the Commissioner of Income-Tax, Madras v. M. V. Murugappan & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 566 of 1967. Appeal from the judgment and order dated November 18, 1965 of the Madras High Court in Tax Case No. 162 of 1963. Jagadish Swarup, Solicitor-General, G. C. Sharma and B. D. Sharma, for the appellant. K. Srinivasan and R. Gopa/akrishnan, for respondents Nos. I to 10. The Judgment ·of the Court was delivered by Shah, J. The Income-tax Appellate Tribunal submitted the following question under s. 66(1) of the Indian Income-tax Act, 1922, to the High Court of Madras for opinion : . "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the sum of Rs. 81,611 and Rs. 1,49,444 were not the part of the accumulated profits of the Company as on December 3 I, 1954 as contemplated under s. 2(GAJ(c) of the Income-tax Act of 1922 ?'" The High Court answered the question in the affirmative.

The Commissjoner of Income-tax asked for and obtained a certificate fron1 the High Court only in respect of the amount of Rs. 81,611. This appeul is therefore restricted to the claim of the Revenue that the amount of Rs. 81,611 was not part of the "accumulated profit!> of the Company as 011 October 31, 1954 as contemplated by s. 2t6A)lcJ of the Income-tax Act, 1922." Ajax Products Ltd. was a pub!ic limited company incorporated in 1939. It maintained its accounts accor!iing to the calendar year. The respondents to this appeal were shareholders of the Company. The Company "went into liquidation on October 31, 1954". The liquidators of the Company distributed on March 10, 1955 to the shareholders for each share Rs. 100 by allotment of a share in Carbornndum Universal Ltd. of the sam~ face value. Between January l, 1954 and October 31, 1954 the Company earned a profit of Rs. 1,79,704. On the profit of Rs. 1, 79, 704 the Company was assessed to pay Rs. 98,09J as tax, leaving a balarke of Rs. 81,611 which formed part of the amount distributed.

The Income-tax Officer brought the value of the share received by the shareholders to tax, on the footing that it represented "accumulated profits": In appeal the Appellate Assistant Commisioner held that under relaw as it then stood, the amount of Rs. 81,611 was not accumulated profits and when distrib11':;.l it was capital in the hands of the shareholders. This order w~confi.rmed by the Tribunal. The High Court agreed with the.~Yiew of the Tribunal that under the definition of the expression "dividend" in s. 2 ( 6A )( c) in force in the year of assessment 1955-56 distribution of the current profits in the year in which the Company was ordered to be wound up was not dividend and was on that account not liable to be taxed ;is dividend. I C.I.T. V. MURUGAPPAN (Shah, J.) Under the Indian Companies Act, 1913, no dividend could be paid otherwise· than out cf profits of the year or undistributed profits of previous years.

A Company as a going concern may distribute by way of dividend to the shareholders profits of the year or accumulated profits of the previous years. But a share in the assets of the Company distributed i;n the course of winding up is of the nature of capital and not of dividend, and it cannot be apportioned into capital and accumulated profits. In Birch v. Crcpper ( 1 ), Lord Macnaghten observed : "I think it rather leads to confusion to speak of the assets which are the subject of this application as 'surplus as!~ts' as if they were an accretion or addition to the capita\ of the company caP.able of being distinguished from it and open to different considerations. They are part and parcel of the property of the . company-part and parcel of the jomt stock or common fund-which at the date of the winding up represented the capital of the company." This view was affirmed .in a later J"udgment in Commissioner of Inland Revenue v. George Burrel ,( 2) where Pollock, M. R. observed : " .....

It is a misapprehension, after the liquidator has assumed his duties to continue the distinction bet· ween surplus profits and capital." This decisfo.n was receritly affirmed by the House of Lords in Staffordshire Coal and Iron Co. Ltd. v. Brogan (Inspector of Taxes)('). The House of Lords held that there was no ground for making an exception to the general rule that the surplus assets of a company, after providing for all liabilities. were divisible among its members as capital. Accordingly, the receipt by a constituent company of its appropriate proportions of the distributed surplus wa~ a receipt of a capital nature. Lord Evershed observed at p. 565 : "It cannot now be in doubt that surplus assets in the .hands of the liquidator of a limited liability companywhether limited by share capital or by guarantee-are in his ;iands capital. Such a conclusion was laid down 1:-v the Court of Appeal in Inland Revenue Commissioners v. Burref-(1924)2 K.B. 52 (see e~pecialy per Atkin L.J. ), and it has never since been questioned."

(I) (1889) L.R. 14 A.C. 525. (1) 54 J.T.R. 555. (2) <1924) 2 J<.P. 52. 'UP!>EME COURT REPORTS (1971] l S.C.R. 1'h~ Indian Income-tax Act, 1922, when originally enacted. c0ntaiued no definition of "dividend" : the expression '·dividend .. h:id therefore the same meaning as it had in the Indian Companies f\Cl, 1913, and the amount distributed among the shareholders 1'v the liauidator out of the assets of the company after m~eting the Jiaoilities was regarded as a capital receipt \n the haP.·.ls of ~le >l:areholders. In 1939 the Indian Legislature incorp<" ated , : . 2 of rhe Indian Income-tax (Amendment) Act 7 of 1 'l39, an incl11Sive deMition of the express "dividend". Clau>e I cJ cf tha! definition read : "any distribution made to th;, shareholders of a ~om­ pa·ny out of accumulated profits of the company on the liquidation of the company :

Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included;" But the profits of the year in the course of which the Company was ordered to be wound up not being accumulated profits \Vere not part of the dividend : Appavu Chettiar v. Commissioner of Income-tax, Madras;(') Girdhardas & Company Ltd. v. Comrni~­ sioner of Income-tax, Ahmedabad;( 2) and also the observations of this Court in First Income-tax Officer, Salem x. Short Brothus (P) Ltd. (6 ) at pp. 88 & 89. Clause (c) to s. 2(6A) was amended by the Finance Act of 1955 and the proviso :o cl. ( c) was deleted. The only eftecl of deleting the proviso was to remove the limitation providing that distribution of profits of the six previous years preceding the date of liquidation only was dividend. By the Finance Act of 1956, cl. (c) was replaced by the following clause :

"any distribution made to the shareholders of a company on its liquidation, rci the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not;" This amendment came into operation as from April !, 1956 We are in this case concerned with the distribution of Rs. 1.00 by allotment of a share in the Carborundum Universal Ltd. made (I) 29 l.T.R. 768. (3) 60 l.T.R. 83 (21 31 IT. R. 81. C.I.T. V, MuRUGAPPAN (Shah, ·J.) on March 10, 1955. The questior. whether the distribution was dividend had to be det~nnined in the light of the Income-tax Act as amend~d by the Finance Ac.t of 1956. The amount 0( Rs. 81,611 distributed by the liquidator on March 10, 1955, represented tiy the curreut profits aud not profits eamed before J anuary l, 1954.

The amount distributed as dividend out of the current profits could not, in the state of the law in force in the yeJr •Jf a;se~sment 1955-56, be deemed dividend in the hands of tl:e 'hareholders. The appeal thet eforc falls and is d1smi,,ed with costs. RK.P.S. Appeul dismis~ed .