BACHA F. GUZDAR versus COMMISSIONER OF INCOME-TAX, BOMBAY.

1954 Kun.jilal and Another v. The State of Madhya Pradesh. Ghulam Hasan].

1954 October 28.

to the contention raised on behalf of the appellants. That sub-section reads :

"403 (2) .-A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, sub-section (I)."

The appellants were not tried again for the same offence as contemplated under section 403(1) but for distinct offence as contemplated by sub-section (2). It is true that in order to sustain the charge under sections 332 and 392, Indian Penal Code, the Court had to consider whether the seizure was legal and was made by public servant in the discharge of his duty but once that was found against the appellants the further question to be determined was as to whether they committed the offence of robbing the Head Constable of the goods lawfully seized and whether they voluntarily caused hurt to him while he was acting in the discharge of his duties as public servant. Upon both these points the finding of the Courts below is concurrent. We hold that there is no substance in this contention. We accordingly dismiss the appeal.

Appeal dismissed.

BACHA F. GUZDAR

COMMISSIONER OF INCOME-TAX, BOMBAY. [MEHR CHAND MAHAJAN C.J., S. R. D~s, GHULAM HASAN, BHAGWATI and VENKATARAMA AYYAR JJ.J

Indian Income-tax Act (XI of 1922), ss. 2(1), 4(3) (viii), 59 and rule 24-Agricultural Income, Meaning of-Growing and manu· facturing tea company's dividend, Nature of-Dividend how arises ·-Distinction bettveen shareholder and partner-Difference between company and firm-Decided cases on English Tax Uw, Use of.

Agricultural income as defined ins. 2(1) of the Indian Income-tax Act, 1922, signifies income proximately derived from direct association with land by ·person who actually tills the · land 01

S.C:.R.

gets it cultivated by others. Agricultural income does not mean income which can be ultimately or indirectly traced to have connection with agricultural operations.

Even though tea company growing and manufacturing tea gets an exemption of 60 per cent. of the profits as agricultural income in accordance with rule 24 framed under s. 59 of the Act, it must be held that the dividend of such company is not derived by the shareholder owing to his direct connection with the land in which tea is grown and such dividend is not agricultural income within the meaning of s. 2 (1) of the Act and hence is not exempted from income-tax under s. 4(3) (viii) of the Act.

The dividend of shareholder is the outcome of his right to participate in the profits of the company arising out of the con-tractual relation between the company and the shareholder and this right exists independently of any declaration of the dividend though until such declaration the enjoyment of the profits is post-poned.

The shareholder by purchase of the share does not acquire any interest in the assets of the company till after the company is wound up. The position of shareholder of company is al-together different from that of partner of firm. company is juristic entity distinct from the shareholders but the firm is collective name or an alias for all the partners.

Decisions based on the peculiarities of Income-tax law of England are hardly safe guides for determining the true meaning of the term "agricultural income" under the Indian Income-tax Act, 1922.

Chiranjit Lal ChowdhU1·i v. The Union of India [1950] S.C.R. 869) followed.

Commissioners of Inland Revenue v. Forest (1924) 8 T.C. 704, Borland's Trustee v. Steel Bmthers & Co. Ltd. L.R. [1901] 1 Ch. 279, Commissioner of Income-tax, Bihar and Orissa v. Raja Bahadur Kamakshya Narayan Singh and Others [1948] 16 I.T.R. 325, Premier Construction Co. Ltd. v. Commissioner of Income-tax, .Bombay City [1948] 16 I.T.R. 380 and Maharajkumar Gopal Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa [1935] 3 I. T.R. 237 referred to .

CrvrL APPELLATE JuRrsorcnoN : Civil Appeal No. 104 of 1953. Appeal from the Judgment and Order dated the 28th day of March, 1952, of the High Court of Judicature at Bombay in Income-tax Reference No. 39 of 1951 arising out of the Order dated the 23rd day of April, 1951, of the Income-tax Appellate Tribunal in Income-tax Appeal No. 5228 of 1950-51.

Bacha F. Guzd«r Y. Commissioner •f Income-tax, Bamba .v.

1954 Bacha F. Guzdar v. Commissioner of lncome·tax, Bombay.

Ghulam Hasan j.

/amshedji Kanga, (R. /. Kolah, M. M. Jhaveri and Rajinder Narain, with him) for the appellant. M. C. Setalvad, Attorney-General for India, ( G. N. Joshi, with him) for the respondent. 1954. October 28. The Judgment of the Court was

delivered by

GHULAM HASAN J.-This appeal raises an interest-ing point of law under the Indian Income-tax Act. The question referred by the Tribunal to the High Court of Judicature at Bombay was stated thus : "Whether 60% of the dividend amounting to Rs. 2,750---received by the assessee from the two Tea companies is agricultural income and as such exempt under section 4(3) (viii) of the Act." Chagla C.J. and Tendolkar J., who heard the refer-ence, answered the question in the negative. by two separate but concurring judgments dated March 28, 1952. The facts lie within narrow compass. The appel-lant, Mrs. Bacha F. Guzdar, was, in the accounting year 1949-50, shareholder in two Tea compa111es, Patrakola Tea Company Ltd., and Bishnauth Tea Company Ltd., and received from the aforesaid com-panies dividends aggregating to Rs. 2,750. The two -companies carried on business of growing and manu-facturing tea. By rule 24 of the Indian Income-tax Rules, 1922, made in exercise of the powers conferred by section 59 of the Indian Income-tax Act, it is provided that "income derived from the sale of tea .grown and manufactured by the seller in the taxable territories shall be computed as if it were income derived from business and 40% of such income shall be deemed to be income, profits and • gains, liable to tax." It is common ground that 40%. of the income -0f the Tea companies was taxed as income from the manufacture and sale of tea and 60% of such income was exempt from tax as agricultural income. According to the appellant, the dividend income received by her in respect of the shares held by her in the said Tea <:ompanies is to the extent of 60% agricultural income in her hands and therefore pro tanto exempt from tax while the Revenue contends that dividend income is

not agricultural income and therefore the whole of the income is liable to tax. The Income-tax Officer and, on appeal, the Appellate Assistant Commissioner both concurred in holding the whole of the said income to be liable to tax. The Income-tax Appellate Tribunal confirmed the view that the dividend income could not be treated as agricultural income in the hands of the shareholder and decided in favour of the Revenue, but agreed that its order gave rise to question of law and formulated the same as set out above and referred it to the High Court. The High Court upheld the order of the Tribunal but granted leave to appeal to this Court. The question, we comprehend, is capable of an easy solution and can best be answered by reference to the material provisions of the Income-tax Act. Under section 2(1) 'agricultural income' means: "(a) any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land-revenue in the taxable territories or subject to local rate assessed and collected by officers of the Government as such ;

(b) ....................... ' ' .......... .

(i) ............... . . \~9 . ' .. ' .......... .

(111) ..........•.....

(c) .......................... "

Sub-section ( 15) of section 2 defines "total income" as total amount of income, profits and gains, referred to in sub-section ( 1) of section 4 computed in the manner laid down in this Act, Section 3 authorises income-tax to be charged upon person in respect of the total income of the previous year. Section 4 lays down that the total income of any previous year of any person to be charged must include all income, profits and gains, from whatever source derived and defines the scope of its application for purposes of tax. Sub-section (3) of the same section enacts c;ertain exemptions upon the chargeability of the income and clause (iii) includes agricultural income in the category of exemptions. Section 6 mentions the various heads of income, profits and gains, chargeable to income-tax

1954 Bacha F. Guzdar v. Commissioner of I ncomt-tax, Bombay. Ghulam Hasan :J.

1954 Bacha F. Gut:dar v. CommissioTUr of lnromeMtax, Bombay. GhuJam Hasan ].

including in that category clause ( v) 'income from other sources.' It is common ground that dividend falls under this category. In order, however, that dividend may be held to be agricultural income it will be incumbent upon the appellant to show that, within the terms of the defini-tion, it is rem or revenue derived from land which is used for agricultural purposes. Mr. Kolah, for the appellant, contends that it is revenue derived from land because 60% of the profits of the company out of which dividends are payable are referable to the pur-suit of agricultural operations on the part of the company. it is true that the agricultural process renders 60% of the profits exempt from tax in the hands of the company from land which is used for agricultural purposes but can it be said that when such company decides to _distribute its profits to the share-holders and declares the dividends to be allocated to them, such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for. agricultural purposes ? Such position if accepted would extend the scope of the vital words 'revenue derived from land' beyond its legitimate limits. Agricultural income as defined in the Act is obviously intended to refer to the revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part there-cf changes hands either by way of distribution of dividends or otherwise. In fact and truth dividend is derived from the investment made in the shares of the company and the foundation of it rests on the contractual relations between the company and the shareholder. Dividend is not derived by share-holder by his direct relationship with the land. There can be no doubt that the initial source which has produced the revenue is land used for agricultural pur-poses but to give to the words 'revenue derived from land' the unrestricted meaning, apart from its direct association or relation with the land, would be quite unwarranted. For example, the proposition that creditor advancing money on interest to an agriculturistand receiving interest out of the produce of the lands in the hands of the agriculturist can claim exemption of tax upon the ground that it is agricultural income within the meaning of section 4, sub-section (3) (viii), is hardly statable. The policy of the Act as gathered from the various sub-clauses of section 2(1) appears to be to exempt agricultural income from the purview of Income-tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom, but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls, however remote the receiver of such revenue may be, is hardly warranted. It was argued by Mr. Kolah on the strength of an observation made by Lord Anderson in Commis-sioners of Inland Revenue v. Forrest (1), that an investor buys in the first place share of the assets of the industrial concern proportionate to the number of shares he has purchased an<l also buys the right to participate in any profits which the company may m::ike in the future. That shareholder acquires right to participate in the profits of the company may be readily conceded but it is not possible to accept the contention that the shareholder acquires any interest in the assets of the company. The use of the word 'assets' in the passage quoted above cannot be exploited to warrant the inference that shareholder, on invest-ing money in the purchase of shares, becomes entitled to the assets of the company and has any share in the property of the company. shareholder has got no interest in the property of the company though he has undoubtedly right to participate in the profits if and when the company decides to divide them. The interest of shareholder vis-a-vis the company was explained in the case of Chiranjitlal Chowdhuri v. The Union of India and Others(2). That judgment negatives the position taken up on behalf of the appellant that shareholder has got right in the property of the company. It is true that the shareholders of the company have (r) [1924] 8 T. C. 704, 710. (2) [1950] S. C. R. 869, 904.

1954 Bacha F. Guz:dar v. Commissioner of Income-tax, Bombay. Ghulam Hasan J.

1954 Bacha F. Gui:.dar v. Commissioner of Income-tax~ BomOtg. Ghulam Hll.fanJ.

The High Court expressed the view that until dividend is declared there is no right in shareholder to participate in the profits and according to them the declaration of dividend by the company is the effective source of the dividend which is subject to tax. This statement of the law we are unable to accept. Indeed the learned Attorney-General conceded that he was not prepared to subscribe to that propos1t1on. The declaration of dividend is certainly not the source of the profit. The right to participation in the profits exists independently of any declaration by the com-pany with the only difference that the enjoyment of profits is postponed until dividends are declared. It was argued that the position of shareholders in company is analogous to that of partners inter se. This analogy is wholly inaccurate. Partnership is merely an association of persons for carrying on the business of partnership and in law the firm name is compendious method of describing the partners. Such is, however, not the case of company which stands as separate juristic entity distinct from the shareholders. In Halsbury's Laws of England, Volume 6 (3rd Ed.), page 234, the law regarding the attributes of shares is thus stated : "A share is right to specified amount of the share capital of company carrying with it certain rights and liabilities while the company is going concern and in its winding up. The shares or other interest of any member in company are personal estate transferable in the manner provided by its articles, and are not of the nature of real estate." In Borland's Trustee v. Steel Brother/ & Co. Ltd. (1), Farwell J. held that "a share in company connot properly be likened to sum of money settled upon and subject to executory limitations to arise in the future; it is rather to be regarded as the interest of the shareholder in the company, measured, for the pur-poses of liability and dividend, by sum of money ......................... " It was suggested that the dividend arises out of the profits accruing from land and is impressed with the same character as the profits

(1) L. R. [1901] I Ch. 279.

Bacha F. Guzdar v. Commissioner of lnconu-tax, Bomhqy. Ghulam Hasan J.

1954 Bacha F. Guzdar v. Commissionn nf lncorru-tax, Bombqy. Chulam Hasan J.

and that it does not change its character merely because of the incident that it reaches the hands of the shareholder. This argument runs counter to the defini-tion of agricultural income which - emphasizes the necessity of the recipient of income having direct and an immediate rather than an indirect and remote relation with land. To accept this argument will be tantamount to saying that the creditor recovering interest on money debt due from the agriculturist who pays out of the produce of the land is equally entitled to the exemption. In fairness to Mr. Kolah it must, however, be stated that the contention was not so broadly put but there is no reason why one should stop at particular stage and not pursue the analogy to its logical limits.English decisions resting upon the peculiarities of the English Income-tax law can hardly be safe guide in determining upon the language of the Indian Income-tax Act the true meaning of the words 'agri-cultural income.' few cases of the Privy Council decided with reference to the provisions of the Indian Income-tax Act, howeyer, deserve notice_ The first -case, viz., Commissioner of Income-tax, Bihar and Orissfl v. Raja Bahadur Kamakshya Narayan Singh and Others( 1 ), dealt with the question whether interest on .arrears of rent payable. in respect of land used for agricultural purposes is agricultural income . and there-fore exempt from income-tax. It was held that it was neither rent nor revenue derived from land within tl1e meaning of section 2(1) of the Income-tax Act. Lord Uthwatt who delivered the judgment of the Privy Council used the following piquant language in coming to that conclusion : "The word 'derived' is not term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the _genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective ~ource is rent, which has suffered the accident of (1) [1948] 16 I. T. R. 325.

S.C.R. SUPREME COURT REPORTS

non-payment. And rent is not land within the meaning of the definition." The second case, viz., Premier Construction Co Ltd. v. Commissioner of Income-tax, Bombay City('), dealt with the nature of the commission of managing agent of the company part of whose income was agricultural income. The assessee claimed exemption from tax on the ground that his remuneration at 10 per cent. of the profits was calculated with reference to the income of the company part of which was agricultural income. It was held that the assessee received no agricultural income as defined by the Act but that he received remuneration under .a contract for personal service ·calculated on the amount of profits earned by the employer, payable n.ot in specie out of any item of such profits, but out of any moneys of the employer avail-able for the purpose, and that the remuneration there-fore was not agricultural income and was not exempt from tax. Sir John Beaumont in the above case ·observed :, "In their Lordships' view the principle to be derived from consideration of the terms of the Income-tax Act and the authorities referred to is that where an .asses see receives income, not itself of character to fall within the definition of agricultural income contained in the Act, such income does not assume the character of agricultural income by reason of the source from which it is derived, or the method by which it is -calculated." In the third case, viz., Maharajkumar Gopal Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa(2), an annual payment for life to the assessee was not held to be agricultural income and therefore not ·exempt from tax where the annuity arose out of transfer made by the assessee of portion of his estate for discharging his debts and for obtaining an adequate income for his life it being held that it was not rent or revenue derived from land but money paid under -contract imposing personal liability on the convenantor the discharge of which was secured by charge on (1) [1948] 16 I. T. R. 380 (2) [1935] 3 I. T. R. 237.

Bacha F. Guzdar v.

Commissioner of Income-tax, Bombay.

Ghu/am Hasan].

1954 .J!acha F. Gut:dar v. Commissioner of lnco~-tax, Bombqy. G!mlam H(JjarJ J.

Appeal dismissed.