DIVAN, J. - (1.)IN this reference the following question has been referred to the High Court by the Tribunal at the instance of the revenue :
' Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the respondent was entitled to claim the deduction of Rs. 15,420 incurred by it as and by way of legal expenses ?'

The assessee in this particular case is a private limited company and the relevant assessment year is 1965 -66. The assessee -company deals in iron and steel materials in accordance with the provisions of the Iron and Steel Control Order. The assessee as a legal person was a partner in a firm known as M/s. Kashiparekh Brothers (Scrap Department). The assessee was represented in that partnership firm by its managing director, one Premchand Gokaldas. There was a first information report to the police on September 28, 1963, against the firm of M/s. Kashiparekh Brothers and also against its two partners, Sarabhai Chhotalal and Gautam Sarabhai. The nominee of the assessee -firm, Premchand Gokaldas, was also one of the persons against whom allegations were made in the course of that first information report. It was alleged in the first information report that the accused persons had committed an offence under Section 7(ii) of the Essential Commodities Act by committing a breach of clauses 5 and 20 of the Iron and Steel Control Order, 1956. The authorities registered a case against all the accused under Section 7(ii) of the Essential Commodities Act. The board of directors of the assessee -company in their meeting held on October 10, 1963, passed a resolution stating that the company should make all efforts and engage the best lawyers and spend all necessary amount in proving the innocence of Premchand Gokaldas in the case started against him along with Sarabhai Chhotalal and Gautam Sarabhai. In due course, the three accused including Premchand Gokaldas were charge -sheeted and were actually charged before the City Magistrate concerned under Section 7(1)(a), Clause (ii), of the Essential Commodities Act and also for an alleged violation of Clause 20 of the Iron and Steel Control Order. Thereafter, Premchand Gokaldas defended himself and in this connection the companyincurred an aggregate amount of expenditure of Rs. 16,259. The City Magistrate, Third Court, Ahmedabad, acquitted all the accused except the partnership -firm and thus Premchand Gokaldas also came to be acquitted. In the course of his judgment the learned Magistrate held that the managing director was only a nominee of the assessee -company. The assessee claimed an aggregate amount of Rs. 16,259 spent by it for defending Premchand Gokaldas as a deduction. The Income -tax Officer disallowed the claim. In appeal by the assessee, the Appellate Assistant Commissioner held that an amount of Rs. 8,120 only was allowable as expenditure incurred wholly and exclusively for the purposes of its business. Against the decision of the Appellate Assistant Commissioner the matter was carried in further appeal to the Tribunal by the assessee. The Tribunal came to the conclusion that the assessee was entitled to a deduction of Rs. 15,420 and it held that an amount of Rs. 893 had been incurred in the previous assessment for the year 1965 -66. Thereafter, at the instance of the revenue, the above question has been referred to us by the Tribunal.

(2.)THE legal position regarding expenses incurred in connection with certain criminal proceedings with which the assessee is concerned has been considered in a series of decisions and out of them there is only one Supreme Court decision and that is to be found in Commissioner of Income -tax v. H. Hirjee, : [1953]23ITR427(SC) . In that particular case the assessee was carrying on business as selling agent of a company and he was prosecuted under Section 13 of the Hoarding and Profiteering Ordinance, 1943, and the charge was of selling goods at prices higher than the reasonable prices in contravention of the provisions of Section 6 of the Ordinance. A portion of the stock of the assessee was seized and taken away. The prosecution ended in an acquittal and the assessee claimed to deduct a certain sum spent by him in defending himself in the criminal case. The Tribunal found that the expenditure was incurred solely for the purpose of maintaining the assessee's name as a good businessman and also to save his stock from being undersold if the court held that the prices charged by him were unreasonable. In this case the Supreme Court held that, in the circumstances of the case, the amount was spent by the assessee in defending himself in the criminal proceeding but it was not an expenditure laid out or expended wholly and exclusively for the purpose of the business and was, therefore, not an allowable deduction under Section 10(2)(xv). At page 431 of the report, Patanjali Sastri C. J., delivering the judgment of the Supreme Court, observed :
' The deductibility of such expenses under Section 10(2)(xv) must depend on the nature and purpose of the legal proceeding in relation to the business whose profits are under computation, and cannot be affected by the finaloutcome of that proceeding. Income -tax assessments have to be made for every year and cannot be held up until the final result of a legal proceeding, which may pass through several courts, is announced.'

Apart from this early decision of the Supreme Court delivered in March, 1963, there is only one other decision of the Supreme Court decided in 1973. That decision is in Commissioner of Income -tax v. Dhanrajgirji Raja Narasingirji, : [1973]91ITR544(SC) . In this case of Dhanrajgirji, the assessee who was an individual was appointed managing agent for a period of 50 years of a public limited company which owned a mill. After a few years, the company got into financial difficulties and the assessee invited one R who agreed to bring the necessary finance. Under a tripartite agreement entered between the assessee, R and the company, R or his nominee was appointed the new managing agent and also selling agent of the company and the assessee was to be paid certain office allowance and a share in the managing agency commission and also in the selling agency commission. This agreement continued in force for some years. Civil and criminal litigation between the assessee and R took place and the assessee, with the permission of the court and with the consent of the Government, employed his own lawyers to prosecute the case. While the civil suit and the criminal case were pending, the assessee and R entered into a settlement under which R gave up the managing agency and further affirmed the right of the assessee to the selling agency. The selling agency commission was made payable to the assessee and was taxed in the assessment year 1948 -49. The question before the Supreme Court was whether the expenditure in civil and criminal litigation incurred by the assessee was an allowable deduction and the Supreme Court held that the entire expenditure was allowable as it was incurred by the assessee in his character as a trader wholly and exclusively for the purpose of business. The Supreme Court laid down that it made no difference whether the proceedings were civil or criminal. It was contended before the Supreme Court on behalf of the revenue that there was no necessity for the assessee to engage his own lawyers as Government was in charge of the prosecution. The Supreme Court observed while repelling this argument:

' It is not open to the department to prescribe what expenditure an assessee should incur and in what circumstances he should incur that expenditure. Every businessman knows his interest best.' Thus, this decision of the Supreme Court in Dhanrajgirji's case takes the matter a great deal further so far as the assessee is concerned.

In Saharanpur Electric Supply Co. Ltd. v. Commissioner of Income -tax, : [1971]82ITR405(All) the assessee -company had invested an amount of Rs. 45,000 out of its surplus funds with a non -scheduled bank. Another amount of Rs. 897 wasalso in credit with that banking concern. The assessee filed a suit to recover the said amounts from the banking concern as it was failing and obtained a decree but nothing was realised in execution of that decree. The assessee -company instituted criminal proceedings against one M who was its managing agent and also a partner of the banking concern as he was suspected to have committed breach of trust by depositing Rs. 5,000 in the banking concern when insolvency petition was pending against it. M was convicted and fined in those criminal proceedings. The assessee claimed that a sum of Rs. 6,200 which had been incurred as litigation expenses should be deducted in the computation of its total income. The Allahabad High Court on these facts held that the expenses incurred in the civil litigation against the banking concern were of revenue nature and were entitled to deduction under Section 10 of the Indian Income -tax Act, 1922. As regards expenses incurred in connection with the criminal case the Allahabad High Court held that in a company, which is formed for business, all its assets represent business assets. Any surplus capital of the company, which is not invested in the fixed or circulating assets, does not cease to be its business asset, and the Allahabad High Court held that the claim for the sum of money incurred in litigation for the recovery of a business asset was admissible under Section (10)(2)(xv). The Allahabad High Court held that the primary object of a criminal proceeding was to see that the guilty person was punished and the expenses for the criminal case could not be allowed as a deductible item. At page 409 of the report it has been observed:

' The expenditure incurred in prosecuting Mander Das could not be said to have been incurred for realising or protecting any asset. The primary object of a criminal proceeding is to see that the guilty person is punished.' The Allahabad High Court observed: ' In any event, even if one of the reasons for launching a criminal proceeding was to put pressure upon Sri Mander Das, the expenditure could not be said to have been incurred wholly and exclusively for the purposes of the business.' In Commissioner oj Income -tax v. Chaman Lal Bros., : [1970]77ITR383(Delhi) , the Delhi High Court has held that the amount spent by the assessee -firm, which was a registered partnership firm for the defence of one of its partners in a criminal case for alleged contravention of the provisions of the Foreign Exchange Regulation Act, 1947, was not deductible under Section 10(2)(xv) of the Indian Income -tax Act, 1922, and the fact that the acquittal of the partner was important for the reputation of the assessee -firm did not detract from this position.

(3.)ON the other hand, we find that the Punjab High Court has in J.N. Singh and Co. (P.) Ltd. v. Commissioner of Income -tax, held that the expenses incurred in defending an employee against a criminal prosecution with regard to a transaction carried out in the ordinary course of business of the assessee, can be allowed as a permissible deduction. In the case of an employee, such an expenditure is incurred to protect the good name of the business, the prosecution having emanated with regard to an act which took place in the ordinary course of business and the expenditure would be wholly and exclusively for the purpose of the business. Thus, this decision of the Punjab High Court distinguishes the case when an assessee himself or a partner of the assessee -firm is being prosecuted and expenses are incurred for defending the assessee or the partner, from the case where an employee of the assessee -firm is being prosecuted and expenses are incurred in defending the employee. In the first case, that is, in the case where expenses are incurred in defending the assessee himself, the amount cannot be claimed as a deduction since it cannot be said to have been incurred wholly and exclusively for the purpose of the business of the assessee. On the other hand, when an employee of the assessee is being defended and expenses have to be incurred in defending such an employee, the amount can be claimed as a deductible expenditure since defending the employee is defending the business activity of the assessee concerned, and, therefore, it would be wholly and exclusively for the purposes of the business of the assessee.
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