e) of •that section is important. It reads :

"That principal or any other landholder and any other person whose rights stand transferred under clause (b) or cease and determine under clause ( c), shall be entitled only to compensation from the Go-vernment as provided in 1this Act."

Section 21 provides for the survey and settlement of Estates for effecting R yotwari settlement. The manner of effecting the Ryotwari Settlement of the Estate vested in 'the Government is prescribed in sub-sections 2, 3, and 4 of s. 22. &ctions 24 to 27 prescribe the manner of determining •the compensation pay-able for the Estates taken over. The scale of compensation is laid down in s. 37. Section 39 provides for determination of basic annual sum and of total compensation. Section 4 lays down that the Government sha!l deposit in the office of the Tribunal, the amount of compensation in respect of each Estate as finally determined under s. 39, in such form and manner and at such time or times and in one or more instalments as may be prescribed by the rules made under s. 40. Then, we come to s. 50. Two clauses of that seCJtion relevant for our present purpose are: sub-section (2) and (8) of that section. Sub-section (2) says:

"After the notified date and until the compensation is finally determined and deposited in pursuance of this Act, interim payments shall be made by the Go-vernment every fasli year prior 1to the fasli year in

which the said deposit is made, to the principal land-holder and to the other persons referred to in section 44, sub-section (1), as follows ...... "

Sub-section ( 8) of s. 50 reads :

"No interim payment made under this section shall be deemed to constitute any part of. the compensation which the Government are. liable to deposit under sec-tion 41, sub-section ( 1), or to any extent to be in lieu of such compensation."

Section 54-A provides for advance payment of compensation ·and its apportionment etc. That section provides that "in the case of every estate not governed by section 38, the Government shall e~timate roughly the amount of the compensation payable in respect of the estate, and deposit, one-half of that amount within six months from the notified da:te in the office of the Tribunal. as advance payment on account of compensation."

Section 54-B, provides for the payment of additional com-pensation and its apportionment. Evidently the Government had estimated the total compensation payable to the holders of all Estates tha'l vested in it at 12t crores of rupees. S.~ction 54-B provides that if the total compensation paid to ·the holders falls short of tha!t sum, the balance will be distributed between the holders of the Estates abolished, in proportion to the amount of compensation as finally determined in respect of each of them µnder s. 39. Tue only other provision to which reference may be made is sub-section (7) of s. 50 which in one of its clauses provides for-payment of interest under certain circumstances.

From the provisions of the Act, it is clear that 'the legisla-ture must have been satisfied that the enquiries relating to the determination of the compensation of the Estll'tes abolished was bound to take considerable time. In the very nature of things, those enquiries were bound to be prolonged. We have earlier seen that the Estates abolished vested in the Government as soon as the notification contemplated in section 3 was issued. But the compensation payable to the Estate holders became due only when the same was finally detern1ined under section 39. In other words, the liability of the Government to pay the compensation finally determined arose only after the same was deitermined under s. 39 though the Act provided for payment of half the amount of, compensation on the basis of a rough estimate within six months from the date of vesting. It may also be noted that there is no provision in the Act providing for payment of inte-rest on the compensation payable as from the date of vesting. (Hegde, !.) Now we shall proceed to consider the ,question. whether the interim payments made under the Act under s. 50(2) are reve-nue receipts or capital receipts: It was urged on behalf of the assessee that those receipts were capital receipts. In support of that contention, reliance. was placed on claluse (e }' of section 3 as well as on the circumstance that though the Estate abolished vested in the Government OI) the notified dale, compensation beca;ne payable to them only after the same was determined under s. 39. On "):he other ·hand, it was urged on behalf of •the Department that {}je legislature deliberately made a distinction between the compensation and interim paym'ent; the compensa-tion for abolishe~I Estate were firstly paid as advance compensa-tion, .ncxlly t'!S-tot~\ compensation and lastly as additional com-pensation; die interiln payments had nothing to do with com-pen&ation; they were recu1ring payments and they were made !n lieu of the interest payable on the total compensation.

While it is that the tt!rminology by the legislature ' tm~ us~d in respect of a payment is no! conclusive of t~:e .::tr!!.".-.i:haract~r of that payment, it would be proper to proceed on the basis ~hat the legislature knew what it was saying. The word 'compensa-tion' is· a well known expression in law. When the legislature says that all payments made under the Act are in respect of the· compensation payable to ,the former holders, unless there are cle~r and convincing circumstances to show that one or more items of payment do not form part of the compensation payable, we must hold that 1hose payments are .what they are said to be by the'statute. We must give the word "compensation" its normal and .natural meaning. As seen earlier, in clause (e) of section 3 of the .Act the legislature d·~finitely says that the holder or holders of the fata•te fa!ling within clauses (b) and (c) of section 3 "shall. be entitled only to compensation from the Government as provided in tnis Act". From this it follows that al! payments made to them under the Act aP~ compensation payable, to them· for taking over •their Estates., StatJ!tes which take away others property, by and large. provide for payment of compensation as from the date of taking. In the_ generality of those statutes, ~f immediate payment is not made at' the time of taking, provision 1s made for payment of/interest on the compensation payable as from th'.! date of taking. In the Act, there is no provision for payment of compensa\.ien at the time of the vesting of the Estates in the Governnient. Nor is there any provision fclr pay-ment of interest on the compensation payable, as from the dacte· of taking. The compensation determined has to be deposited only after the enquiry under s. 39 was over. We are rtold at the bar that -the final determination of the compensation under s. 39 was made years after the Estacte vested in the Government. is though some advance compensation was paid. Hence there force in the contention advanced on behalf of the assessee that the in•terim payments made were given as compensation for dep-riving the assessees of the income that they would have got from their agricultural lands, an income which would not have been assessable to tax under the Aot if it had _been received as agricul-tural income. The quantum of interim paym~nts payable to the former holders of those Estates was determined by •taking into consideration the income that the former owners would have received had they continued to be the owners of those Estates. This prima facie shows that the Govermnent was compensating the former holders for taking away their income producing assets. The interim payments do not appear to have any relationship with the compensation ultimately payable. On the other hand, it takes note of the loss of income incurr·~d by the former owners due to the abolition of the Estates. The contention that it was in lieu of interest on the compensation payable overlooks the fact that the liability of the Government to pay the compensation .excepting to the extent provided in section 54-A, arose only after the compensation payable was finally determined under s. 39. The interim payments were not fixed on the basis of the esti-mated compensation. They were fixed on the basis of the loss of income to the former owners. Under these circumstances, it is nClt possible to accept the contentio_n that interim payments were paid in lieu of interest or even that they represented compensation for loss of interest. If the legislatut>~ intended thart the interim payments were to be mad.e in lieu of the payment of interest on the compenswtion payable, nothing would have been easier than to say so in the Act. The term 'interest' is a familiar term in law. In this very Act, the fogislature had prescribed payment of interest under certain circumstances. As observed by this Court in Dr. Sham Lal v. Commissioner of Income-tax, Pun-jab (1), the interest is a payment to be made by the d'ebtor to the creditor when money was due to the creditor but was not paid or in other :words was withheld from the creditor by the debtor after the time when rthe payment should have been made. Proceeding further, this Court observed in that case that interest whether it was statutory or contractual represented the profit the creditor would have made if he had the use of the money to which he was entitled to. In the cases before us, the assessees were not entitled to any compensation till the same was deter-mi~ed under s. 39. Therefore, no amount, to which they were entitled to, were, withheld from them. Hence on that account they w~re not entitled to any compensation in lieu of interes't.

It is true that while the Act calls the payments made under s. 54-A, 54-B and 41 as compensation, the payments made under

I 5J. LT.R. p. 151 section 50 ( 2) is called interim payments. This circumstance by itself will not be of much significance because, as seen earlier, s. 3 proceeds on the basis that all payments made under the Act are in the nature of compensation. Possibly the legislature want· ed to make a distinction between compensation paid for the loss of income and that for the loss of assets. Much reliance was placed on behalf of the Department on sub-section ( 8) of s. 50 which as seen earlier, says :

"No interim payment made under this section shall be deemed to constitute any part of the compen-sation which the Government are liable to deposit under section 41, sub-section ( 1), or to any extent to be in lieu of such compensation."

In our opinion, this sub-section, instead of assisting the De· partment, support the case of the assessws. All that that pro-vision says is that 1the fo.terim payments made under s. 50(2) are not to be considered as compensation which the Government is required to deposit under s. 41 (1) or to any extent to be in lieu of such compensation. That section does not say that the interim payments are not compensation. It only says that it is no part of the compensation required to be deposited under s. 41 or in lieu of such compensation. That does not mean that it can-not be compensation for ·the recurring loss caused to the owner because of the taking away of an income producing asset with· out payment of compensation. It is not the contention of the assessees that the interim payments made are part of the total com-pensation payable for the acquisition of the Estates. According to them, it is a compensation for the destruction or taking away of an income producing ·asset of theirs till the assets taken from them are compensated.

Now we shall proceed to consider the decided cases. We shall first take up the cases relied on by the appellants. The appel- · lants placed great deal of P~liance on the decision of the Madras High Court in Shanmugha Rajeswara Sethupathi v. Income-tax Officer, Karakudi. (') The question that arose for decision therein was· the very question that we are considering in· these appeals. As a result of Madras amendment after Reorganiza!tion of States on November 1, 1956, cl. (e) of s. 3 as in force in Madras reads : ·

"The principal or any other landholder and any other person ·whose rights stand transferred under clause (b) or cease and determine under clause ( c) shall be entitled only to such rights and privileges as are recognised or conferred on him by or under 1this Act."

Despiite this ch~ the Madras High Court _came to the conclusion that an interim payment made, under section 50(2) was compensation -and as such was a capital receipt. The same view was taken by the Madras ·High Court in M. s; Chockalinga Chettiar and Ors. v. Navaneetlu!ikrishna Sivasubramania Hirudala-ya Marudappa P.andayan and Ors. (1) as well as in Ramachandran v. A. N. Krishnamoorthy Iyer.(') The Andhra Pradesh High Court. has taken a contrary_view in the judgments under appeal and in cmo•ther judgment to whlch·-we . shall refer presently.

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In Senairam Doongarmall v. Cdmmissioner of Income-tax, Assam ( 3 ) this Court was called upon to consjder the nature of th~ payment made to 1he assessee which owned a t·~a estate con_sist- .C-ing of tea gardens, factories and oth·~r buildings, for the purpose - oj growing and manufacturing tea. The factory and other build-ings on the estate were requisitioned for defence purposes by ihe military authorities. The asses1ee was paid compensation for the years i944·and 1945 under the Defence of India Rules calcula-ted on the basis of the out-turn of tea. that would have been manufactured by'the assessee during that period. The· question D-was whether the amouqts of comp.~nsation were revenue receipts taxable in the hands of the assessee. The Court held that. •the receipts were capital receipts and hence not liable to be taired. fit is true that in 'tP,at case the questipn for decision was whether the assessees carried on business or not in the years 1944 and 1945 and not whether the. receipts in question were taxable in-come. But all the same, some of the observations made there-in are of assistance in deciding the point in issue in these appeals. ln that case this 'Court ruled that the amounts of compensation received by the assessee were not revenue receipts and did· not comprise any element of income. In the course of the judgment Mr. Justice Hic:l•.yatullah, J. (as he then was) sp~aking for the Court observed :

"The compensatioU'which was'paid_in the two-years. was no doubt paid as an equivalent of the likely pro-fits in those years; but, as pointed put by LOrd Buck-master in ·Glenboig Union Fireclay 'Co. Ltd. v. Com-missioner of Inland Revenue and ajfirmed by Lord Mac-millan in Van den Berghs Ltd. v. Clark :

"there is no relation between the measure that is used for the pm:pose of calculating a particular resu~t and the quality of the figure that is arrived at by means of the application . . of that test."

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(I) (1964] I. Ma1ras Law Journal p. 340;

(2) [!964] I, M1dras Law Journal p, 153;

CJ} 42, LT.R. P. 392

(Hegd(!, J.) This proposition is as sound as it is well-expressed, and has been followed in numerous cases under the Indian Income-tax Act and also by this Court. It is quality of the payment that is decisive of rthe charac-ters of the payment and nD't the method of the payment or its measure, and makes it fall withi11 capital or revenue."

Again at pages 407 and 408 of the Report, the learned Judge observed :

"Now, when the payment was made 'to compensate the assessee, no doubt the measure was the out-turn of tea which would have been manufactured; but 'that has little relevance. The assessee was not compensated ~or loss or destruction of or injury to a capital asset. The buildings were taken for the time being, but the injury was not so much to the fixed capital as to the business as a whole."

Now reference may be made to some of the observations of Rowlatt J. in Simpson (H.M. Inspector of Taxes) v. Executors of Bonner Maurice as Executor of Edward Kay('). In that case a naturalised British subjo~ct had at various dates deposited securi-ties, stocks and shares in banks in Germany. He died during the war. After the Peace Treaty was signed claims of his representa-tives were admited by the Mixed Arbitral Tribunal in respect of amounts representing partly capital of s·~curities realised by sale or redemption, partly interest and dividends and interest thereon, partly compensation under the Treaty computed on the basis of interest on certain amounts. The question was whether the com-pensation computed on the basis of interest was not income for the purposes of incomeJtax. The award of the Tribunal was made in respect of these claims and part of the compensation was a sum calculated on the basis of interest in respect of funds con-sisting of dividends which had been held as an alien property under the German law. Dealing with the question whether the compensation computed on the basis of interest was or was nat income for the purposes of income-tax,· the learned judge obser-ved :

"The question is whether it is income ait all. It is called compensation, but the mere word in the Award "compensation", does not decide the matter, one must look at the substance of what it was, and if it is an-nual profits and gains or income. . . . . . arising from a foreign possession, then it is to be taxed. The foreign possession must have been the fund in the hands of the Treuhander, and the Crown's case is that this has been (11 (1929114, l.C. 580. .

transmuted into sterling at the pre-war rate of exchange and awarded with annual interest ab injitio. The Treu-hander did not receive this money subject to any liability to hold it at interest. No doubt the German law re-cognised it as remaining the property of Mr. Kay, but not so as to bear interest. The trea'ty did not give Mr. Kay any right to interest, nor did i't declare the Treu-hander a trustee so as to found any consequential claim for interest; it did not empower the Tribunal to give interest as such, or 'to make any declaration as to the character of the purpos-~ for which the Treuhander had held the money. The Treaty gave compensation, and the tribunal which assessed the principal sum has ass·~ss­ ed it on the basis of the interest. I think this sum first came into existance by the Award, and no previous history or anterior character can be attributed to it. It is exactly like damages for deitention of a chattl·~ and unless · it can be said that damages for detention of a chattel can be called rent or hire, for the chattel during 'the period of detention, I do not think this compensation can be called interest. I therefore think the Crown fails on this point."

In the appeal court Lord Hanworth, M. R. while confirming the judgment of Rowlattt J., observed :

"The duty to pay compensation was imposed upon them by the Treaty. The Statute does not apply rt, and the root of the payment is the duty 'to pay com-pensation ........ For withholding this sum, for pre-venting Mr. Kay, or his executors, exercising the power of disposition over his property, the Germans have been compelled to pay compensation. The way to estimate that compensation or damages-the sensible way no doubt-would be by calculating a sum in terms of what interest it would have earned. That has been done, but the sum that was paid has not bP...en turned into interest so as to attach Income-tax to it. It remains compensa-tion and, for these reasons, it appears 'to me that it is not a sum which attracts or attaches Income Tax to it."

The above observations undoubtedly suppovt the case of the appellants.

On the side of the Department reliance was placed on the decision of this Court in Raja Ramashwam Rao v. Com·missioner of Income-tax . . Hyderabad. (1') Therein this Court was called (Hegde, /.) upon to decide the nature of the payment made under s. 14 of The Hyderabad (Abolition of Jagirs) Regulation, 1358F under which the management of Estates was taken over. Section 14 of that Regulation provided that the amount payable to Jagirdars and Hissedars under that Regulation "shall be deemed to be in-terim maintenance allowances payable until such time as the terms for the commutation of Jagirs are determined". Section 3 of The Hyderabad Jagirs (Commutation) Regulation, 1359F laid down that commutation sum for a J agir would be a certain multiple of its basic annual revenue. Section 6 of that Regulation provided that the commutation sum for each Jagir would be distributable betwe·~n the Jagirdar and Hissedars in certain proportions. Sub-section (2) of s. 7 of that Regulation stated that payment to a Jagirdar of the commutation sum of the J agir shall constitute the final commutation as from the !st April 1950 of his rights in the Jagir and if any payment by way of an interim maintenance allowance under the said Regulation, that is, the former Regula-tion, is made in respect of a period subsequent to the said date, the amount of such payment shall be recol'ered from the recipient thereof by deduction from his share in the commutation sum for the Jagir. On an interpretation of s. 14 of the Regulation of 1358 F, this Court held that the interim maintenance allowances paid under that section were rr,venue receipts on which income-tax can be imposed. Some of the observations found in that judg-ment undoubtedly support the case of the Department. But we must see under what circumstances those observations were made.

In order to understand the ratio of that decision, we must bear in mind the provisions of the two Regulations referred to hereinbefore. The first Regulation provided for the taking over of the management of the Estates and the second Regulation prescribed the mode of determining the commutation sum in res-pect of each jagir and for its payment. The character of the receipt which this Court was called upon to consider was the maintenance allowance paid under s. 14 of the first of the two Regulations. Under that Regulation, the Administra!tor of Jagirs took ov>~r the management of the Estates pending making provi-sion for determination of the commutation amount. Provision in that regard was made under the second Regulation. Till the pay-ment of the commutation sum, the Administrator merely managed 1the Estates on behalf of the former owners of those Estates. This is clear from ss. 5, 8, 11, 12, B and 14 of the first Regulation. Under s. 5 thereof the quandum Jagirdars were required to hand· over the possession of their Estates to the Jagir Administrator. Section 8 required the former Jagirdars to pay to the Government 1the administration expenses of their Estates. Section 11 provided for distribution of net income of an Estate between the J agirdar and his Hissedars who were entitled to a share in the income of the Estwte. Section 12 ( 1) says :

"From the amount payable to any person under section 11, there shall be deducted the amount of any maintenance allowance which under sub15ection (2 J is debitable 'to the share of that person."

Section 13 required the Jagir Administrator to maintain separate account in respect of each Jagir and afford the concerned Jagir-dar and Hissedar reasonable facilities for the inspeotion of the same. Section 14 reads :

"The amounts payable to Jagirdars and Hissedars under the Regulation shall be deemed to be int·~rim maintenance allowances payable until such time as the terms for the commutation of jagjrs are determined." It is the character ofthe payments made under s. 14 that came up for consid·~ration before this Court in Rameshwar Rao's case (1). . Quite clearly the maintenance a!lolwances paid were revenue receipts. Hence 1hat decision has no bearing on the question of law under consideration in the present case. The observations made by this Court in that decision must be read in· the light of the faC'ts of that case.

The decision of Mr. Justice· P. Jaganmohan Reddy (as he then was) in Kumara Rajah of Venkatagiri and ors. v. Income-wx Officer, A-Ward-Ne/lore and anr.(') sitting singly proceeded on the basis 'that the ratio of the d·~cision of this Court in Raja Rameshwar Rao's case is equally applicable to payments under s. 50(2) of the Act. The same view was taken by the judges of the High Court who rendered the decisions under appeal. For the reasons mentioned earlier both 'those decisions must be held to have proceeded on an erroneous view of the decision of this Court.

On behalf of the Revenue, reliance was placed on the decision of this Court in Chandroji Rao v. Commissioner of Income-tax, Madhya Pradesh('). To tha't decision both of us were parties. The question for decision in that case was whether the payments of interest made under s. 8 (2) of the Madhya Bharat Abolition of Jagirs .Act, 19~ 1 was a Revenue receipt or a capital receipt. That sectton provided for the payment of interest on the com-pensation payable to the Jagirdars by the Government under s. - (1 ) for resumption of their Jagir lands. This Court held that the receipt of interest under s. 8 (2) of that Act was a taxable income. The Court observed that there was a clear distinction between the comp.ensa1ion payable under s. 8 ( 1) and the interest payable under sub-s. (2) of s. 8. The payment under s. 8(2) was given to the Jagirdar for his being kept out of the compen-sation amount to which he was entitled for a period of ten years and •that i1 was not a payment for the acquisition of the Jagir. Therein the Court explained the distinction betwe~n the payment made for depriving the use of a money to which a person is en-titled and that made for 1he destruction or taking away his pro-perty, the former being a revenue receipt and the latter a capital receipt.

For the reason~ mentioned above these app.~als are allowed. In those cases where the question of law men'tioned earlier was referred to the High Court for its opinion, the answer given by the High Court is discharged and in its place we answer the ques-tion in favour of the assessee. So far as the writ petitions are concerned, the order of the High Court is ~~t aside, the writ peti-tions are allowed and the concerned Income-tax Officers are pro-hibited from including the in1terim payments received by the peti-tioner under s. 50 ( 2) of the Act in his assessment. The appel-lants shall be entitled to their costs in these appeals both in this Court as well as in the High Court. In this Court only one hear-ing fee is allowed.

3-Ll340Sup CI/71