1. This reference raises the question with regard to the liability of the assessee company to pay tax on interest received by it in respect of advance payment of tax. Under Section 18A(6) the assessee company received interest in the sum of Rs. 7,519/- in respect of advance payment of tax. Under Section 18-A the assessee company which is under a statutory obligation to make this advance payment receives interest which is calculated at the rate of interest mentioned in Sub-section (5) from the date of payment till the date of assessment, and this amount aggregated to Rs. 7,519/-.
There is also provision under Sub-sections (6) and (7) for payment of interest by the assessee if under Sub-section (6) it fails to pay advance tax which is less than 80 per cent of the tax which it is ultimately assessed to pay, and if under Sub-section (7) it fails to pay the tax in proportion to the instalments in which the tax is payable, and a liability arose upon the assessee company to pay interest at 6 per cent it having committed default under Sub-section (7) of Section 18A and the amount of this liability was assessed at Rs. 4,554/-.
In the assessment year 1952-53 the Taxing Department brought the sum of Rs. 7,519/- to tax as the income of the assessee company. The assessee company did not contest the position taken up that this amount represented the income of the assessee company and was liable to tax, but the contention put forward was that this sum should be reduced by the sum of Rs. 4,554/- which was the interest which the assessee company was liable to pay and which it had paid.
What was argued was that in substance the assessee company had only received Rs. 7,519/- less Rs. 4,554/-, that that was the real income of the assessee, and the assessee was liable to pay interest on this amount of about Rs. 3,000/-. This contention was rejected by the Tribunal and the assessee company has now come before us on this reference.
2. Now, if we consider these two amounts separately, then the assessee company has to satisfy us that the sum of Rs. 4,554/- was & permissible deduction under the Income-tax Act.
Mr. Palkhivala realised the difficulty of putting forward his client's case from this aspect & therefore the first argument advanced by him was that we must look at the payment of interest by the assessee company and the receipt of the interest by the assessee company as a single indivisible-transaction and when we look at it from that point of view the transaction resulted in the assessee company receiving a sum of about Rs. 3,000/-which alone is liable to tax. He said it is not proper to sever this transaction, to tax Rs. 7,519/-and not to allow any credit to the assessee company for the amount of Rs. 4,554/-. which it has paid by way of interest.
In our opinion, there is no relationship whatever between the receipt of interest by the assesses company under the provisions of Section 18A and the payment of interest by the assesses under the provisions of that section. When we look at the scheme of Section 18A it becomes apparent that the Legislature in enacting that section has made a very vital departure from the scheme of the Income-tax Act. As is well known, under the Income-tax Act an assessee pays tax on the income of his previous year.
What Section 18A does is to provide for payment of tax in respect of the current year, and therefore the Legislature looked upon this provision as a statutory advance by the tax payer of the tax which ordinarily he would have been liable to pay after the end of the year. Inasmuch as this obligation was cast upon the assessee to make this advance payment, the Legislature provided that he should receive interest at 2 per cent. originally end now at 4 per cent.
The Legislature had also to provide that this advance tax was paid by tax payers all over the country and as an inducement it was provided that if the assessee failed to pay this advance tax he would be liable to pay interest at the rate of 6 per cent. Therefore, the liability to pay interest arose from the failure of the assessee to make the statutory advance.
It was the consequence of the default committed by him to discharge his statutory obligation. Now, it is difficult to understand what connection there is between the advance tax paid by the assessee by his discharging his statutory obligation and receiving interest, and the failure of the assessee to make that statutory advance. In the first case, he is being paid interest for making the advance payment.
In the second case, he is made to pay interest for failure to make the advance. There is no connection between these two positions and it is ; impossible to accept Mr. Palkhivala's contention that the facts with which we are concerned in this case, viz., the advance made by the assessee on which he received interest, and the failure by the assessee to carry out the provisions of Section 18A (1), are so connected as to constitute one transaction.
The result of each of these facts must have separate and independent legal consequences. The receipt of interest undoubtedly constitutes income. The failure to pay interest must be examined on its own merits or demerits and we have to decide whether the failure to make the advance and the necessary consequence of having to pay interest entitles the assessee to any relief or reduction under the provisions of the Income-tax Act.
3. Reliance was placed by Mr. Palkhivala on the statutory assessment from which is prescribed and which contains a column with regard to advance payment of tax, and this form contains the various headings under which interest is payable by the assessee and also the heading of interest payable by Government under Section 18A (5) and then at the end of it we find 'Net amount of interest payable by assessee/Government.' So the net amount is the result of computation of interest payable by the assessee 'and the interest payable by Government.
What is urged by Mr. Palkhivala is that theery fact that this form mentions 'net amount'means that for the purpose of tax you have to takethe net amount and not the individual items of interest payable by the assessee and interest payable by Government. What is urged is that this net amount constitutes the quantum of income on which tax is attracted. Now this form does not in any way suggest that the net amount arrived at constitutes income.
The net amount is ascertained merely _ as a matter of computation because if there is an amount payable by the assessee then the amount is added to the tax; if the amount is payable by Government then the amount is deductible from the tax payable under the assessment order.
But the question as to whether this net amount is income or what portion of it is income has to be decided when the interest becomes the subject matter of assessment in the following year, and that is exactly what happened in this cage. After the fact was ascertained that the net amount of Rs. 3,0007- and odd was payable by Government, the question then arose in the following year, when the assessee was assessed, as to whether the whole sum of Rs. 7,519/- received by the assessee was liable to tax or the sum of Rs. 7,5I9/- reduced by the sum of Rs. 4,554/-.
In our opinion, there is not much substancein the contention that this form in any way helpsus to determine the nature or the quality of theamount received and paid by the assessee as andby way of interest under Section 18A.
4. It is then said that from the commercial and technical point of view the payment of interest by Government and the payment of interest by the assessee stands on the same footing, Mr. Palkhivala says that both constitute interest in the technical sense and you cannot tax interest which is received without giving credit for the interest which is paid out by the assessee.
Our attention was drawn to the definition of 'interest' which was given by Lord Wright in a judgment of the House of Lords reported in Westminster Bank Ltd v. Riches (1947) 28 Tax Cas 159. Lord Wright says:
'.....the essence of interest is that it is apayment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had the use of the money, or conversely the loss he suffered because he had not that use. The general idea is that he is en. titled to compensation for the deprivation. From that point of view it would seem immaterial whether the money was due to him Under a contract express or implied, or a statute, or whether the money was due for any other reason in law.'
Therefore, Mr. Palkhivala urges that inasmuch as the advance tax was due by the assessee under Section 18A and as he failed to make that payment, he became liable to pay interest and that liability must be looked upon as compensation to Government and that compensation must be characterised as technical interest as understood in commercial circles.
The difficulty that Mr. Palkhivala finds himself in is that if we were to apply the same test to the interest received by the assessee and paid by the Government, then this test suggested by Mr. Palkhivala can have no application. If there is a liability upon the assessee to pay the tax and he pays interest because he does not discharge that liability, then it is difficult to understand why Government should pay interest to the assessee because all that the assessee does is to discharge his statutory obligation.
It is clear therefore that the provision for interest in this Act is not for compensation for use of the money belonging to the creditor which a debtor has, but the payment of interest is for anentirely different consideration which we have already referred to and which we will again restate. The whole basis of Section 18A is that Government was not entitled to the tax which the assessee was called upon to pay.
The payment which would have been due at a later date was being accelerated and for that purpose Government was paying interest to the assessee. As against that, Government having imposed a statutory obligation upon the assessee to make this accelerated payment had to make some provision for default in making this payment. Mr. Palkhivala has been at pains to point out to us that the payment of interest is not in the nature of penalty and he has drawn our attention to an independent provision for penalty contained in Section 18A(9).
Now, although it is true that failure to pay advance tax is not a penalty in the sense of the default carrying with it any mens rea or subjecting the defaulter to any severe punishment, it is equally true that the interest which the assessee has to pay, if not penalty, is in the nature of penalty. The very fact that whereas Government pays the assessee interest at the rate of 2 or 4 per cent and the assessee has to pay 6 per cent interest goes to show that Government wanted to enact some provision whereby the assessees would be induced to make the advance payment and the deterred from committing a default by fear of the consequence.
Therefore, it is erroneous to suggest that when an assessee committing a default under Section 18A has to pay interest at the rate of 6 per cent to Government, ail that he does is to make compensation to Government in the ordinary commercial sense. What he pays is characterised as interest, but it is equally the consequence which he has to suffer for failing to discharge his statutory obligation.
5. If, therefore, the payment by the assessee of interest and the payment by Government to the assessee of interest cannot be looked upon as constituting a single transaction, we must proceed to examine the payment of interest by the assessee independently, and when we do so it is suggested in the first instance that the payment falls within the ambit of Section 10(2) (xv).
It is difficult to understand how, when a businessman commits default in discharging his statutory obligation, the consequences of that default could constitute an expenditure exclusively made for the purpose of his business.
Realising this difficulty Mr. Palkhivala was driven to urge that this liability was incurred by reason of a mistake committed by an employee of the assessee company and if that is so he was prepared to satisfy us on authority that the case would fall under Section 10 (2) (xv). There is nothing to suggest in the statement of the case that the default committed by the assessee was due to any mistake or negligence on the part of its employee and we have not permitted Mr. Palkhivala to elaborate this contention.
It was also suggested that apart from Section 10 (2) (xv), deduction should be permitted on the principles of commercial expediency. But Mr. Palkhivala frankly conceded that if we were against nun with regard to his argument about Section 10(2)(xv), the position would be the same with regard to this head of his contention.
6. He has drawn our attention to an observation of the Tribunal in the statement of the case that the so-called ordinary principles of commercial accounting are not found to be defined in any Code and the Tribunal is unable to understand as to what are those principles. NOW, wehave had occasion to point out in several decisions that what the Income-tax Act purports to tax is business profits and business profits are the true profits of a business as ascertained according to commercial principles.
There may be an expenditure or there may be a loss which may not be an admissible loss under any of the provisions of Section 10(2) and yet such an expenditure or loss would have to be allowed in order to determine what were the true profits of a business, and it is the duty of every one who has anything to do with taxing business people to understand what are the principles of commercial expediency.
Unless one understands these principles it is difficult to make a proper assessment on a business or on a businessman. But this question does not arise here because as already pointed out no further aspect of the case has to be considered under this head different from what we have already considered under Section 10(2)(xv).
7. A rather faint argument was advanced that the income of Rs. 7,519/- which has been brought to tax falls under Section 12 and under Section 12(2) the payment of interest of Rs. 4,554/- should be allowed.
It is difficult to understand why the assessee company had to commit default and pay Rs. 4,554/-in order to earn the interest of Rs. 7,519/-. He could have earned the same interest with the same ease and perhaps with a clearer conscience if he had not committed the default and was liable to pay the sum of Rs. 4,554/-.
8. Mr. Palkhivala did not press the point which he had urged before the Tribunal and which forms part of the question referred to us, that his case fell under Section 10(2) (iii).
9. Therefore we must answer both the questions in the negative. The assessee to pay the costs.
10. Answered in negative.