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TMI Blog1965 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Business Profits Tax, Act, 1947. (2) Whether on facts and in the circumstances of the case the Tribunal was right in holding that the fact that the amount in question had been built up out of capital and not out of taxed profits would not prevent it from being reserve as contemplated by Sub- Rule (1) of Rule 2 of the Schedule 11 of the Business Profits Tax Act. (3) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of $29,000,000 odd, $43,000,000 odd, $56,000,000 odd and 73,000,000 & odd for the respective years appearing in the Balance Sheets of the assessee as, "Earned Surplus" would be treated as a reserve within the meaning of Sub-Rule (1) of Rule 2 of the Schedule 11 of the Business Profits Tax Act." The High Court recorded answers in the affirmative on all the questions. The Commissioner of Income-tax has appealed to this Court with special leave., The assessee Company is a non-resident. It was incorporated in the State of Delaware in the United States of America with the object of taking over the assets of two companies- Socony Vacuum Oil Company and Standard Oil Company (New Jersey). The capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;Earned Surplus" was reserve liable to be taken into account in assessing business profits tax. In a reference under S. 19 of the Business Profits Tax Act, the High Court agreed with the view of the Tribunal on the three questions referred for its opinion. The provisions of the Business Profits Tax Act, 1947, which have a bearing on the questions raised in the reference to the High Court may first be summarised By s. 4 of the Act in respect of any business to which the Act applies, business profits tax is charged, levied and paid on the taxable profits during any accounting period at the rates specified in the Act. The expression "Taxable profits" is defined in s. 2(17) as the amount by which the profits during a chargeable accounting period exceed the abatement in respect of that period. "Abatement" is defined in s. 2(1) (insofar as it is material) as meaning, in respect of any chargeable accounting period ending on or before the 31 st day of. March, 1947 a sum which bears to a sum equal to (a) in the case of a company, not being a company deemed for the purposes of s. 9 to be a firm, six per cent of the capital of the company on the first day of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate shareholders and there was no need for a larger number of shares to be issued and outstanding." In "Cases and Materials on Corporations" by Dodd and Baker, 2nd Edn., at p. 1118 under the head "Sources of Capital Surplus" the authors have stated "Credits to an account that is still generally called Paid-in Surplus arise in a number of circumstances which include: (a) where shares having a par value including the very low par value that has recently come into use, are issued and sold for cash or non-cash consideration in an amount in excess of part......... The occasion for the issue may be an initial or subsequent acquisition of property. Such a property acquisition may be the purchase of all or substantially all assets of another corporation as a going concern, or a merger by which such another corporation is absorbed by the surviving corporation, or a consolidation by which two or more corporations are absorbed by a new corporation created in the consolidation proceedings. Upon such a purchase of assets or in a merger or consolidation, the defensible value of the assets of the vendor or of the absorbed corporation or corporations may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutes of Michigan, the item of "Paid In-Surplus" must be carried on the balance sheet as a separate item from "Earned Surplus" or "Undivided Profits," and such is the policy of many accountants in the absence of any statutory provision." Therefore stock is issued in consideration of transfer of assets, the par value of stock is not necessarily equal to the value of assets transferred. Where the value of assets transferred exceeds the par value, the difference may appropriately be regarded as "premium" according to the nomenclature used in India. Under the Companies Act, 1913, shares could be issued for cash or against transfer of property, and it is not claimed that under the statute law in the State of Delaware a different rule prevailed at the time when the assessee company took over the assets of the transferor companies. The Indian Companies Act also places no restriction upon a company issuing shares for a consideration which exceeds the par value of the shares, and there is no evidence on the record that in the State of Delaware there is such a restriction. A share is not a sum of money : it represents an interest measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by that company and the assets transferred by the Socony Vacuum Oil Company. Under the Companies Act, 1913, shares of a class already issued could be issued by a company at a discount, subject only to the conditions prescribed by s. 105A. But the Act made no provision relating to the issue of shares at a premium. The matter was one governed by contract between the company and the intending acquirer of shares. In the Companies Act 1 of 1956, certain restrictions are imposed upon the application of premiums received on issue of shares by s. 78. Shares could therefore be issued at a premium under the Act of 1913 and that appears to be recognised by the terms of s. 78(3) of the Companies Act of 1956. It was found by the Tribunal that the amount entered in the balance sheet as "Capital paid in Surplus" was retained in the business of the assessee company, and the correctness of that view was not challenged before the High Court. The only argument advanced before the High Court on this part of the case was that shares could be said to be issued at a premium only when they were issued for cash in excess of the par value and not otherwise. But shares may be issued subject to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad in the balance sheet at the end of the year of account of a company may be treated as "reserves" for the purpose of r. 2 of Sch. II of the Business Profits Tax Act, but (1) 20 I.T.R. 260. 3 77 the judgment of the Bombay High Court was reversed by this Court: video, Commissioner of Income-tax,, Bombay City v. Century Spg. & Mfg. Co. Ltd.(-'). The profits of the company had been subjected to tax, and the, question whether an account which is built up otherwise than out of profits of the business could be regarded as reserves for the purpose of r. 2 did not fall to be decided in that case. Under r. 2(1) reserves which insofar as they have not been allowed in computing the profits of the Company enter into the computation of capital for the purpose of r. 2(1). This Court observed In Century Spinning & Manufacturing Company's case(1) :- "Two essential characteristics must be present before the assessee can avail himself of the benefit of the rule, namely, that the amount should not have been allowed in computing the profits of the company for the purposes of Income-tax Act and that it should be a reserve as contemplated by the rule." Rule 2 does not exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The next question is whether "Earned Surplus" may be treated as "reserves" within the meaning of sub-r. (1) of r. 2 of Sch. 11. It is found by the Tribunal that the profits earned year after year by the assessee company were retained and reinvested in its business. "Earned Surplus" has, it is true, not been called "reserve", but if it is truly a reserve, it must be taken into account in the computation of capital. In considering this question, it is necessary to note certain special features of the system of accounting obtaining in the United States of America. In the balance sheet% of companies the assets are balanced against liabilities, capital stock and surplus. In the company accounts it is usual to provide for specific or special reserves, but there is no allocation to a head called "General reserve" in the accounts. It is also well settled that the accounts of companies maintained under the American system are self-contained for each year. Under the system of accounting in vogue in India, after allocations are made to various purposes such as outgoing, expenses and reserves, specific and general the balance is generally ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Such a fund may be regarded according to the Indian practice as "general reserves". The Appellate Tribunal held that the "Earned Surplus" in the balance sheets of the assessee company represented "reserves" within the meaning of r. 2 Sch. 11 of the Business Profits Tax Act. The High Court agreed with that view. But counsel for the Revenue contended that accumulated profits could only be deemed reserves for the purpose of the Business Profits Tax Act, if they are specifically allocated to reserves and not otherwise and in support of that contention, he relied upon the decision of this Court in the Century Spinning & Manufacturing Company Ltd.(1) Counsel pointed out that in that case this Court reversed the decision of the High Court of Bombay in which accumulated profits were regarded as reserves for the purpose of the Business Profits Tax Act. It is necessary carefully to scrutinise the facts in the Century Spg. & Mfg. Company's case [1954] S.C.R. 203. For the account year ending December 31, 1945, the profit of the assessee company, amounted to ₹ 90,44,677/-. After providing for depreciation and taxation there remained an unallocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " It was pointed out that under the Indian Companies Act, 1913, the directors are enjoined to attach to every balance sheet a report with respect to the state of the company's affairs and the amount, if any, which they recommend to be paid by way of dividend and the amount, if any, which they propose to carry to the reserve fund, general reserve or reserve account. It was also pointed out that S. 132 of the Indian Companies Act refers to the contents of the balance sheet to be drawn up in the Form marked 'F' in Sch. HI, and to Regulation 99 of the 1st Sch. Table A, and observed that any sum out of the profits which is to be carried into a reserve must be set aside before the directors recommend any dividend. The Court observed: "In this case the directors while recommending dividend took no action to set aside any portion of this sum as a reserve or reserves. Indeed they never applied their mind to this aspect of the matter. The balance sheet drawn up by the assessee as showing the profits was prepared in accordance with the provisions of the Indian Companies Act. These provisions also support the conclusion as to what is the true nature of a reserve shown i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 961] 3 S.C.R. 371., this Court held that the undivided profits brought into account of the assessee Bank under the head "Assets, capital, capital stock and reserves" were reserves within the meaning of r. 2(1) of Sch. II of the Business Profits Tax Act. In that case the Court was dealing with a case of a banking institution, and a letter from the Deputy Controller of Currency, Washington, was tendered in evidence which explained that in the United States the "Undivided Profits" as reflected in the accounting of a bank actually represent a part of its capital funds, and that the term "Undivided Profits" simply followed a bank accounting nomenclature used to designate profits set aside after provisions for expenses and taxes, dividends and reserves, for continuous future use in the business of the Bank. In the case before us we have no such evidence on the record about the nature of the "Earned Surplus" account, but the manner in Which the balance sheets year after year are maintained, and the general accountancy practice prevailing in the United States, suggest that there is specific allocation of the balance of profits ,at the end of each ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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