SIKRI, J.: - (1.) THE following Judgment of the court was delivered by
(2.) THESE appeals by special leave are directed against the judgment of the High court of Judicature at Bombay answering the following question (Question No. 3) against the Commissioner of Income-tax, Bombay City and Suburban District, appellant before us: '3. Whether on the facts and in the circumstances of the applicant's case the tribunal was right in holding that a proportionate part of the profits determined on sales grouped under Items 3, 4, 5 and 9 in the assessment order by the application of Rule 33 was assessable to Income-tax? The High court, in view of its answer to this question did not answer the following question (Question No 2): 'Whether on the facts and in the circumstances of the applicant's case, the tribunal was right in holding thatin respect of sales of Rs. 14,80,059.00 the profit was correctly determined by the application of Rule 53 and one-third of the profits so determined could be said to accrue or arise in British India?' We are not concerned with the remaining question (Question No. 1) which related to sales to the government of India, as that question was answered in favour of the appellant. Relevant facts are as follows: The respondent, Hukamchand Mills Ltd., Indore, hereinafter referred to as the assessee, is a limited company incorporated in the State of Indore and had a textile mill at Tadore. It carried on the business of manufacture and sale of textiles in the calendar years 1941, 1942, 1944, 1945 and 1946. For the relevant assessment years, namely, 1942-43, 1943-44, 1945-46, 1946-47 and 1947- 48, the Income-tax Officer found that the assessee effected certain sales to merchants and others in British India. For the assessment year 1942-43, the Income-tax Officer classified the total sales of Rs. 92,45,151.00 into four categories. Out of the total sales, sales Rs. 14,80,059.00 formed the subject-matter of the two questions reproduced above. The statement of the case details the categories in the following chart: JUDGEMENT_1907_AIR(SC)_1967Html1.htm (The figures at the extreme right show the item numbers used by the Income-tax officer in para 2.of the assessment order). The modus operandi for effecting the sales enumerated in the chart referred to above is described as follows in the statement of the case: '(a) Sales of Rs. 6,66,787.00:-The assessee had a paid representative at Bombay who canvassed on behalf of the Company to British Indian Merchants. The orders were sent by such merchants to Indore. On acceptance of orders by the Company at Indore the Company prepared the contracts, signed them and forwarded the same for being signed by the customer. One contract was signed by the customer and returned to the assessee. Thus 'the Company signed at Indore and the customer signed, in British India. The contracts were signed on company's forms. On some contracts there were stamps of Holkar State. On the remainder there were 'British India' stamps. Sales on which Holkar Stamps were affixed aggregated to Rs. 20,759.00 which were deleted by the Appellate Assistant Commissioner from the said sales of Rs. 6,66,787.00. Sales of Rs. 3,35,855.00 under this category received in British India by the representative of the assessee at Bombay were taxed on receipt basis and the same was not contested, as stated above. The goods under the contracts referred to hereinabove were delivered F.O.R. Indore. The relevant railway receipt made in the name of 'self' was endorsed in favour of the customer and was handed over to Imperial Bank of India, Indore, for being delivered to the merchant. Sale proceeds were received at Indore through the Imperial Bank of India, Indore. (b)Sales of Rs. 2,91,891.00 :-The brokers in British India who were described as free lance brokers transmitted the offers to the company. These offers were made on the brokers' own forms and were communicated to the merchants through the brokers. Such orders were placed by the brokers in the normal course of business of these brokers who were not en,aged by the Mill as such. The goods were delivered F.O.R. Indore. The relevant railway receipt made in the name of 'Self' was endorsed by the assessee in favour of the merchants and handed over to the Imperial Bank of India. (c)Sales of Rs. 3,85,214.00:-These sales were made to British Indian merchants and customers, who came to Indore to negotiate and place orders. The orders were accepted at Indore. On some contracts made for sales under this item, stamps of Holkar State were affixed. Sales pursuant to contracts on which stamps at Holkar State were affixed aggregated to Rs. 98,990.00 which was deleted by the, Appellate Assistant Commissioner from the aforesaid sales of Rs. 3,85,214.00. The goods were delivered, F.O.R. Indore. The railway receipt was made out in the name of 'Self' and was endorsed by the assessee in favour of the customer and handed over to the Imperial Bank of India for being delivered to the party concerned. The sale proceeds were received at Indore as in other cases. (d)Sales of Rs. 3,13,306.00:-Sales under this category were made to British Indian merchants on their or their broker's personal visit to Indore. Contracts for such sales were made in the same manner as stated hereinbefore. Such sales, in respect of which relevant contracts bore the Holkar State stamps aggregated to Rs. 57,390.00 which were deleted by the Appellate Assistant Commissioner from the aforesaid sales of Rs. 3,13,306.00. The goods were delivered F.O.R. Indore. The railway receipt was made in the name of 'self' and was endorsed infavour of the customer and handed over to the Imperial Bank of India for being delivered to the merchants. The sale proceeds were recovered from the Imperial Bank of India, Indore, at Indore as in other cases.'
(3.) THE Income-tax Officer held that profits apportionable on sales of Rs. 16,57,198.00 accrued or arose in British India and as such taxed the same on accrual basis. Rs. 3,35,855.00 having been received in British India were taxed on accrualcum-receipt basis. THE Appellate Assistant Commissioner on appeal held that taking into account all facts of the case it would be fair to take 3 3-1/3 % of the profits realised on sales amounting to Rs. 16,57,198.00 as attributable to activities in British India. Out of this amount he deducted sales totalling Rs. 1,77,139.00 as the contracts in respect of these were signed at Indore and accepted at Indore. On the balance of sales of Rs. 14,80,059.00 the Appellate Assistant Commissioner held that, on the analogy of Rule 33 of the Indian Income-tax Rules, 3-1/3% profits out of the total profits apportionable to such sales should be attributable to the activities in British India and as such taxed in the hands of the assessee. THE tribunal confirmed the order of the Appellate Assistant Commissioner. In compliance with the order of the Bombay High court, the Appellate tribunal drew up a statement of the case under s. 66(4) of the Indian Income-tax Act, and referred three questions mentioned above. THE High Court, as stated above, answered Question No. 3 in favour of the assessee, and the appellant having obtained special leave, the appeal is now before us. Mr. S. T. Desai the learned counsel for the appellant, contends that the High court was wrong in holding that no part of the profits of the sales could be said to have accrued or arisen in British India. He says that on the facts and circumstances of the case, the property in the goods passed in British India in all the four categories. He says that the method of delivery in the four categories was similar, namely, that the railway receipts were made in the name of 'self' and endorsed in favour of the customers and were handed over to the Imperial Bank of India, Indore, for being delivered to the merchant and sale proceeds werereceived at Indore through the Imperial Bank of India, Indore. He further says that the fact that the goods were to be delivered F.O.R. at Indore does not make the property in the goods pass at Indore. There. is considerable force in the learned counsel's submissions. In Pushanlal Mansinghka (P) Ltd. v. The Commissioner of Income Tax. Delhi,(1), this court, on similar facts, held that the property in the goods passed in Part A and Part C States where the delivery was made. This court further held that the income accrued only when the purchaser paid the price through the bank. The method of delivery. in that case was as follows: 'The appellant consigned the goods to 'self' and the railway receipts alongwith the bills of exchange were presented by the appellant to the Rajasthan Bank. Bhilwara, for collection after endorsing the railway receipts in favour of the Bank. It has also been found that the Rajasthan Bank in its turn endorsed the railway receipts in favour of its branches in Part 'A' and Part 'C' States and that the goods were delivered to the buyers only when they paid the price to the Bank and obtained the railway receipts.';