03 February 1960
Supreme Court
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S. N. NAMASIVAYAM CHETTIAR Vs THE COMMISSIONER OF INCOME-TAX,MADRAS(With connected appea

Case number: Appeal (civil) 218 of 1955


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PETITIONER: S. N. NAMASIVAYAM CHETTIAR

       Vs.

RESPONDENT: THE COMMISSIONER OF INCOME-TAX,MADRAS(With connected appeals

DATE OF JUDGMENT: 03/02/1960

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1960 AIR  729            1960 SCR  (2) 885  CITATOR INFO :  RF         1991 SC1338  (14)

ACT:        Income Tax-Asscssment-Rejection of accounts and estimate  of        Profits-Computation  of Profits supported by cases of  other        assessees  Stock register--Effect  of  Non-production-Indian        Income-tax Act, 1922 (XI Of 1922) S. 13 Proviso.

HEADNOTE: The appellant, a resident and ordinarily resident in  India, carried  on  trade in Colombo in grains and  foodstuffs  for cattle.   For the relevant assessment years  the  Income-tax Officer  rejected the accounts produced by the appellant  on the  grounds inter alia that there was absence  of  vouchers and that the stock account and the manufacturing account had not  been kept or produced; and he then made an estimate  of the  profits.  The Appellate Tribunal also agreed  with  the Income-tax  Officer and held that the correct profits  could not  be deduced from the books produced by the assessee  and that therefore the proviso to s. 13 of the (1)(1959) II L.L.J. 38. 886      Indian income-tax Act, 1922 applied.  Having taken into consideration  all  the relevant factors  it  computted  the profits at 15 on grains imported from India and 12 1/2 %  on grains   purchased  in  Ceylon,  and,  in  support  of   its computation, it pointed out that in certain cases  which had   come   to   its   notice   the   rates   of    profits went Up to 20%.      The appellant challenged the validity of the assessment on the ground that the principle of natural justice had been violated  in that the Tribunal had taken into  consideration the  rate  of  profit  in  other  cases  without  giving  an opportunity  to  the appellant to explain those  cases,  and relied upon Dhakeshwari Cotton Mills Ltd.v.The  Commissioner of  lncome-tax,  WestBengal. [1I955] i S.C.R.  941-  He  also urged that the non-production of stock account was not  such a defect as to entitle the Taxing Authorities to reject  the books and apply the proviso to s. 13 of the Act. Held:(1) that the percentage of profits made by traders in  other cases was not the basis made by the  Tribunal  for arriving  at  any conclusion as to the percentage  at  which

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income  should  be  computed in the present  case,  but  was merely  an  ancillary support to that  conclusion  and  that Dhakeshwari Cotton Mills Ltd. v. The Commissioner of Income- tax, West Bengal, was not applicable to the case. (2)that  the  keeping  of a stock  register  is  of  great importance  because  that  is  a  means  of  verifying   the assessee’s accounts by having aquantitative tally;  that if,  after taking into account all the  materials  including the  want  of a stock register, it is found  that  from  the method of accounting correct profits of the business are not deducible, the operation of the proviso to s. 13 of the  Act would be attracted. Ghansyam Das Permanand v. Commissioner of Income-tax C.P.  & Beray (1952) 21 I.T.R. 79, Bombay Cycle Stores Company  Ltd. v.  Commissioner  of  Income-tax. (1958) 33  I.T.R.  13  and Commissioner of Income-tax v. McMillan and Co. [1958] S.C.R. 689, relied on.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeals No. 218 of  1955        and 219 to 223 of’ 1955.        Appeal  by special leave from the judgment and  Order  dated        September  14, 1951, of the Income-tax  Appellate  Tribunal,        Madras, in I.T.A. No. 3158 of 1949-50.                                       and        Appeals  by special leave from the judgment and order  dated        September,  30, 1953, of the Income-tax Appellate  Tribunal,        Madras, in I.T.A. Nos. 7840 of 1952-53  and  E.P.T.A.   Nos.        300, 301 and 302 of 1952-53.        S.   Chowdhuri,  N.  A. Palkhivala and Naunit Lal,  for  the        appellant.        887        H.   N. Sanyal, Additional Solicitor-General of India,        R.   Ganapathi  lyer and D. Gupta for the  respondent.         1960 February 3. The Judgment of the Court was delivered by        KAPUR J. -In these six appeals the common question raised is        whether  the  proviso  to s. 13 of  the  Income-tax  Act  is        applicable  to the facts and circumstances of  these  cases.        They  are  therefore  disposed of by  one  judgment.   Civil        Appeal No. 218 of 1955 arises out of the assessment for  the        year 1943-1944.  Civil Appeals Nos. 219 to 223 relate to the        assessment years 1944-1945, 1946-1947 and for the chargeable        accounting  periods from January 1943 to February 1944,  and        from February 1945 to February 1946.  The appellant in  each        of  the  appeals is the assessee and the respondent  is  the        Commissioner of Income-tax and Excess Profits Tax, Madras.        The  appellant  is a ’resident and ordinarily  resident’  in        India  and carried on extensive trade in Colombo in  grains,        folder,  gram and other food-stuffs for cattle and  poultry.        For  the  assessment year 1943-1944 the appellant  showed  a        turnover  of Rs. 17,74,825 and a gross profit of Rs.  63,217        which  is  about  3.5  per  cent.   For  the  two   previous        assessment  years the appellant’s gross profits were  9  per        cent  and 8 per cent respectively.  The Income-tax  Officer,        by his order dated March 20, 1948, rejected the accounts and        estimated  the gross profit by adding back Rs.  2,38,831  to        the  returned  income.  Thus he raised the turnover  to  Rs.        20,00,000  and  the gross income to Rs.  3,00,000  giving  a        profit of 15 per cent on the estimated turnover.  On  appeal        to  the Appellate Assistant Commissioner, the order  of  the        Income-tax Officer was confirmed.  The Income-tax  Appellate        Tribunal  on appeal by its order dated September  14,  1951,        after  pointing  out various defects, rejected  the  account

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      books but accepted the appellant’s turnover and computed the        profits at 15 per cent on grains imported from India and 121        per  cent  on  grains purchased in  Ceylon.   It  held  that        correct  profit for the year under assessment could  not  be        deduced  from  the  books produced by  the  appellant.   The        Excess Profits tax        113             888         for the chargeable accounting period from February 10, 1942        to January 16, 1943, was decided on the basis of the Income-        tax assessment for the year 1943-44.  On November 21,  1951,        the appellant applied to the  of Tribunal for stating a case        under s. 66(1) on the    following four questions:             (1) Whether under the circumstances of the case     the        Tribunal  was  justified in holding that Section 13  of  the        Indian Income-tax Act applies to the case.        (2) Whether the reasons set out by the Appellate Tribunal in        paragraph 2 of its judgment are sufficient to invoke Section        13 of the Act.        (3)  Whether   the  Tribunal,  having  disagreed  with   the        department on the basis of the assessment, had  jurisdiction        to  apply  Section 13 and make an assessment on  an  alleged        estimate.        (4)  Whether  the  Tribunal  was  justified  in  making   an        assessment  on  the basis of Section 13  without  giving  an        adequate  opportunity to the assessee to meet the  materials        upon which eventually the assessment was rested.        But the Tribunal, by its order dated February 12, 1950, held        that  no  question of law arose and  therefore  declined  to        state  a  case  and  thus  rejected  the  application.   The        appellant then applied to the High Court of Madras under  s.        66(2)  of the Act on the same four questions of  law.   This        application was dismissed by the High Court on February  26,        1953.   Against  this  order of the  appellant  applied  for        special leave to appeal and, by leave of this Court, amended        the petition so as to make it an appeal against the order of        the  High Court as well as the order of the  Tribunal  dated        September 14, 1951.        In  the other appeals also the course of proceedings  before        the Income-tax Officer, the Appellate Assistant Commissioner        and the Income-tax Appellate Tribunal was the same.  For the        assessment   years  1944-1945  and  1946-47  the   appellant        disclosed  a  turnover  of Rs. 10,35,748  and  Rs.  5,98,728        respectively and the gross profits rates were 10.7 per  cent        and 8.7 per cent respectively.  As the books of accounts  in        regard  to  these years also were rejected,  the  Income-tax        Appellate Tribunal applied s. 13 and estimated the gross        889        profit  rates  at 12 1/2 per cent and 10 per  cent  for  the        respective  years.   The appellant applied to  the  Tribunal        under  s.  66(1) of the Act for stating a case to  the  High        Court for its decision on the following two points:        (1)  Whether  on the facts and in the circumstances  of  the        case,  the Department was right in acting under the  proviso        to  section  13 of the Act in th absence of a  finding  that        income,  profits and gains cannot properly be  deduced  from        the books produced or that no method of accounting has  been        regularly employed.        (2)  Whether  on the facts and in the circumstances  of  the        case,  the Department had sufficient materials before it  to        justify  the rates of 12 1/2 per cent and 10 per cent  gross        profits  on the total turnover on the ground that the  rates        worked out by the figures submitted by the assessee work out        at a lesser figure.        The Tribunal dismissed the application on January 15,  1954.

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      The appellant did not apply to the High Court under s. 66(2)        of  the Income Tax Act but obtained special leave from  this        Court against the order of the Tribunal by which it  applied        the  proviso  to s. 13 of the Income Tax Act.  All  the  six        appeals  were  heard together and a common  question  arises        whether  the Income tax Appellate Tribunal was justified  in        applying the proviso to s. 13 of the Income Tax Act.        It was contended by the appellant in Civil Appeals Nos. 218,        219  and 221 of 1955 that the Income-tax Appellate  Tribunal        was  not  justified  in applying the proviso to  s.  13  and        assuming  that  the proviso did apply  then  the  percentage        worked  out  was  unjustified and had  been  arrived  at  by        relying upon material which the appellant had no opportunity        to  meet  and  therefore the case fell within  the  rule  in        Dhakeshwari Cotton Mills Ltd. v. The Commissioner of Income-        tax,  West  Bengal  (1) where a  similar  violation  of  the        fundamental  rule  of natural justices.e.,  the  information        upon  which  the Tribunal relied was not  disclosed  to  the        assessee and no opportunity was given to him        (1)[1955] I S.C.R. 941.        890             to  rebut  such material-was held to be  a  ground  for        interference with the order of the Tribunal.             It  was  rightly  argued  that  the  power  to  compute        -profits  under  the proviso to s. 13 arises only  where  no        method  of  accounting has been regularly  employed  by  the        assessee  and  where the method employed is  such  that  the        income, profits and gain cannot properly     be      deduced        therefrom.  It means that the method adopted by the assessee        must  prima  facie prevail where it is  regularly  employed,        though  the Incometax Officer can resort to the  proviso  if        the  method  is such that true profits cannot  be  correctly        determined therefrom.  In other words, even if the  assessee        has  regularly  employed a method of accounting  it  can  be        discarded  under  the proviso if the method  does  not  show        correct profits of the year.        The  Appellate  Tribunal, by its order dated  September  14,        1951,  held that correct profits could not be  deduced  from        the books produced by the assessee and therefore the proviso        to s. 13 of the Income Tax Act applied.  The reasons it gave        were (1) that vouchers for several purchases made in Colombo        had not been produced and for purchases of over Rs. 3,00,000        no  vouchers were forthcoming and without the  vouchers  the        entries  in the account books could -not be verified  ;  (2)        there was no quantitative tally for the grains and for other        materials purchased by the appellant, which were ground into        powder,  turned into fodder, packed in different  sizes  and        then sold.  It was not possible, according to the  Tribunal,        to  accept the books of account, where the turnover  was  as        large   as  about  seventeen  lacs  of  rupees,  without   a        quantitative  tally;  (3)  a fairly big  sum  of  money  was        alleged  to have been paid towards purchasing of  license,-,        for  export  from India; and Rs. 19,000 worth  of  purchases        were  made  in Tuticorin when only a small sum of  money  in        cash  was  shown  in the assessee’s  accounts;  (4)  several        outsiders’  cheques had been entered in the accounts of  the        assessee without any proof as to why those cheques were paid        to the assessee; and (5) a fairly big sum of money had  been        invested in India in the purchase of property without        891        money  being  received  from Colombo.  On  these  facts  the        Tribunal said:        In view of these defects, we are clearly of opinion that the        correct profit could not be deduced from the books  produced        by  the  assessee,  and accordingly  hold  that  proviso  to

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      Section  13 of the Act applies in this case.  The  question,        therefore, is regarding the estimate.’        After giving this finding the Tribunal accepted the turnover        as   shown  in  the  appellant’s  books.   In   making   the        computation of profits the Tribunal took into  consideration        the  following matters: that the export of food grains  from        India was prohibited except under a license, that there  was        an  acute  shortage  of  cattle fodder  in  Ceylon  and  the        appellant had to resort to dubious means in order to  obtain        grains,  that  during a substantial portion of the  year  of        accounting  there was no price control in Colombo,  that  as        the appellant was a manufacturer of forage by mixing several        kinds of grains and powdering them and sold them in  packets        of  various  weights, the appellant must  have  made  higher        profits  than persons who deal in grain only.   Keeping  all        this  in view the Tribunal was of the opinion that the  rate        of 15 per cent adopted in regard to imported grains was  not        too  high  but in the case of local purchases  it  was,  and        therefore  reduced the rate of profit in the latter case  to        121  per  cent.  It was on this material that  the  Tribunal        adopted the figure of profit as estimated by the  Income-tax        Officer,  and in order to support this opinion further,  the        Tribunal  remarked that in certain cases which had  come  to        its notice the rate of profits ’went up to 20 per cent.’        On the basis of this remark it was argued that the principle        of  natural justice had been violated in that  the  Tribunal        had  taken  into consideration the rate of profit  in  other        cases  without  giving an opportunity to  the  appellant  to        explain those cases and relied upon Dhakeshwari Cotton Mills        Ltd.  v.  The Commissioner of Income-tax,  West  Bengal  (1)        where a violation of the fundamental rule of justice,  i.e.,        where the information was not disclosed to the assessee  and        no opportunity was given to rebut that material, was        (1)  [1955] I. S.C.R. 941        892             held to be a ground for interference with the order  of        the Tribunal.  In our opinion, no such case arises in   the        present  appeal.  No information, as in  Dhakeshwari’s  Case        was  supplied  to the Tribunal by any one    and  taken into        consideration by it, and therefore it was not necessary to        give any such opportunity as the appellant contends for.  In        the present case the Tribunal has held that from the  method        of accounting adopted by the appellant correct profits could        not  be  deduced because of the various reasons  which  have        been  set  out above and the reference to  profits  made  in        other  cases was only by way of supporting that  conclusion.        It was not the basis on which the conclusion was formed  nor        the basis on which the percentage was arrived at.        As  a  matter  of  fact, the  Income-tax  Officer  who  also        rejected  the  accounts  of the  appellant  had  also  given        similar  reasons.   He had held that there  was  absence  of        vouchers,  that  the  stock account  and  the  manufacturing        account  had not been kept or produced, that the cheques  of        other  parties  had  been credited in the  accounts  of  the        appellant  which had not been explained and that  there  was        purchase  of  goods and property by  the  appellant  without        there being sufficient cash in hand.  The Income-tax Officer        also said that in other cases where grains were purchased in        India  and sold in Colombo the rates of profit were  higher,        ranging between 20 per cent and 39 per cent.  He then worked        out profits in respect of various grains in the case of  the        appellant  and found that the average rate of  gross  profit        worked  out to 15.8 per cent., and in his opinion the  gross        profit  in fodder should have been higher.  He further  took        into consideration the fact that Colombo was bombed in April

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      1942, resulting in panic in that town and therefore during a        portion of the accounting year the appellant might not  have        made  the same margin of profit.  He estimated the sales  at        twenty  lacs  and  the  gross profit  at  three  lacs,  thus        arriving  at  a figure of 15 per cent on the  turnover.   It        appears  to us that neither the Income-tax Officer  nor  the        Appellate  Tribunal relied upon the profits made by  traders        in other cases as a basis for arriving at any conclusion        893        as to the percentage at which the income should be  computed        and  that they used that material for a  different  purpose.        It  is  extremely doubtful if the order  of  the  Income-tax        Officer  or  the Tribunal would have been  different  if  no        reference  had  been made to the rate of  profits  in  other        cases.  In other words, the profits in other cases were  not        the reason for holding that 15 per cent. profit was a proper        rate but merely an ancillary support to that conclusion.        It may be mentioned that throughout in his grounds of appeal        the appellant has emphasised the inapplicability of s. 13 of        the Income Tax Act and the proviso thereto, but not to  this        particular  violation  of  principles  of  natural   justice        whichwas  emphasised and particularised before us.   In  his        appeal to the appellate Assistant Commissioner no  objection        was taken to the reference by the Income-tax Officer to  the        rate  of  profits made by other dealers in grains.   In  the        grounds  of appeal. to the Tribunal also there was  no  such        objection.   In the application under s. 66(1) there was  no        specific ground taken and in the application under s.  66(2)        the matter does not seem to have been raised.  The order  of        the High Court, dated February 26, 1953, does not show  that        any such question was raised before it; all it shows is that        the appellant’s books of account were found to be  defective        and afforded no data for arriving at correct profits of  the        business.   The order also refers to the  non-production  of        invoices, the unexplained steep fall in profits made  during        the  year when compared with the previous years.   The  High        Court  could  not find any legal flaw in the  order  of  the        Appellate  Tribunal  to justify an order for  directing  the        case to be stated.  In the grounds of special leave to  this        Court no pointed reference was made to the material which is        now alleged to have been used by the Tribunal without giving        an  opportunity to the appellant to explain  that  material.        An  amended  petition by leave of this Court  was  filed  on        April 28, 1954, and there also no such pointed reference was        made  to the material to which objection is now being  taken        before  us.  Dhakeshwari’s Case (1) cannot, in our  opinion,        apply to the facts of this case,        (1)  [1955] I. S.C.R 941        894        It was then urged that the four reasons given,    which   we        have set out above, could not make s. 13  applicable. for        the rejection of accounts several reasons were given by  the        Appellate  Tribunal;  one  of these  reasons  was  the  non-        production.  of stock registers and manufacturing  accounts.        This reason was given    by   the  Income-tax  Officer   and        adopted  by the Appellate Tribunal.  It was  submitted  that        the non-production of stock account was not such a defect as        to  entitle the Taxing Authorities to reject the  books  and        apply  the  proviso to s. 13.  Reliance was  placed  on  the        judgment of the Punjab High Court in Pandit Brothers v.  The        Commissioner  of Income-tax, Delhi (1).  The facts  in  that        case  were  very different.  The  Income-tax  Officer  there        added a certain sum to the assessee’s profits on the  ground        that  the  expense  ratio  was  too  high  and  the  profits        disclosed were too low and there was no stock register.  The

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      finding  in  that  case was  that  the  assessee  maintained        regular accounts of his purchases and sales and there was no        finding  by the Income-tax Officer that in his  opinion  the        income could not properly be deduced therefrom.  Khosla,  J.        (as he then was) there said:        ‘  There  is no finding that there was material  before  the        Income-tax  Officer  to lead him to the  conclusion  that  a        proper  statement of income, profits and gains could not  be        deduced  from the material placed before him.  All  he  said        was  that the profits appeared to be somewhat low and  there        was no stock register.’.        The  want of a stock register was, in that particular  case,        not a very serious defect because the account books had been        found and accepted as correct and disclosed a true state  of        affairs.   It cannot therefore be said that that  case  laid        down  as  a  proposition of law that the  want  of  a  stock        register by which a proper check could be made was not  such        a   serious  defect  as  to  make  the  proviso  to  s.   13        inapplicable.        The  importance  of  such register was pointed  out  by  the        Nagpur High Court in Ghanshyam Das Permanand v. Commissioner        of  Income-tax,  C.P.  & Berar (2).  In cases  such  as  the        instant case, the keeping of a        (1) [1954) 26 I.T.R. 159.        (2) [1952] 21 I.T.R. 79, 81.        895        stock  register  is of great importance because  that  is  a        means  of  verifying  the assessee’s accounts  by  having  a        quantitative tally’.  If, after taking into account all  the        materials  including  the want of a stock  register,  it  is        found that from the method of accounting correct profits  of        the business are not deducible, the operation of proviso  to        s. 13 of the Income-tax Act would be attracted, Bombay Cycle        Stores  Company Ltd. v. Commissioner of Income-tax (1).   It        may also be added, as was held by this Court in Commissioner        of  Incometax  v.Mac Millan & Co. (2), that  the  Income-tax        Officer,  even  if  he  accepts  the  assessee’s  method  of        accounting,  is not bound by the figure of profits shown  in        the  accounts.   It  is for the  Income-tax  Authorities  to        consider  the material which is placed before them and,  if,        after taking into account in any case the absence of a stock        register  coupled  with  other materials  they  are  of  the        opinion  that correct profits and gains cannot  be  deduced,        then  they would be justified in applying the proviso to  s.        13.  In our opinion therefore when the Tribunal applied  the        proviso to s. 13 because of the various blemishes which were        pointed  out by the Income-tax Officer and accepted  by  the        Appellate  Tribunal,  it cannot be said that there  was  any        error in the order of the Appellate Tribunal justifying  the        interference of this Court under Art. 136.        In  regard to the Appeal No. 220 of 1955 for the  assessment        year  1946-1947 the objection raised was that  the  Tribunal        had   committed  the  same  error  in  that  it  took   into        consideration  the earlier decision of the Tribunal  ’in  an        identical situation’ i.e., in the case of the same  assessee        in regard to previous years.  As we have held that there was        no  error  in  the order of the Tribunal in  regard  to  the        previous  years, it cannot be said that this observation  of        the  Tribunal  was  in any manner  erroneous.   This  appeal        should therefore be dismissed.        The  other appeals which arise Under the Excess Profits  Tax        Act  for  the various chargeable accounting  periods  depend        upon the result of the Income-tax        (1) [ 1958] 33 I.T.R. 13.   (2) [1958] 33 I.T.R. 182, 197.        114

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      896             assessment  appeals  and, as we  have  dismissed  those        appeals, these appeals also must be dismissed.             In  the result all the six appeals are  dismissed  with        costs.   As  the  appeals were consolidated  there  will  be        of One set of costs.                                                 Appeals dismissed.