MADHAVAN NAIR J. - The question referred to us is whether the sum of Rs. 13,730 paid by the Penang Firm at Penang to at Penang to a creditor of the Tinnevelly Firm can be treated as a remittance of foreign profits in British India.
The question arises with reference to the inclusion in the additional assessments made upon the petitioner for the year 1932-33 (previous year 13-4-31 to 12-4-32) of this sum which is the amount paid by the petitioner Penang shop in respect of two hundies drawn by him in the following circumstances. In or about July 1931 the Tinnevelly shop of the assessee. The trustees carries on money-lending business outside India at Penang, Rangoon and Thonze. When he applied for repayment of the money the petitioner issued two hundies on his Penang shop for the amount due with interest, namely, Rs. 13,730. The Penang shop paid these amounts on 9-10-1931.
The transactions relating to the discharge of the debt and the payments were recorded in the Penang folio of the Tinnevelly books and in the Tinnevelly folio of the Penang books as mentioned in the reference. The petitioners did not dispute before the Income Tax Officer that the profits in Penang were sufficient to cover the remittances.
The point for determination is whether the amount in question was received in British India in the year of account within the meaning of section 4(2) of the Income Tax Act. The petitioner contends that it was not so received relying on the authority of the decision in Hall v. Marians (18 Tax Cases 148). That case is clearly distinguishable. In that case a lady who had overdrawn her account in the National Bank of India in London instructed that Bank to transfer the loan to her current account with its Colombo branch an this was carried out by cross entries in the books of the two offices. A small credit balance in Colombo was thereupon converted into a debit balance and a few weeks afterwards the overdraft and the interest accrued thereon were discharged out of the proceeds of the sale in Colombo of certain in Indian bonds helds by her. It was held that the proceeds of the sale of bonds had not been received in the united Kingdom within the meaning of Rule 2 of cases V. On the facts the present case is altogether different from this case. The petitioners indebtedness to the trustee of the patasala was not transferred to Penang as it was in the English case. What happened here was that the indebtedness in British India was discharged by the issue of a hundi drawn on the Penang shop. Discharge of a debt by issuing hundies is well-known in commercial circles as the discharge of a debt. In the circumstances of the case the debt remained an Indian debt and it was discharged by the issue of a hundi in India. What the petitioners did was to use in British India monies available to him Penang and this, in our opinion, amounts to a receipt in India by the assessee of his gains outside British India. It was argued that it must be understood that the parties had agreed to have the debts discharged out of India and that therefore there was no constructive receipt of the monies in question in India. The idea of a special arrangements between the parties should be excluded because of the fact that a hundi was issued in India in discharge of the debt.
I was then argued that in order to come within the meaning of the term received as used in Section 4 of the Income Tax Act there must be an actual transfer of the money in question and the receipt of the sum in India. No authority in support of that contention has been cited to us. The decision in 8 Indian Tax Cases 103, having regard to the facts of the case, does not support this contention.
We would therefore hold that the sum of Rs. 13,730 mentioned in the reference should be treated as a remittance of foreign profits in British India. We answer the question accordingly. The Commissioner will get Rs. 250 for costs from the assessee.
STONE, J. - I agree.
KING, J - I agree.
Reference answered accordingly.