Sassoon J. Davld & Co. (P) Ltd., Bombay v. C.L.T., Bombay

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2501 of 1972. From the Judgment and Order dated 5-2-1970 of the Bombay High Coul"t in Income Tax Reference No. 58/73 .. AND CIVIL APPEAL NOS. 2502-2504 OF 1972 From the Judgment and Order dated 25thj26th Feb. 1971 of the Bombay High Court in Income Tax Ref. No. 87 f63. V. S. Desai, Dinesh Vyas, K. 1. John and Sree Narain for the Appellants in all the appeals. HardyaJ Hardy, Champat Rai, B. B. Tawekley and Miss A Su,hashini for the Respondent in all the appeals. The Judgment of the Court was delivered by VENKATARAMIAH, J.-Since these appeals by certificate involve a common question of law, we find it convenient to dispose them of by this common judgment. SASOON J, DAVID V. C.I.T. (Venkataramiah, J.) · · .. Civil Appeal No. 2501 of 1972 is filed against the Judgment of the High Court of Bombay in Income Tax Reference No. 58 of 1963 and Civil Appeals Nos. 2502-2504 of 1972 are filed against the judgment of that High Court in Income Tax Reference No. 87 of 1965.

The assessee, M/s Sasoon J. David & Co. Pvt. Ltd. (hereinafter referred to as 'the Company') is the appellant in all these cases and the assessment yean ~e 1957-58, 1958-59, 1959>·60 .and 1960-61, the relevant calendar years being 1956, 1957, 1958 and 1959 respectively . The Company is an investment company and its shares were origi- '1" nally heJd either directly or through their nominees by Sir Percival David, Lady David and Mr. V. P. David (hereinafter collectively referred to as 'Davids') . The issued capital of the Company consisted of 1000 ordinary shares of the face value of Rs. 10,000/- each. According to the valuation made by the auditors, the assets of the Company were worth Rs. 155 lacs as on December 31, 1955.

At a meeting of the directors of the Company held on December 2, 1955, a resolution was passed recommending that the employees of the Company whose nameS were ret out in the statement attached thereto be paid certain sums or annuity as set out against the names of each of them as and by way of retrenchment compensation and compensation for termination of employment and also for long and faithful services rendered by them to the Company in the past and that their services might be terminated. It was. ·also resolved to call an extra-ordinary general meeting of the shareholders of the Company to consider and if thought fit to approve the recommendation made by the directors as stated above. Accordingly an extra ordinary general meeting of the shareholders of the Company wa$ held on January 17, 1956 but it was adjourned to January 25,1956.

On the adjourned date, the meeting passed a resolution approving the · reccmunendation made by the directors to pay the employees retrench.; ment COmpensation and compensa-tion for termination of employment and alro additional retrenchment compensation and compensation for termination of employment in the case of some of them and to terminate their services on or after April 1, 1956. Thereafter an agreement was entered into between Davids and Tata Sons Ltd. (hereinafter referred to as 'the Tatas') on March 23, 1956 agreeing to sell the 1000 shares held by Davids or their nominees in the Company in favour of Tatas or their nominees for a sum of Rs. 155 lacs. The said agreement inter alia provided that the sum voted by the Company for payment of gratuities and/ or as compensation for loss of employment to existing directors and employees of th~ Company with respect to their services upto and inclusive of March 31, 1956 and a further amount of I t [1979] 3 S.C.lt.. R~ .

16,188/- payable to the Managing Director, Mr. Mathalone lhould' be paid in accordance with the resolution by the Company and tke· amount so paid should be deducted from the purchase price of Rs. 155 lacs agreed upon. It also provided that Davids should arrange to terminate the services of all employees with effect from March 31, 1956 and also to arrange that all directors (including the Managing Director) resign their offices and Tatas or their nominees should thereafter be entitled to appoint or elect all or any of the members of the staff and directors (including existing directors and members of the staff) of the Company as they deemed fit. Of the 22 employees covered by the resolution of the directors dated' December 2, 1955 followed by the confirmation at the extra-ordinary general meeting of January 25, 1956, 9 were re-employed and 13 persons. were not re-employed. In the books of the assessee, there was a debit for a total sum· of Rs. 1,64,899/- during the accounting year 1956, the details for which were as follows :- Amount payable to the 22 employees as per resolution dated 2-12--1955 and 25-1-1956 R 1,01.,626{- Amount described as "additional retrenchment compensation and compensation for termination of employment and also forlongandfaithfulservices", as per resolution No. 2dated 25-1-1956 Rs. 6.000/· Compensation for termination of pension allowance Rs. 21,200 .

Annuity ofShri A. E. Joseph, former Director as per resolutions dated 2·12-1955 and 25-1-1956 . Rs . 16,885/- Amount described as "compensation for loss of office. Managing Director Mr. R. Mathalone." Rs. 16,1&8/- Total: Rs. 1,64,899/- It should be mentioned here that A.E. J dseph, the former Director· of the Company had to be paid as per the resolution of the Company Rs. 16,885/- by way of annuity during a period of five years commencing with 1956. During the assessment year 1957-58, the relevant previo~ year being 1956, the Company claimed deduction of Rs. 1,64,899/- referred to above before th~ Income-tax Officer under section 10d2)(xv) of the· SASOON J. DAVID v. C.l.T. (Venka'tatamiah, J.) 883' 1ndian Income-tax Act" 1922 (hereinafter referred to as 'the Act').· During each of the three succeeding assessment year's with which we are concerned, the Company claimed deduction of Rs. 16,885/- being the annuity p~id to Mr. A. E. Joseph pursuant to the resolution.

During the assessment year 1957-58, the claim in respect of the entite sum of Rs. 1,64,899/- was disallowed-by the Income-tax Officer on the ground that the ·services of the directors and employees had been tenninated not because of business expediency but because Tatas, the purchasers of the shares made it a condition under the agreement. The relevant part of the order read as follows :- "Thus, it emerges that tlJ.~ expenditure of the type of gratuity would be allowable u/ s 10(2) (xv) only if the persons retiring had such expectancy or ·they accepted lower salaries in such expectation and h~nce it was an incentive to existing employees of future employees. As against that we find that here even before the Tatas took up the management of the company, services of the employe~ and directors were terminated and the amount of compensation fixed.

The fact that there was no expectancy or custom of such gratuity with the company is clearly borne out by the fact that tnany of the employees whose services arc. terminated had put in a number of years of service in some case6 even going upto 40 years. As against this the assessee has been pleading that most of the employees were very old and tha:t as a result of change of staff the Company was able to effect considerable economy. However, I understand that some of the old employees were reinstated and as stated the whole transaction was a part of the overall transaction of purchase of shares and passing over of control. The manner in which the services of all the employees tinder the old management were terminated is also significant. Thus I am unable to see how this expenditure can fall u/s. 10(2) (xv).

I am unable to find any distincti~n ret.ween compensation paid to employees and .those pmd to drrectors and also any distinction between ou~1ght compensation paid to a director and annuity paid to a drrector. None of the expenses are allowable and I add the whole amount claimed by way of gratuity, compensation for loss of empl.oyment and annuity or compensation for loss of office to a dtrector or former director." . Aggrieved by the decision of the Income-tax Officer, the Company filed an appeal before the Appellate Assistant Commissioner of I Income·tax. The Appellate Assistant Commissioner after taking into account the records before the Income·tax Officer and the statement filed by the Company refore him found that the Income-tax Officer was right in disallowing the claim even though he was of opinion that the Company had by the termination of services of the directors and the employees by payment of gratuity and/or comp:!nsation been bene· fited.

The relevant part of his order was as follows:- 'The o'nly contention remaining to be considered is that the Income-tax Officer was wrong in disallowing a sum of Rs. 1 ,64,899 I- paid to certain employees and directors aa compensation for termination of services. The circumstances leading to the payment of this compensation have ~en narrated in detail in the order of the Income-tax Officer. It is strongly urged that the termination of the services of the persons concerned was of great benefit to the Company even considering the payment of the comp~nsation since the establishment expehses were very substantially reduced as a result. From the information furnished to me, this statemr~nt is no doubt quite justified. However, it is seen that the termination of the services and the payment of compensation were not done wholly with a view to the business requirements of the company, but w~rc bound up with the cha'nging of hands of the shares of the company.

According to the agreement for the sale of all the shares of the company the selb-s had to arrange to terminate the services of all the employees and also arrange that all directors resigned their offices. It is expressly stated that this requirement was to enable the purchasers to appoint or elect all members of the staff and directors. As a matter of fact some of the persons to whom compensation had been paid for termination of service5 were immediarely re-employed by the Company. The decision to pay compensation cannot in the circumstances be said to have been taken solely with a view to the business requirement of the company though incidentally the company might have been benefited by it. In view of what has reen stated above. I feel that the Income-tax Officer was justified in his action. The appellant has referred to the Bombay High Court decision in the case of F.E. Dinishaw Ltd., but the facts in the present case are not identical with those of the case mentioned."

On further appeal to the Tribunal by the Company, the Tribunal affirmed the order of the Appellate Assistant Commissioner ho1di'ng r 41 SASOON J. DAVID v. C.l.T. (Venkataramiah, J.) 8'85 t·hat .the inference drawn by the Income~tax Officer that the payments in question were motivated by the reorganisation of share-holding had not been chaUenged by the Company; that the reference made to the said payments in the agreement of .sale of shares led to such an inference and that the expenditure had not been incurred for the purpose of the Company but purely as a result of the bargain between Davids and Tatas. It was further held by the Tribunai that even assuming that the paym~nts were beneficial to the Company, no deduction could be allowed since they had been made to benefit third parties. Accordingly the Tribunal dismissed the appe.al. An application made under section 66(1) of the Act before the Tribunal was rejected.

Thereafter the Company filed an application before the High Court of Bombay under section 66(2) of the Act and the High Court directed the Tribunal to state a case and to refer the following questions of law for its opinion:- " ( 1) Whether the Tribunal erred in law disallowing the amount of Rs. 1,64,8991- as a deduction under section 10 of the Indian Income-tax Act, 1922 ? (2) Whether there was any evidence to justify the Tribunal's finding that the payment of Rs. 1,64,899/- or any part thereof was made in view of and in order to effectuate the agreement entered into between the old shareholders and the new shareholders and that the payment had no commercial purpose behind it ? (3) Whether in any event the sum of Rs. 16,188/~ paid to the Managing Director by way of pay in lieu of six Jl' months' notice was all.owable as a deduction under section 10 of the Indian Income-tax Act, 1922 ?" Accordingly, the Tribunal drew up a statement of the case and referred the abov·~ questions.

Later on the Tribunal referred tinder section 66 (1) the following question of law arising out of the orders of assessment for the assessment years 1958-59, 1959-60 and 1960- 61 in respect of the annuity paid to Mr. A. E. Joseph:- "Whethe~ in computing the assessee's business income of the accounting years 1957, 1958 and 1959, relevant for the assessment ~ars 1958-59, 1959~60 and 1960~61, the sum of Rs. 16,885/- is an admissible deduction under section 10{2) (xv) of the Act? , It is n9t n.e.cessary to refer to the other matters involved in the orders of assessment of the years 1958-59, 1959-60 and 1960-61 and to the various stages of the cases until they reached the High Court. Income-tax Reference No. 58 of 1963 arising out of the assessment proceeding~S of the year 1957-58 was heard by a Division Bench of the High Court of Bombay and decided on February 5, 1970. The High Court found that out of Rs. 1,64,899/- referred to in question No.1 only a sum of Rs. 21,200/- which was commutation of liability for payment of pension to some retired employees and/or widows of such employees and a sum of Rs. 16,188/- paid to Mr. Mathalone, Managing Director in lieu of six months notice that had ·to be given prior to termination of his service were allowable as deductions and that the Company was not entitled to claim deduction of the remaining sum of Rs. 1,27,511/-.

It according)y answered question No.1 in the negative in so far as the sum of Rs. 1,27,511/- (excluding two items of Rs. 21,000/- and Rs. 16,188/-) was concerned, question No. 2 in the affinnative in so far as the amount aggregating to Rs. 1,27,511/- (excluding the two items of Rs. 21,200/- and Rs. 16,188/-) was concerned and question No. 3 in the affirmative. The High Court was of the view that the expenditure of the sums amounting to Rs. 1,27,511/- paid to the employees and a director of the Company by way of retrenchment compensation or compensation for termination of service had not been incurred by the Company for commercial expediency and/or considerations. It accord1ngly disallowed the claim made by the Company to the extent indicated above.

The Income-tax Reference case arising from the assessme'nt orders relating to assessment years 1958-59, 1959-60 and 1960-61 came before another Division Bench of the High Court and that Division Bench following the decision rendered by the High Court earlier disallowed the claim of the Company for deduction in respect of the payment of Rs. 16,885/- to Mr. A E. Joseph in each of the accoonling years relative to the assessment years in question. Aggrieved ~y the judgments of the High Court of Bombay, the Company has filed these appeals. We are concerned in these appeab with the claim of the Company in respect of a sum of Rs. 1,27,511/- out of Rs. 1,64,899/- referred to in questions Nos. 1 and .2 in the reference relatmg to the assessment year 1957-58 and the claim in re5pect of payment of Rs. 16,885/- made to Mr. A. E. Joseph during each of the three succeeding yean;. The undisputed facts of the case are : The shares of the. Company J. -DAVID .v. C.U. (Venkataramiah, I.) -were ·held by Davids or their nominees till they were transferred to Tatas; that according to the valuation made by the auditors of the ·Company, its assets were worth Rs. 155 lacs as on December 31, 1955; that -~t a meeting of the directors held on December 2, 1955, it had been resolved that the services of 22 employees should be terminated by paY,ing retrenchment compensation; that on January 25, 1956 al the extra-ordinary general meeting of the shareholders of the Company, it was resolved that the employees of the Company be paid certain SUll1S or annuity set out against the names of each of them and their services should be terminated with efkct from April 1, 1956; that an agreement was entered into between Davids and Tatas on March 23, T - - 1956 r~garding the J;ale of the shares in favour of the Tatas; that the uid agreement referred to the resolution passed at the meeting of the shareholders of the Company; that the Company paid retrenchment compensation according to the said resolution and that the Tatas dedtlcted from the purchase price the sum payable by the Company in accordance with the resolution of the Company from out of the con· aideration of Rs. 155 lacs which they had agreed to pay under tho agreement dated March 23, 1956 to Davids.

Apart from the resolution of the Board of Directors of the Company dated Dec~mber 2, 1955, the resolutions passed at the extra~ordinary general meeting ol the shareholders of the Company held on January 25, 1956, the agree-- meat dated March 23, 1956 entered into between Davids and Taw, 1he Jx>oks of aceount of the Company showing payments made by the Company by way of retrenchment compensation and the fact that 9 «the 22 employees whose services had been terminated had peen re- ~ployed, there was no other evidence before the Income-tax Officer.

The Income-tax Officer presumably because of the proximity of the ~~ 9f Jhe resolutions, the date of the agreement and the dates on / .,.,rucb retrenchment compensation was paid to the employees came 1 _ to the conclU8ion that the r~trenchmen_t of the employ~es had lx:en ,. · -etfocted as a part of the bargain entered mto between .Oav1ds .and Tata~ and therefore compensation pai4 to the employees on retrenchment of their services and to the director on the termination of his service had aot been paid in the course of the business of the Company by way of commercial expediency. He accordingly disallowed the claim of the Company under section 10(2)(xv) of the Act.

Although the Appellate Assistant CommiS8ioner in the course of his order observed that the Company had been benefited by reason of the retrenchment of the ienices of the employees as it had resulted in the reduction of the e.:penditure on the establishment, he disal1owed the claim on the very .ground on which the Income-tax Officer had rejected it. The Tr:ibu,pal proc~ed .to dispose of tbe case before it on ~e basis that 8 [1979] 3 S.C.ll. the inference drawn by the Income-tax Officer that the payments were motivated by the re-organisation in the shareholding had not . been questioned by the Company either before the Appellate Assistant Commissioner or before it. We do not find in the order of the Appellate Assistant Commissioner that any concession had been made by the Company to the effect that the finding of the Income-tax Officer referred to above was correct.

In the grounds of appeal before the Tribunal, the Company had stated that the Appellate Assistant Commissioner erred in holding that "the decision to pay compensation cannot in the circumstances be said to have been taken solely with a view to the business requirement of the Company though incidentally the - Company might have benefited by it." The appellants submitted be-- fore the Tribunal that the above amount was expended wholly and exclusively for the purpose of their business and as such it should have ocen deducted as an admissiable expense in computing their i'llco~e lia~le to income-tax.

The Tribunal while deciding the question whether the sums paid by way of compensation were deductible or not observed that the fact that a reference to payment to the staff of compensation had been made in the agreement led to the inference that such payment was a part of the bargain between Davids and Tatas; that on account of such payment, the purchasers had actually been benefi~ed while the Company had to make payment in order to give effect to the agreement and therefore there was no commercial purpose involved in making the said payment. The Tribunal also held that even assuming that the Company was benefited by payment of compensation by reason of reduction in its establishment expenses, since the payment had been made as a result of the bargain between Davids and Tatas, it could not be allowed as a deductible expenditure ..

It should be stated here that the Tribunal did not reverse the finding of ', 1 the Appellate Assistant Commissioner that the Company had been b.::nefited by such payment. In fact it did not go into the question whether the payment had really resulted in any benefit to the Company. The High Court, however, in the course of its judgment found that on account of the retn:nchment of the employees and re-emp!oyment of only 9 of them. the yearly wage bil1 of the Company for salaries was reduced from Rs. 1,14,197/- in 1955 to Rs. 67,268/- in 1956 and thereaftt>r in ::<nd 1958 respectively to Rs. 54,124/- and Rs. 54.960/-. I'n the instant case, it is no:-:cessary to bf'ar in mind that the Companv w::~s neither dissolved nor was its business undertaking sold . . It continued to exist as a juristic entity even after the transfer of it!! J 1 t J l SASOON J. DAVID V. C.I.T. (Jienkatarpmiah, /.) SSg har~ by Davids to Tatas. .

On account of such transfer of shares ~e transferees no doubt gained control on the Company. But on~ important fact of the case which was lost sight of by the High Court I and the Tribunal was that neither Davids nor Tatas derived any direct benefit out of the payment of retrenchment compensation to the employees even though such retrenchment might have facilitated the transfer of shares. It is also not the case of the Department that the payment · was excessive. That there was a substantial reduction in the wage bill in the future years as a consequence of retrenchment was also not disputed. It is too late in the day now, whatever may have been the position about two decades ago, to treat the expenditure incurred by· a management in paying reasonable sums by way of gratuity, bonus, retrenchment compensation or compensation for temJination of service as not business expenditure. Such expenditure would ordinarily fall within the scope of section 10 (2)

(xv) of the Act which authorised the deduction of any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out of expended wholly and exclusively for the purpose of business or profession or vocation. The Higlt Court, bov.o::ver, declined to allow the deduction of the sums referred to above in these cases principally relying upon the decision of this Court in Gordon Woodrof!ee Leather Manufacturing Co. v. The Commissioner of Income-ta.x, Madras('). The facts of that case were briefly thus : One J. H. Phillips was the Director of the assessee Company in that case from the year 1940. On March 22, 1949, he wrote a letter to the assessee expressing his intention to re~;i~ from its Board as from April 4, 1949 and requested that his resignation be accepted.

On March 24, 1949, the Board of Directors of the assessee passed a resolution that his resignation be accepted and in appreciation of his long and valuable services to the assessee he be paid a gratuity of Rs. 50,000/- out of which the nss-~ssee was to pay • Rs. 40,000/· and its Managing Agent was to pay Rs. 10,000/ -. Subsequently the resolution was approved at the extra-ordinary general IIlecting of the assessee. Accordingly a sum of Rs. 40,000/- was paid by the asscssee to Mr. J. H. Phi:tipc;. The assessee claimed deduction , of the 5aid sum of Rs. 40,000/- under section 10(2) (xv) of the Act. ~e Income-tax Officer as well as the Appcl!ate Assistant Commis· lloncr disallowed the said claim on the ground that the Company had no pcn~ion 6cl"r:me; that the payment was voluntary and that the entry in the assessee's books clearly indicated that the payment was (1) {1962) Supp. 2 S.C.R. 211. a capital payment. The Tribunal upheld the order of the Appellate Assistant Commissioll'~r.

It held that accordin& to the resolution .the gratuity was paid "for long and valuable services to the assC~See", that there was nothing to indicate that Mr. J. H. Phillips had ad<:epted a low~r salary in expectation of getting a gratuity at the. end of his service; that there was no such practice in the assessee..compa'ny; that during the course of his servic~ he was being remunerated at a graduated scale of salary and a commission of 2!% on the profits; that there was no "expectancy" that at the end of the service there wollld be recompense for faithful and efficient service and that he had been suitably rewarded by being given a commission oil the profits "in oi:der G to whip up his enthusiasm". It was als() found by the Tribunal that in the books of the assessee, the amount had not been debited in the profit and loss account but was debited to the appropriation account thereby indicating that it was an extra payment or a payme11t made in the nature of a capital expense.

On a reference under sec- 8 tion 66(1) of the Act, the High Court of Madras answered the question relating to the above item of expenditure against the aSBessee. On appeal, this Court affirmed the decision of the High Court. While holding that the claim made by the assessee did not satisfy the proper tests for claiming exemption under section 10(2) (xv) of the Act, this Court observed as follows:- I "In our opinion the proper test to. apply in this case is, was the payment made as a matter of practice which affected the quantum of salary or was there· an expectation by. the employee of getting a gratuity or was the sum of money ex- · pended on· the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. But this has not been shown and therefore the amount claimed is not a deductible item under s. 10(2) (xv) ."

After quoting in the course of its judgment the above passage, the High Court proceeded to observe as follows :- "Having regard to the test applicable in connection with the contentions made by Mr. Palkhiwala, what required to be investigated is whether the payments in question were made as a matter of practice which had affected the quantum of salary or whether there was an expectation by the employees (whose employment was terminated) of getting a gratuity or, . in the alternative, the above sums were expended on the SASOON ~. DAVID V. C.I.T. (Venkataramiah, J.) grc;:mnd of commercial expediency and in order indirectly to facilitate the carrying on of the business."

After making the above observation, the High Court held that the Company had ·not placed any evidence to show that there was a practice in the Company to pay compensation even though its attention was drawn that in the past i.e. between 1946 and 1952, the Company had paid such compensation in two cases on the basis of one monthts basic salary for each year of servke. It also rejected the case of the Company that th~ amount involved had been expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the Company even though it observed that the ie~dy wage bill of the Company was reduced after such payment.

The High Court held that the consideration of reduction of the wage bill ~a"s foreign to the decision taken by the Company to terminate the se~yices of the employees and to pay them retrenchment compensation and observed that the purpose of the payment so far as could be ascertained from the contents of the resolutions of the Board of Directors and the Company when read with the relevant contents of the agreement for sale was the carrying out of the. obligation arising under the agreement.

It also held that the fact the expenses became reduced was i~fficient to record a finding that the amount of retrenchment compensation was paid for commercial considerations or expediency, From the,·perusal of 'the judgment of the High Court it becomes cJear that th'e ·High Court placed more emphasis on the motive with which the ~mounf was expended than the fact that the expenditure had been . incurred in connection with the business of the Company and that such ~ expenditure resulted in the reduction of the annual wage hill of the ~- Comp~·ey in the future years. In order to claim deduction under section 10(2) (xv) of the Act, an assessee has to show that the expenditure in question (i) was not an allo~ance of .the nature described in any of the cJauses (i) to (xiv) of section 10(2);

(ii) was not in the nature of a capital expenditure or pet~o.Qa,J e~peuses of the assessee and (iii) had been laid out or expende<;I whotly and exclusively for the purposes of his business, profession or vocation. Even assuming that the motive behind the payment ofretrenchment compensation was that the terms of the agreement of the· sale of shares should be satisfied, as long as the amount had been laid out or expended wholly and exclusively for the purpose of the business of the ass~SSC() , there appears to be no good reason for denying SUPREME COURT _REPORTS the benefit of section 10(2) (xv) of the Act to the Company if tilere is no other impediment to do so. The facts of these cases are very close to the facts found ·in {i) Commissioners of Inland Revenue v. Patrick Thom8on Ltd. (in liquip dation), (ii) Commissioners oj Inland Rev~nue v. J. & R. Allan, Ltd. f. · (in liquidation), (iii) Commissioners of Inland Revenue v. P~tt~e>,p & Stephens Ltd. C).

The respondent-companies in the said were subsidiaries of a Company called Scottish Drapery Corporati!Nl Ltd., the control of which was acquired by the House of Fraser Ltd. Changes of organisation which were made in accordance with the policy of the House of Fra,ser Ltd. involved the termination of the contracts of service of the Managing Directors of the respondent-companies and also the eventual liquidation of those companies. Certain sums were paid by the companies to the managing directors in connection with the <>ancellation of their contracts, the payments being expressed in the first two cases to be in satisfaction of rights to future remuneration, and in the third to be. in lieu of notice. Before the Special Commissionen, the companies contended that the payments made by them to the Managing Directors in connection with the cancellation of theit eofl:.. tracts had been made to relieve them from onerous contracts and were allowable deductions.

The Crown contended that the payments were not ex~nses of the companies' businesses ~t were incidental tO the schemes by which those businesses were acquired by the House ef Fraser Ltd. and were made primarily for the benefit 0f that rompaay~ The Commissioners, however, decided that the deductions claimed wepe allowable. Upholding the findings of the Commissioners, the Lord Presideat observed at page 156 :- "In my opinion the contention put forward by tbe Crown is unsound and the Special Commissioners were correct in rejecting it. Admittedly in this case tto question arises in regard to the words "wholly and exclusively", and if the Crown's contention is unsound it is not disputed that the disbursement in question falls within section 137 (a). To succeed in their contention the Crown must establish two matters.

In the first place it must show thai the liquidation involved a discontinuance of the trade carried on prior to it by the Respondent Company and the subsequent operation of a new trade carried on by House of Fraser. In the second plac_e it must show that the expenditure in question was laid (1) !7 T.C. 14~. J l SASOON J. DAVID v. C.J.T. (Vtnkataramiah, /.) . 893 out fo~ the purposes ?f the new trade. Without both these . steps, tts a:&nment fails. In my opinion neither step in the argument IS made out." In the present case also, it is seen that the Company continued to function even after its control passed on to the bands of Tatas and the expenditure in question was laid out for the purpose of the Company's own trade and not for the trade of Tatas who were only the shareholders of the Company. We cannot overlook the distinction between the Company and its shareholders.

As a result of the expenditure in question, the Company was in fact benefited and it was possible for it to earn more pr:ofits as a consequence of the reduction in the wage bill. It was suggested in the course of the ar~meots before us that Tatas were actually benefited by the payment in question because the price payable by them for the shares was reduced by the amount spent by the Company. We do not find any substance in this contention. Admittedly the assets of the Company bad been valued as on December 31, 1955 at Rs. 155 lacs. Naturally the total value ot the shares of the Company would be Rs. 155 lacs which Tatas had agreed to pay. Subsequent to December 31. 1955, the Company had by passing the resolution incurred the liability to pay retrenchment compensation and compensation for termination of service as stated above. On account of the said resolution, the total value of the assets of the Company was reduced by the amount payable to the employees by way of compensation.

It is nat11ral that the purchaser of the shares would ordinarily claim reduction in the consideration payable for the shares by the amount which the Company had undertaken to pay 8ll assets of the Company became reduced to that extenl It cannot, therefore, be said that the Tatas were in any way benefited financially by reason of the reduction in the consideration payable by them ("f the shares. We feel that the expenditure in respect of which deduction is claimed by the Company in this case fal]j within the third test laid down by this Court in the caso of Gordon Woodroffu Ltather Mllllu/acturlng Co. v. The Commissioner of Income--ta.t Madras (supra) viz. that the sum of money had been expended ~n the ground of commercial exped}ency and in order indirectly to facilitate the carrying on o~ the bu~mess~ Wo are of the view that the three tests laid down by this Court 10 th above case viz. (i) that the payment should have been made as a matter ot practice which affected the quantum of salary;

(ii) th~~. there was an t 'ty and (m) that the expectatJGn by the employee of getting a gra w sum of money was expended on the ground of commercial .exped•ency a d • or the busme!s of the n tn order mdtrectly to faclhtate the carrymg oa "''I I II A.' assessee have to be read disjunctively and if they are so read, the present case .which satisfies the third test· should be held as falling under section 10(2) (xv) of the Act. The High Court -of Gujarat in Commissioner of Income-tax, Gujarat v. Laxmi Cement Distributors Pvt. Ltd. ( 1 ) and the High Court of Bombay in Commissioner of Income-tax, Bombay City I v. Fairdeal Corporation Pvt. Ltd. (2) and in Commissioner of Income-tax, Bombay City I v. Patel Cotton Co. Pvt. Ltd.(') have also understood the principle underlying the decision of_ this Court in Gordon Woodroffee Leather Manufacturing Co. v. The Commissioner of Income-tax, Madras (supra) in the same way.

The High Court was, therefore, in error in holding that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under section 10(2) (xv) of the Act. The next contention urged on behalf of the Department was that since Davids and Tatas were indirectly benefited by the retrenchment of the services of the employees of the Company and payment of compensation to them and since there was no necessity to retrench the services of all the employees, the expenditure in question could not be treated asan expenditure laid m1t wholly and exclusively for business purposes of the Company. It has to be observed here that the expression "wholly and exclusively" used in section 10(2) (xv) of the Act does not mean 'necessarily'. Ordinarily it is for the assessee to decide whether any expenditure shoul~ be incurred in the course of his or · its business.

Such expenditure may be incurred voluntarily and without any necessity and if it is incurred for promoting the business and to earn profits~ the assessee can claim deduction under section 10(2) (xv) of the Act even though there was no compelling necessity to incur such expenditure. It is relevant to refer at this stage to the legislative history of section 37 of the Income-tax Act, 1961 which· corresponds to section 10(2)(xv) of the Act. · An attempt was made in the Income-tax Bill of 1961 to lay down the 'necessity' of the expenditure as a condition fO't' claiming deduction under section 3 7. · Section· 3 7 ( 1) in the Bill read "any expenditure .... laid out or expended wholly, necessarily and exclusively for the purposes of the business or profession shall be allowed .... " The introduction of the word 'necessarily' in the above section resulted in public protest. Consequently when section 37 was finally enacted into law, the word 'necessarily' came to be dropped.

The fact that somebody other than the assessee is also benefited by the (1) 104 I.T.R. 711. . (2) 108 I.T.R. 280. (3) 108 I.T.R.'846. J ., I -. r \ y SASOON J. DAVID v. C.I.T. (Venkataramiah, l.) _expenditure should not come in· the way of an expenditure being -allowed by way of deduction under section 10(2) (xv) of the Act if it sati~fies otherwise the tests laid down by law. This view is in accord with the followini observations made by this Court in The Commissioner of Income.tax, Madras v.Chandulal KesMvlal & Co. PetladC) "Another fact that emerg~s from these cases is that if the · expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible.

Jn deciding whether a payment of money is a deductible expenditure orie. has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party (Usher's Wiltshire Brewery Ltd. v. Bruce) (6 T. C. 388). Another test is whether the transaction is properly entered into as a part of the assessee's legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby (Eastern Investments Ltd. v. The Commissioner of Income-tax, West , Bengal) (1951) S.C.R. 594.

But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee." --- --..u>· In the instant case, it was the case of the Company that many of the employees were old and superfluous and the business could be , carried on with a smaller number and the only way in which they could reduce the number was to terminate the services of all the employees by paying t~em compensation and thereafter r~employing some of them only. If the Company felt that that was a method which would inure to its benefit, it cannot be said that the payment of compensation was made with an oblique motive and without regard to commercial considerations or expediency. The High Court, therefore, erred on the facts and in the circumstances of the case in holding that the sum of Rs. 1,27,511/- was not deductible under section 10(2) (xv) of the Act and in answering questions Nos. ( 1) and ( 2) referred to it in Income-tax Reference No. 58 of 1963 arising out of the assessment (1)

[1960] 3 S.C.R. 3~, 48 . [1979} 3 S.C.lt order for the year 1957-58 agaimt the assessee and in favour of t}le Department to the extent of Rs. 1,27,511/-. Similarly it erred in disallowing the claim made in respe\:t of Rs. 16,885/- for each of the three succeeding assessment years. We, therefore, allow these appeals and hold that Rs. 1,27,511/- was also deductible under section 10(2) (xv) of the Act during the assessment year 1957-58 and sum of Rs. 16,8851- referred to above was allowable as a deduction durlng each of the three succeeding assessment years. The Department shall p~y costs to the appellant. (Hearing fee one set only). P.B.R. Appeals ttUowed. MGIPF-330SCil/i79:.......2500-4-12-79