1. The assessee is a limited liability company (sic)irrying on the business of marine engineers and (sic)ip-repairers. It is resident and ordinarily resident, (sic)he entire share capital of the assessee company beneficially owned in equal shares by two British companics, the P. and O. Steam Navigation Co. and the British India Steam Navigation Co. Ltd. The business of the assessee company includes repair and maintenance of shins and an arrangement was arrived at between the assessee company and the P. and O. Steam Navigation Co. and the British India Steam Navigation Co, that the assesses company will repair the ships of these two companies at cost price and will charge no profit.
Therefore the result of the assessee company carrying on the business of repairing ships of these two British companies was that it made no profit for the relevant assessment years. The income-tax authorities took the view that Section 42(2) applied to the case. They worked out the profit which would have ordinarily been made out of this business activity on the part of the assessee company and assessed it to tax, and the question that arises for our consideration is whether on these facts Section 42 (2) applies.
2. Now, Section 42(1) deals with the income, profits or gains which arise through a business connection in India which a non-resident may have, and such income, profits or gains of the non-resident are made liable to tax, and the tax has to be imposed either in his name or in the name of his agent which may be appointed under the provisions laid down in the Act, and if the tax is imposed in the name of the agent, then the agent is deemed to be for all purposes of the Act the assessee in respect of such income-tax.
Section 42(2) deals with an entirely different set of circumstances. A resident may carry on business in the taxable territories with a non-resident and there may be a close connection between the resident and the non-resident and by reason of that close connection the resident may not make any profit out of the business that it is carrying on with the non-resident.
The Legislature lays down that if such a situation arises, it will not permit the non-resident to deprive the Indian revenue of the tax on the profits which the resident would ordinarily have made. In the case of Section 42(2) the tax is to be imposed in the name of the resident person who shall he deemed to be for all purposes of the Act the assessee in respect of such income-tax.
Therefore it seems that whereas Section 42(1) is aimed at the income, profits or gains which the nonresident might make and which might escape taxation but for the provisions contained in that subsection, the provisions of Sub-section (2) are aimed at the resident whose profits would escape taxation but for the provisions contained in that sub-section.
3. Now, in our opinion on a true reading of Sub-section (2), what has got to be determined in the first place is whether there is a resident in the taxable territories who is carrying on a business. It is then necessary to consider whether such business would ordinarily have yielded profits. If such a business would have ordinarily yielded profits, it is next to he determined whether the resident is carrying on business with a non-resident.
If he is so carrying on business, it has also got to be established that there is a close connection between the resident and the non-resident. Now, in this case certain facts are beyond dispute. It is not disputed that the resident, the assessee in this case, the Mazgaon Docks Ltd., is carrying on business in the taxable territories of repairing snips.
It is not disputed that ordinarily the business activity of the assessee would have yielded profits. It is not disputed that the resident is carrying on business with the non-resident, the two shipping companies to which reference has been made. It is not disputed that there is a close connection between the resident and the non-resident companies.
But the only point on which Mr. Palkhivala says that Sub-section (2) has no application is that according to him the non-resident does not carry on business with the resident and therefore one of the important conditions of Sub-section (2) has not been complied with. Mr. Palkhivala says that the business of the non-resident is to ply ships, it is not its business to repair ships, and when it repairs shins, it repairs them in the course of its business; and what is done in the course of ones business is not the same as carrying on that business itself.
Undoubtedly the two shipping companies are not carrying on the business of repairing ships, but in advancing that argument Mr. Palkhivala is reading Sub-section (2) as if it enacted that the non-resident must carry on business in the taxable territories. That is not what Sub-section (2) requires. Sub-section (2) requires that a person not resident carries on business with a person resident in the taxable territories, and in advancing the argument that he does he overlooks the important and vital distinction between the expression 'carrying on business' and the expression 'carrying on business with a certain person.'
The essential requirement of Sub-section (2) is not that the non-resident should carry on business in the taxable territories. The essential requirement is that the resident should carry on business in the taxable territories which business would ordinarily yield profits. The non-resident is introduced in this sub-section because by reason of the close connection between the resident and the non-resident, the resident agrees to a scheme by which he does not charge any profits, allows the non-resident the benefit of his business and in a sense permits the non-resident to benefit by the profits which the resident would have made and which would have been liable to taxation.
4. Now, Mr. Palkhivala says that there must be an equation between the business of the nonresident and the resident, and it is only then it could be said that the non-resident carries on business with the resident. According to him the sub-section would only be made applicable if in this case the non-resident did the same business as the resident; in other words, it is only if the non-resident did the business of repairing ships, which is the same business as that of the resident, that subsection would have any application.
We do not understand why the section requires such an equation. It is difficult to understand why, if the resident carries on business with the nonresident -- and that position is not disputed by Mr. Palkhivala -- it would not equally be said that the non-resident carries on business with the resident. If the Mazgaon Docks in repairing ships of the two shipping companies is carrying on business with those two shipping companies, equally and as clearly the two shipping companies are carrying on business with the Mazgaon Docks.
Business is not a unilateral act. Business is brought about by a transaction between two or more persons, and if there is an activity which is a business activity and that activity is carried on between two persons, then each is carrying on business with the other and not only one party to that activity is carrying on business with the other.
All that is necessary in order that it could be said that a non-resident is carrying on business with a resident is that the non-resident must carry on in activity in relation to the resident, which activity can be characterised as a business activity. It is perfectly true that every activity of a non-resident in relation to a resident would not be a business activity.
But if the activity is sufficiently continuous and if the activity is in relation to the business of the non-resident, then there is no reason to suggest that the non-resident is not carrying on business with the resident.
5. We must construe Sub-section (2) bearing in mind the object which the Legislature intended to Out by enacting this sub-section and we must look at the whole of that sub-section in order give proper effect to it. It would be erroneou(sic) in our opinion, merely to wrench from its conte(sic) the first part of Sub-section (2) and to give to it a mea(sic) ing which will render the whole object of the Legislature futile.
What Mr. Palkhivala wants us to do is to construe the first part of the sub-section as if that was the key to the whole of that sub-section. In our opinion that is not the correct approach to the sub-section. If it is borne in mind that what the Legislature intended to tax was the business activity of the resident, which business activity would ordinarily have yeilded profits but which does not yield profits by reason of the close connection-between the resident and the non-resident, then, in our opinion, there is no difficulty in putting the proper construction on the expression that the nonresident carries on business with a person resident in the taxable territories.
It has also been urged by Mr. Palkhivala that before an activity can be characterised as a business activity, it must form part of a scheme of profit making. He says that whether in fact profit are made or not, the scheme must be intended to earn or make profits, and it is Said that this particular activity of the non-resident cannot be a part of the scheme of profit making.
We are not prepared to accept the proposit(sic) that before Section 42(2) is attracted it is necessary (sic) not only the business activity of the resident (sic) he such as would ordinarily yield profits, but the business activity of the non-resident must (sic) such as would ordinarily yield profits. But (sic) assuming that was so, it is again difficult to ur(sic) stand how the activity on the part of the ship companies to get their ships repaired is not a of the scheme of profit making.
The P. and O. Company and the British Steam Navigation Company, we take it, themselves on putting on the sea seaworthy and they can only make profits provided they ships which arc seaworthy, and in order to ships seaworthy we again assume and r(sic) that they have to be repaired- from time to(sic) Therefore in repairing their ships the two sh(sic) companies are pursuing a scheme of profit m(sic)
It is fallacious to suggest that the only s(sic) of profit making is of plying ships and g(sic) passengers or cargo to be carried by those Neither shipping company would have any p(sic) gcrs or cargo unless their ships were in a fit(sic) dition and they can only be in a fit condition (sic) viclcd they are properly repaired from time to Therefore even from that point of view in opinion the activity of the non-resident is a bu(sic) activity, and as that business activity is with(sic) resident, it would be true to say that the resident carries on business with the resident.
6. In our opinion, therefore, the Tribunal in error when it took the view that on the (sic) of this case Section 42(2) had no application. We (sic) therefore, answer the question submitted to u(sic) the affirmative. With regard to the quantum, question must be left to the Tribunal. The q(sic) turn will be fixed by the Tribunal in accorda(sic) with the provisions of Section 42(2). The assessee pay the costs.
7. Question answered in affirmative.