- (1.) The appellant (hereinafter called the 'assessee') carried on the business of manufacture and sale of blankets and other woollen cloth. For the assessment year 1948-49 the assessee claimed a deduction of Rs. 75,465 as commission paid to the General Manager Shri J. P. Vaish. According to the terms of appointment Shri J. P. Vaish was to draw a fixed salary of Rs, 1,000 p.m., commission of 12 1/2 per cent on the net profits of the firm payable after the accounts had been ascertained fully by the auditors and a car allowance of Rs. 250 p.m. It was one of the terms of the appointment that in case the profits exceed Rs. 1 lakh the commission payable to Shri J. P. Vaish was 25 per cent. Shri J. P. Vaish was also given medical facility for himself and the members of his family. In terms of the letter of appointment Shri Vaish got no commission in the first year as the mill suffered a loss. In the next year the profit being less than Rs. 1 lakh, Shri Vaish received a sum of Rs. 4,063 as commission. For the assessment year 1948-49, the assessee paid a sum of Rs. 75,465 as commission to Shri J. P. Vaish calculated at the rate of 25 per cent on the profits. The assessee claimed deduction of the said amount from the assessable income. By his assessment order dated June 30, 1949, the Income Tax Officer disallowed the claim on the ground that it was exessive and quite unreasonable looking to the salary paid to Shri Vaish. He also found that no general practice of giving commission at the rate of 25% existed in the assessee's line of business. Taking into account the circumstances of the case, the Income Tax Officer determined a sum of Rs. 5,000 as a reasonable amount payable as commission. Against the disallowance of Rs. 70,465 paid as commission to the General Manager, the assessee preferred an appeal to the Appellate Assistant Commissioner of Income-tax who by his order dated October 31, 1949 found that Rupees 5,000 was not sufficient and it was reasonable to allow the payment of commission at the rate of 12%. He accordingly increased the commission payable from Rs. 5,000 to Rs. 37,732 in that year. The assessee took the matter in appeal to the Income Tax Appellate Tribunal which by its order date July 10,1950 dismissed the appeal. As directed by the High Court the Appellate Tribunal submitted a statement of case under Section 66 (2) of the Income Tax Act, 1922 on the following question of law:- "Whether in the circumstances of the case the sum of Rs. 37,733 paid to the General Manager Shri J. P. Vaish, which has been disallowed by the Income-tax Appellate Tribunal was an amount laid out or expended wholly or exclusively for the purpose of the business of the assessee - By its judgment dated May 22, 1962 the High Court answered the question against the assessee. Against the judgment of the High Court the present appeal is brought by special leave.
(2.) Sections 10 (2) (x) and 10 (2) (xv) of the Income Tax Act, 1922 at the relevant time read as follows: "10 (2) (x): Any sum paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profits or dividend if it had not been paid as bonus or commission: Provided that the amount of the bonus or commission is of a reasonable amount with reference to - (a) the pay of the employee and the conditions of his service; (b) the profits of the business, profession or vocation for the year in question; and (c) the general practice in similar business, profession or vocation; * * * * * 10 (2) (xv): Any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly or exclusively for the purpose of such business, profession or vocation."
(3.) It was contended on behalf of the assessee that in the circumstances of this case the amount of Rs. 37,733 paid to Shri J.P. Vaish was an amount laid out or expended wholly or exclusively for the purpose of the business of the assessee and was wrongly disallowed by the Income Tax Appellate Tribunal. It was pointed out that Shri J.P. Vaish was in no way related to the proprietors of the firm and the commission on profits clauses was inserted to create the interest of Shri J.P. Vaish in the running of the mill which was old and unbalanced and had never worked continuously or satisfactorily before it was taken over by the assessee. During the first 14 months the mills made no profits and Shri J. P. Vaish was paid nothing beyond his salary and car allowance. In the next 12 months he succeeded in securing an order for Lohis from Government and so the mill made some profit and the amount of the Manager's commission was proportionately very small in terms of the agreement. The large profit in 1946-47 was made due to new design of civilian rugs Shri Vaish introduced for the first time in the mill after studying public tastes and the qualities and designs prevailing in the market. It was also said that Shri Vaish had a special aptitude to show in his work so far as the marketability of the goods was concerned. After the death of Shri Vaish in July 1947, the firm was converted into a company and the post of the General Manager was abolished and one of the Directors who managed the affairs of the company was given Rs. 18,000 per annum as remuneration and Rs. 6,000 per annum as allowance for the accounting year 1947-48. The Appellate Tribunal took the view that the post of General Manager carried the responsibility equal to that of the Director who was given the charge of the conduct of business after the death of Shri Vaish, the General Manager. This post carried a remuneration of Rs. 18,000 plus Rs. 6,000 i. e., a total remuneration of Rs. 24,000 per annum and therefore the commission paid to Shri Vaish in excess of this amount was not really paid wholly for the purpose of carrying on business. But it was pointed out on behalf of the assessee that Shri J. P. Vaish had taken over the mill at a time when it was old and dilapidated and in the first 14 months the mill made no profit and Shri Vaish was paid nothing beyond the salary and car allowance. In the succeeding year he was able to secure an order from the Government on account of which the mill made some profit. Shri Vaish introduced for the first time a new design of civilian rugs in the year 1946-47 during which a large profit was made. It was therefore contended on behalf of the assessee that the position of Shri Vaish who worked in the mill at the initial stage and of the Managing Director was not comparable and the Appellate Tribunal was wrong in taking this circumstance into consideration. Counsel for the assessee also pointed out that Shri Vaish was educated in a Public School of Dehradun and thereafter studied at the Benaras College and at the Engineering College of the Benaras Hindu University for Electrical and Mechanical Engineering and then joined the Commerce College at Delhi. After that he had training in the Aluminum Corporation of India Ltd., Lakshmi Rattan Cotton Mills Ltd. and the Road Products Ltd., Rampur. In view of the circumstances of the case it was urged on behalf of the assessee that the entire amount of Rs. 75,465 paid to Shri Vaish was an amount laid out wholly and exclusively for the purpose of the business of the assessee within the meaning of Section 10 (2) (xv) of the Income-tax Act, 1922.;