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TMI Blog1938 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... rmative and to part (b) in the negative, was the Assistant Commissioner justified in holding that the item must be deemed to have been paid to the assessee on the day he deposited the sum of ₹ 26,000 representing the difference between the poundage and the commission? The matter came before a Bench on January 15,1937. la view of a decision of another Bench of this Court, In re Gay a Prasad and Chotey Lal [1935] 4 ITR 177, the case has been referred to a larger Bench for consideration and decision. The facts of the case which are set out in detail in the Reference may be briefly recapitulated. In 1920 a limited company- the Agra United Mills, Ltd.--purchased from Messrs. A. John & Co. three spinning mills and one flour mill, the purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of 1¼ per cent, instead of 6¼ per cent. He prayed that the remaining 5 per cent, be treated as auctioneer's commission. To this the Court agreed. Five per cent, amounted to ₹ 1,04,000. Accordingly, under rule 15 of the General Rules, the assessee Major A.U. John, paid into Court on March 9,1932, ₹ 26,000 for poundage and ₹ 20,800 for the sale certificate. The Income-tax Officer claimed to assess Major A.U. John to income-tax for the year 1931-32 in respect of the 5 per cent, auctioneer's commission above referred to. Whether or not the assessee is liable to assessment in respect of this sum depends upon whether the sum can be regarded as income within the meaning of the Indian Income-tax Act. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own for the guidance of the Courts in India some general principle on the question as to what can be treated as income under the Act. The terms of that part of their Lordships judgment above quoted are undoubtedly general and, in our opinion, were not intended by their Lordships to be confined to the particular facts and circumstances of the case which their Lordships were considering. It appears to us that their Lordships intended to indicate that the element of periodical receipt, regularity or expected regularity of monetary return was an essential ingredient of 'income' under the Indian Income-Tax Act. Their Lordships later in their judgment observe : "The claim of the taxing authorities is that the sum in question is cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. We are confirmed in this view by the fact that in a subsequent case Maharaj Kumar Gopal Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa [1935] 8 ITC 340, in which the circumstances were entirely different the Board approved of the principle laid down in the case of Shaw Wallace & Co' s case (supra) . By Section 4(3)(vii) the Act shall not apply to "any receipts not being receipts arising from business or the exercise of a profession, vocation or occupation, which are of a casual and non-recurring nature, or are not by way of addition to the remuneration of an employee". In our opinion, it cannot be maintained that the auctioneer's commission in the present instance was a receipt arising from business ..... X X X X Extracts X X X X X X X X Extracts X X X X
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