COMMISSIONER OF INCOME TAX, MADRAS versus MESSRS. BEST & CO.

COMMISSIONER OF INCOME TAX, MADRAS v.

MESSRS. BEST & CO.

November 2, 1965

[K. SUBBA RAO, J. C. SHAH AND S. M. S!KRI, JJ.]

Income-tax Act (11 of 1922), s. 10-Assessee 11111/ti-agency con-cern-One of the agencies ter1ninated lVith restrictive covenant not to carry on business-Co111pensation, lvhether capital or. revenue receipt.

The respondent was multi-agency concern. The principal of one of the agencies tern1inated that agency and paid the respondent certain amounts. When the amounts were sought to be assessed to income·tax, the respondent objected on the ground that the amounts represented only compensation received for termination of the agency business and as consideration for the restrictive covenant not to do business in the same line for prescribed period. The Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal held against the res-pondent, but the High Court on reference, held that by the termination of the agency, the respondent lost an earning asset and that the compensa• tion paid for the destruction of such an asset was capital receipt not liable to tax.

In appeal to this Court,

HELD : While the income-tax authorities have to gather the relevant material to establish that the compensation given for the loss of the age:ncy was taxable income, an adverse inference could be dra\\'n against the assessec if he had not produced evidence which was in his exclusive knowledge and keeping. The respondent gave up one of its innumerable agencies in different lines without any protest presumably because it was in the normal course of ils business, and continued to do business without any mishap. It did not place any material before the Department to establish the relative importance of the said agency in the frame work of tho earning apparatus of its business. The loss of the agency would therefore only be normal trading loss, and the amount of compensation attributable to it would be revenue receipt assessable under s. 10 of the Income-tax Act, 1922. [486 H; 487 A, C; 488 B-C]

The restrictive covenant was one of the terms of the agreement re-lating to consideration, and therefore the compensation paid, \Vas not only in lieu of the giving up of the agency but also for the respondent accept-ing restrictive covenant for specific period. Since the covenant was an independent obligation which came into operation only after the agency was terminated and was wholly unconnected with it, that part of the compensation attributable to the restrictive covenant was capi-tal receipt not assessable to tax. [491 B, C, H; 492 Al

Gillandars Arbuthnot & Co. Ltd. v. Conunissioner of lnco1ne-tax, Calcutta, [1964] 8 S.C.R. 121 and Commissioner of Income-tax Madra.v v. Chari and Chari [1965] 3 S.C.R. 692, followed. '

The apportionment of the con1pcnsation has to be made on reason-able basis between the loss of the agency in the usual course of business ~nd the restrictive covenant by the assessing authority. The compensa-tion was severable and any difficulty in apportionment cannot be

g_round for rejecting the claim by the revenue and the assessee for appor-uonment. [492 B-D]

Wales (H. M. Inspector of Taxes) v. Tilley, (1942) 25 T.C. 136 Carter v. Wadman (H. M. Inspector of Taxes) (1946) 28 T.C. 41 and T. Sadasivam v. Commissioner of Income-tax, (1954) 28 I.T.R. 435, re-ferred to,

CIVIL APPELLATE JURISDICTION:, Civil Appeals Nos. 682 and 683 of 1964.

Appeals from the judgment and order dated July 24, 1961 of the Madras High Court in Case Referred No. 29 of 1957.

A. V. Viswanatha Sastri, R. Ganapathy Iyer, R. H. Dhebar and R. N. Sachthey, for the appellant.

K. N. Rajagopa/a Sastri, G. C. Sanghi, B. R. Narwa/a and H. K. Puri, for the respondent.

The Judgment of the Court was delivered by

Sobba Rao, J. Messrs. Best & Co., Ltd., Madras, the respon-dent herein, hereinafter called the ,Agency Company, is private limited company carrying on business in innumerable lines. It is doing the business of importers, exporters, agents and sub-agents of various shipping, insurance, and manufacturing com-panies, in the course of which it acquired numerous agencies from manufacturers both in India and outside for sale in India of textiles, dairy products, engineering equipments, soaps, paints, toilet goods, etc. One of such agencies was from the Imperial Chemical Industries (Exports) Limited, Glasgow, hereinafter called the "Principal", for distribution and marketing in certain territories in South India of its ammunition, blasting explosives and accessories. The said agency came into existence in 19.00. The terms of the agency were not reduced to writing. The rates of commission were paid on terms agreed upon from time to time. The agency was termina))Ie at will; but, because of their mutual confidence, it continued without break till the year 194 7 when the Principal decided to transfer all its agencies in India and Ceylon to Imperial Chemical Industries (India) Limited. By. hs letter dated March 11, 1947, the Principal gave notice to the Agency Company terminating its agency from April 1, 1948. After some correspondence, the agency was terminated on March 31, 1948, and the Principal paid certain amounts in three instal-H ments calculated on the basis of the income earned by the Impe-rial Chemical Industries (India) Limited, which took over the business from that date. Pursuant to that agreement, the Prin-LZSup.CT/66-1~

cipal paid on September 30, 1949, sum of Rs. 34,100 as commission on sales during the year ended March 31, 1949, on September 30,. 1950, commission Of Rs. 66,790 on sales during the year ended March 31, 1950, and on September 30, 1951, commission of Rs. 3,35,371 on sale5 during the year ended March 31, 1951. During the assessment year 1950-51, the first amollnt was brought to tax and the assessment had become final & and nothing turns upon it in these appeals. But in respect of the other two assessment years, namely, 1951-52 and 1952-53, the Agency Company objected to the inclusion of the said amounts in its taxable income on the ground that the said amounts represented only compensation received for . termination of the agency business and also as consideration for the restrictive co-C venant not to do business in the same line for prescribed period. The Income-tax Officoc, in the first instance, and, on appeals, the Appellate Assistant Commissioner held that the ter-mination of the said agency did not alter the structure of the respondent's business and that they represented only remuneration paid voluntarily by the Principal to the agent in appreciation of its past services. On further appeals by the· Agency Com-pany, the Income-tax Appellale Tribunal held that, as the three annual instalments were based on future sales in the same terri-E tory as before, they were of the same nature as the normal com-mission receipts of the respondent. On that ground, both the appeals were dismissed. At the instance of the assessee, the following question was referred by the Tribunal to the High Court of Judicature at Madras for its opinion under s. 66 (1) of the Indian Income-tax Act, 1922, hereinafter called the Act :

"Whether the aforesaid sum of Rs. 66,790 and Rs. 3,35,371 are assessable under Section 10 for the assessment years 1951-52 and 1952-53."

Division Bench of the said High Court, having regard to the circumstances of the case, came to the conclusion that by the termination of the agency the assessee lost an earning asset and the compensation paid for the destruction of such an asset was capital receipt and, therefore, not liable to tax. The Revenue, on obtaining the necessary certificate from the High Court, has preferred the present two appeals to ,this Court.

Mr. A. V. Viswanatha Sastri, learned counsel for the Reve-nue, coptended that the assessee had innumerable agencies, that it was normal incident in. the course of its business to give up agencies. and acquire new ones, that the termination of the agency in question was normal occurrence in the course of its

business, that it had no impact on the earning assets or the struc-ture of the business, that the alleged restrictive covenant was only an act of grace on the part of the agent in view of the long standing relationship between the parties and that it did not enter into the calculation of the compensation paid to the assessee. Jn short, his argument was that the said compensation only represented the taxable income of the assessee. Should the Court hold that the compensation was in part capital and in part revenue income, the argument proceeded, the said compen-sation would have to be apportionedi reasonably between the said parts.

Mr. Rajagopala Sastri, learned counsel for the assessee, advanced the argument that on true construction of the agree-ment disclosed by the correspondence it should be held that the amount received by the assessee was wholly as consideration for the restrictive covenant and, therefore, was of capital 'nature. Alternatively, he contended that even if the amount was wholly paid as compensation for the loss of the agency, it was capital receipt, as the assessee lost substantial source of income in relation to the totality of its business. On the assumpc tion that the payment partook of composite character, the learn-ed counsel would say that an apportionment should be made in proportion of the value to the assessee of the loss incurred under both the heads, namely, the loss of the agency and the restrictive covenant not to do business for specified period in the same field.

These. appeals raise the familiar question, namely, whether particular income arising from the termination of one of the agencies of multi-agency concern is capital receipt or .revenue receipt. The decisions on this question are legion. Eminent judges in India as well as in England expressed their inaoility to lay down precise principle of universal application,-bu.t were able to evolve some workable rules of guidance. The difficulty is inherent in the problem itself. This Court in recent decision has surveyed the entire field and, therefore, no useful purpose will be served to cover the ground over again. That case is Kettlewell Bullen & Co. Ltd. v. Commissioner of Income-tax, Calcutta('). There, this Court, speaking through Shah, J., expressed its conclusion thus :

"Where, on consideration of the circumstances, payment is made to compensate person for cancel-

(I) [1964] 8 S.C.R. 93

lation of contract which does not affect the trading structure of his business, nor deprive him of what in substance is his source of income, termination of the contract. being normal incident of the business, and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue : where by the cancellation of an agency the trading structure of the assessee is impaired, or such · cancellation results in loss of what may be regarded as the source of the assessee's income, the payment made to compensate for cancellation of the agency agree-ment is normally capital receipt."But the difficulty still remains in the application of the said principle to the facts of each case. In Gillanders Arbuthnot and Co. Ltd. v. Commissioner of Income-tax, Calcutta(') this Court applied the said rules to the facts of that case, which, by and large, are similar to the facts in the present case. It would, therefore, be useful to notice briefly the facts of that case. There, the appellant company carried on business in diverse lines : acting as managing agents, shipping agents, purchasing agents, and secretaries, the company also acted as importers and distributors oh behalf of foreign principals and bought and sold on its own account. Under an unwritten agreement which was terminable at will the appellant acted as sole agents and distributors of explo-sives manufactured by the Imperial Chemical Industries (Export) 1.-td. That agency was terminated and by way of compensation the Imperial Chemical Industries (Export) Ltd. paid for the first three years after the termination of the agency two-fifths of the commission accrued on its sales i!'1 the territory of the appellant's agency computed at the rates at which the appellant had formerly !been paid and in addition in the third year full commission for the sales effected in that year at the same rates. The Imperial 'Chemical Industries (Exports) Ltd. had intended to take formal undertaking from the appellant to refrain from selling or accept-ing any agency for explosives or other competitive commodities, but no such agreement in writing was taken or insisted upon. The question was whether the amounts received by the appellant for those three years were of the nature of capital or revenue. This Court held that the amounts paid were of the nature of income an.d, therefore, assessable to tax. The reason given for that con-dusion was that, having regard to the vast array of business done --·-----

(!) [1964] 8 S.C.R. 121

\ .....,,,_.

by the appellant as agents, the acquisition of agencies was in the normal course of business and determination of individual agen-cies normal incident not affecting or impairing its trading struc-ture. The material facts of that case are on all fours with the present case. Indeed, the Principal in both the cases was the same and the agency terminated was also similar one. The compensation given was worked out on the same lines. The only difference is that in that case it was not found that the restrictive covenant entered into the bargain.

This Court again reiterated the same principle in Commis-sioner of Income-tax, Madras v. Chari & Chari Ltd.('). But, on the facts of that case, it came to the conclusion that the com-pensation paid for the loss of agency was capital asset. There, Shah, J., speaking for the Court, said :

"In Kettlewell Bullen and Co.'s case(') this Court pointed out that ordinarily compensation for loss of office or agency is regarded as capital receipt, but the rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being necessary inci-dent of the business that existing agencies may be ter-minated, and fresh agencies may be taken, is revenue and not capital, Ke/sail Parson and Co.'s case(') falls within the exception to the ordinary rule, and cir-cumstances which brought the case of the respondent within the exception must be clearly established."As we have observed earlier, in view of the judgments of this Court, no further citation is called for. Whether the compen-sation received by an assessee for the loss of agency is capital receipt or revenue receipt depends upon the circumstances of each case. Before coming to conclusion one way or the other, many questions have to be asked and answered : what was the scope of the earning apparatus or structure, from physical, finan-cial, commercial and administrative standpoints ? If it was business of taking agencies, how many agencies it had, what was their nature and variety ? How were they acquired, how one or some of them were lost and what was the total income they were

(1) [1965] 3 S.GR. 692 (2) (1964] 8 S.C.R. 93

(3) [1938] 21 T.C. 608

yielding ? If one of them was given up, what was the average income of the agency lost ? What was its proportion in relation to the total income of the company ? What was the impact of giving it up on the structure of the entire business ? Did it amount to loss of enduring asset causing an unabsorbed shock dislocating the entire or part of the earning apparatus or struc-ture ? or was it loss due to an ordinary incident in the course of the business ? The answers to these questions would enable one to come to conclusion whether the loss of particular agency was incidental to the business or whether it amounted to loss of an enduring asset. If it was the former, the compensation paid would be revenue receipt; if it was the latter, it would be capital receipt. But these questions can only be answered satis-factorily if the relevant material is available to the income-tax authorities. The evidence of witnesses in charge of the business, the relevant accounts and balance sheets of the assessee before and after the loss, other evidence disclosing the previous history of the total business and the relative importance of the agency lost and the present position of the business after the loss of the said agency have to be scrutinized by the Department.

At this stage the question of burden of proof raised at the Bar may be noted. In Commissioner of Income-tax v. Chari & Chari Ltd.('), this Court observed :

" ........ it must in the first instance be observed

that it is for the revenue to establish that particular receipt is income liable to tax ................ ".

We may point out, as some argument was advanced on the ques-tion of burden of proof, that this Court did not lay down that the burden to establish that an income was taxable was on the Revenue was immutable in the sense that it never shifted to the assessee. The expression "in the first instance" clearly indicates that it did not say so. When sufficient evidence, either di,ect or circumstantial, in respect of its contention was disclosed by the Revenue, adverse .inference could be drawn against the assessee if he failed to put before the Department material which was in his exclusive possession. The· process is described in th~ law of evidence as shifting of the onus in the course of proceeding from one party to the other. There is no reason why ~ said doctrine is not applicable to income-tax proceedings. W'l!le the Income-tax authorities have to gather the relevant material to establish that the compensation given for the loss of agency was

C.I.T. v. BEST & co. (Subba Rao, 1.)

by the appellant as agents, the acquisition of agencies was in the normal course of business and determination of individual agen-cies normal incident not affecting or impairing its trading struc-ture. The material facts of that case are on all fours with the present case. Indeed, the Principal in both the cases was the same and the agency terminated was also similar one. The compensation given was worked out on the same lines. The only difference is that in that case it was not found that the restrictive covenant entered into the bargain.This Court again reiterated the same principle in Commis-sioner of Income-tax, Madras v. Chari & Chari Ltd.([1]). But, on the facts of that case, it came to the conclusion that the com-pensation paid for the loss of agency was capital asset. There, Shah, J., speaking for the Court, said :

"In Kettlewell Bullen and Co.'s case(') this Court pointed out that ordinarily compensation for loss of office or agency is regarded as capital receipt, but the rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being necessary inci-dent of the business that existing agencies may be ter-minated, and fresh agencies may be taken, is revenue and not capital, Ke/sail Parson and Co.'s case(") falls within the exception to the ordinary rule, and cir-cumstances which brought the case of the respondent within the exception must be clearly established."

As we have observed earlier, in view of the judgments of this Court, no further citation is called for. Whether the compen-sation received by an assessee for the loss of agency is capital receipt or revenue receipt depends upon the circumstances of each case. Before coming to conclusion one way or the other, many questions have to be asked and answered : what was the scope of the earning apparatus or structure, from physical, finan-cial, ~mmerc.ial and .administrative stand~oints ? If it was busm811J of takmg agencies, how many agencies it had, what was their nature and variety ? How were they acquired, how one or ll some of t em were Jost ~nd what was the total income they were (!} [1965] 3 S.C.R. 692 (2) [1964] 8 S.C.R. 93 (3) [1938] 21 T.C. 608

could have been brought out if only the average total commission earned by the assessee for reasonable period of time before the fransfer was disclosed. In the absence of such material it is not possible to arrive at any conclusion one way or the other, on the line of enquiry pursued by the High Court. What remains, there-fore, is only the fact that the assessee had innumerable agencies in different lines and that it only gave up one of them and con-tinued to do business without any apparent mishap. The corres-pondence between the parties shows that the assessee gave up the agency without any protest presumably because such termina-tion of agencies was part of the normal course of its business. We, therefore, hold on the facts of the present case that the loss of the said agency by the assessee was only normal trading loss and that the income it received was revenue receipt.

Mr. Rajagopala Sastri's next contention is that on fair read-ing of the correspondence that passed between the parties it should be held that the compensation given to the assessee was only in lieu of restrictive covenant and, therefore, it was capital receipt.

To appreciate this contention it is necessary to read the rele-vant correspondence. On March 11, 194 7, the Principal wrote letter to the assessee. As the argument mainly turned upon the contents of this letter, it is necessary to extract it in full. It reads:

IMPERIAL CHEMICAL INDUSTRIES (EXPORT) LIMITED

Explosives Branch, Nobel House, 25, Bothwell Street, Glasgow C-2. 11th March 1947.

Our Ref. : Export sales Section GKL/NR. Messrs. Best and Company Limited, P.O. Box 63, Madras, India.

Dear Sirs,

Agency arrangements.

We refer to the interview which Mr. J. W. Donal-

don lrnd with your Mr, Ruddle in May 1945, when it

was intimated that as matter of long term policy, our agencies in India and Ceylon would ultimately be taken over by Imperial Chemical Industries (India), Limited. It was indicated at that time that period of two to three years might elapse before any steps were taken as regards this transfer. We now have to advise you that the matter has been receiving further consideration, and Imperial Chemical Industries (India), Limited desire to take over the various agencies as from the first April 1948.

It is with regret, therefore, that we have to intimate our intention of transferring your agency, as from the above date, to Imperial Chemical Industries (India), Limited, and would take this opportunity of expressing to you our sincere appreciation of the valuable services you have rendered to us over period of many years.

As result of the transfer of your agency to Imperial Chemical Industries (India) Limited, we propose that compensation should be paid to you on the following basis:-

(1) For the first three post-transfer years, we shall pay you two-fifths of the commission accruing on annual sales in the territory of your Agency taken over by Imperial Chemical Industries (India) Limited, such commission to be computed at the commission rates for-mer! y paid to you.

(2) In the third post-transfer year we shall pay you, in addition, sum equivalent to the full commis-sion on sales for that year effected by Imperial Chemi-cal Industries (India) Limited in your territory, cal-culated at the same rates.

( 3) Payment will be made to you after the end of each year as soon as the amount is ascertained.

For the purposes of calculating the commission due to you, the post-transfer years will be deemed to run as from the date of the transfer of your agency to Impe-rial Chemical Industries (India) Limited. We trust that you will find these proposals acceptable.

As condition of our paying compensation on the basis outlined above, we would request you to be good enough to give us formal undertaking to refrain from

selling or accepting any agency for explosives or other commodities competitive with those covered by . the agency agreement now being terminated.

In this connection, we are asking our legal depart-ment to prepare formal agreement which we will submit to you for your signature as soon as possible.

Yours faithfully,

for Imperial Chemical Industries

(Export) Limited.

Mr. Rajagopala Sastri contended that for the past valuable ser-vices the Principal expressed only sincere appreciation and for the termination of the agency and thus putting an end to the assessee's future benefits it proposed to give the assessee compensation measured by the sales effected by the new agent. But his main argument is that whatever terminology was used, comm1ss10n or compensation, the amount agreed to be paid was wholly as com-pensation for the assessee agreeing to refrain from selling or accepting any agency for selling explosives. That conclusion was sought to be arrived at on the ground that the said restrictive covenant was condition for the payment of compensation. We find it difficult to accept this construction of the document. The scope of this document cannot be appreciated ignoring the cir-cumstances under which it came into existence. As we have stated earlier, the agency, which is the subject-matter of this agreement, was only one of many other agencies the assessee had.We cannot agree with the learned counsel th~t the compensa-tion was given wholly for the restrictive covenant. Indeed, the compensation was given expressly for giving up the agency. In the last paragraph of the letter request was made to the assessee to agree to restrictive covenant as condition for paying com-pensation. The letter dated April 8, 1947, written by the Prin-cipal to the Agency Company makes the position clear. Therein it was stated :

"With regard to the point you raise concernig the period during which you would undertake not to take any competitive agency, we would like you to under-stand that it was never our intention that vou should be tied down on this point for all time. We had felt that the limiting period should be one of five years and we are pleased to note from your letter that this appa-

C.I.T. v. BEST & co. (Subba Rao, !.)

rently is in accordance with your own ideas. It is sug-gested that the five years should date from the termina-tion of the agency, namely, 1st April, 1948."

The letter written by the assessee to the Principal is not on the file. But it is clear from this letter that the restrictive covenant was one of the terms of the agreement relating to consideration. It was part of the consideration that passed from the assessee for receiving the compensation. We cannot also agree with Mr. Viswanatha Sastri, who went to the other extreme and con-tended that the restrictive covenant was only an act of grace on the part of the Agent and that it did not enter into the bargain. We, therefore, hold that the compensation agreed to be paid was not only in lieu of the giving up of the agency but also for the assessee accepting restrictive covenant for specific period.

The next question is whether that part of the compensation attributable to the restrictive covenant is capital receipt or revenue receipt.

The House of Lords in Beak (H.M. Inspector of Taxes) v. Robson('), had to consider, whether compensation paid for restrictive covenant was capital receipt or revenue receipt. Under service agreement the respondent· therein covenanted in consideration of the payment to him of £ 7,000 on the execution of the agreement, that if the agreement were determined by notice given by him or by his breach of its provisions he would not compete directly or indirectly with the company within radius of fifty miles of its place of business until the five years had expired. The House of Lords held that the said amount was payment for giving up right wholly unconnected with his office and operative only after he ceased to hold that office and, there-fore, it was not taxable under Schedule of the Income-tax Acts.

This Court in Gil/anders Arbuthnot and Co. Ltd. v. Commis-sioner of Income-tax, Calcutta(') accepted the said principle and held that the compensation paid for agreeing to refrain from carry-G ing on competitive business in the commodities in respect of the agency terminated or for loss of goodwil! was prima facie of the nature of capital receipt.

Jn the present case, the covenant was an independent obliga-tion undertaken by the assessee not to compete with the new agents in the same field for specified period. It came into opera· tion only after the agency was terminated. It was wholly un-(1) (1942] 25 T.C. 33. (2) (1964] 8 S.C.R. 121

connected with the assessee's agency terminated. We, therefore, hold that that part of the compensation attributable to the restric-tive covenant was capital receipt and hence not assessable to tax.

The next question is whether the compensation paid is sever-able. If the compensation paid was in respect of two distinct matters, one taking the character of capital receipt and the other of revenue receipt, we do not see any principle which prevents the apportionment of the income between the two matters. The difficulty in apportionment cannot be ground for rejecting the claim either of the Revenne or of the assessee. Such an apportionment was sanctioned by courts in Wales (H.M. Ins-pector of Taxes v. Tilley('), Carter v. Wadman (H.M. Inspec-tor of Taxes('), and T. Sadasivam v. Commissioner of Income-tax, Madras('). In the present case apportionment of the compensa-tion has to be made on reasonable basis between the loss of the agency in the usual course of business and the restrictive cove-nant. The manner of such apportionment has perforce to be left to the assessing authorities.

The answer to the question referred to the High Court is that only such part of the sums of Rs. 66,790 and Rs. 3,35,371 as is attributable to the loss of the agency is assessable under s. 10 of the Act for the assessment years 1951-52 and 1952-53. We accordingly modify the answer given by the High Court in that regard.

In the result, the appeals are partly allowed. As both the parties failed in part and succeeded in part, they will bear their respective costs here and in the High Court.

Appeals allowed in part.

(2) [1946] 28 T.C. 41