RAY, J. - (1.) THE following questions have been referred to us : "(1) Whether, in the facts and circumstances of the case, the arrangement between the assessee and the Bharatiya Vidya Bhavan for the publication of 8 books for and on behalf of the assessee was a transaction of a commercial nature and whether the loss incurred thereby is allowable under s. 10 of the IT Act ? (2) Whether the Tribunal was right in failing to consider the alternative claim for allowance of the loss under s. 12 of the Act arising on the identical facts ?"
(2.) THE assessee is a public limited company and the accounting year is the year ending the 31st March, 1954, relevant for the asst. yr. 1954-55. It had for its object in the memorandum, manufacturing and selling of paper. According to the memorandum it had also as one of its objects, carrying on any other industry, trade or business whether manufacturing, commercial or otherwise and as general merchants, contractors, agents, guarantors, etc. In 1951 the Bharatiya Vidya Bhavan of Bombay intended to bring out books of popular editions on topics of Indian culture. The scheme of Bharatiya Vidya Bhavan was tendered by consent of parties and marked as exhibit B. It appears from that scheme that 100 books in English were to be published and the books would be approximately of 250 pages each and at popular prices. The copyright in the books as also the editorial authority and the general planning and direction were to be with the Bhavan. There was to be a publishers' committee in order to share the printing and publication work. On that committee were to be represented publishers who, on behalf of the Bharatiya Vidya Bhavan, would undertake to finance certain books and share the net profits of those books with the Bhavan or pay for the copyright of the books published by them. In paragraph 12 of the scheme it was stated that the Bhavan expected that 100 books in each of the nine languages which were to be published would cost approximately Rs. 20,00,000 and it was expected that the first year's programme of 50 English books would cost in the neighbourhood of Rs. 1,75,000 but the sale in the initial year would naturally be restricted and amount to not more than Rs. 25,000. The Bhavan in that scheme stated that it needed Rs. 1,50,000 to start with and arrangements would have to be made in that behalf. In the scheme it was further pointed out that negotiations were going on with M/s Orient Paper Mills Ltd. for the said supply of uniform kind of paper and further that M/s Orient Paper Mills Ltd. agreed to publish 25 books in the English series on their own cost on the basis of the profits being handed over to them and they bearing the loss, if any. The scheme further stated that friends of the Bhavan were requested to undertake the Bhavan's cost of one or more books at Rs. 3,500 for a book in English and Rs. 2,500 for a book in Indian language so that the burden of initial outlay might be distributed. Correspondence started early in the year 1951 between Sri K.M. Munshi and Sri B.M. Birla. The first letter written by Sri Birla to Sri Munshi dt. 30th Jan., 1951, stated that the Hindusthan Cellulose and Paper Mills Ltd. would be publishers of the series of 25 English books to be selected by the Bhavan and the net profits of the series in the first edition, if any, might be divided on a suitable basis between the Hindusthan Cellulose and Paper Mills Ltd. and the Bhavan in the proportion of 25% for the Bhavan and 75% for the mills. On 21st Feb., 1951, Sri Munshi wrote to M/s Orient Paper Mills Ltd. that the Bhavan was willing to allow Orient Paper Mills Ltd. to publish 25 books at the expense of the mills on, inter alia, these conditions : (a) The cost of preparation and production of the 25 volumes will be borne by the mills; (b) The cost would include royalty, if any, payable in respect of any such volume; (c) The mill would be entitled to the profits of the volumes and would be liable for losses in respect of such works; (d) The mill will advance Rs. 500 for each volume for preparation of the manuscript. This letter was tendered by consent of parties and marked as exhibit A. On 24th May, 1951, after certain discussions had been had between Sri Birla on behalf of the assessee and Sri Munshi, the president of the Bhavan, Sri Munshi wrote to Hindusthan Cellulose and Paper Mills Ltd. that the Bhavan was grateful to the mills for their agreeing to publish 25 books at their expense and specified certain conditions. Eight such conditions were set out. By a letter dt. 9th June, 1951, Hindusthan Cellulose and Paper Mills Ltd. agreed to conditions Nos. 1,3,5 and 6 thereof. As regards conditions Nos. 2 and 4 mentioned in the letter dt. 24th May, Hindusthan Cellulose and Paper Mills Ltd. stated that the total financial investment in the publication of each of the 25 volumes would in no circumstances exceed Rs. 3,500 and that in the event of loss the mill would not be liable for any loss beyond the invested amount of Rs. 3,500. Condition No. 7 related to an advance of Rs. 1,000 to be made by the mill in respect of each volume and the mill wrote that they would be glad to pay an advance as and when the work for a volume was undertaken in hand. On 3rd July, 1951, Sm. Lilavati Munshi, vice-president of the Bharatia Vidya Bhavan, wrote to the mill referring to conditions Nos. 2 and 4 in the letter dt. 24th May, 1951, that the Bhavan agreed that the total financial investment in the publication of each of the 25 volumes would in no circumstances exceed Rs. 3,500 and that in the event of loss the mills would not be liable for any losses beyond the invested amount of Rs. 3,500. On this correspondence the net effect is that the assessee was to bear losses to the extent of Rs. 3,500 for each volume and profits, if any, were to go to the assessee.
(3.) COUNSEL for the assessee contended that the intention of the assessee was to make profit and because of profit making intention there is an indicia of trade and it was entitled to claim the loss of Rs. 28,000 suffered in respect of the eight publications. Reliance was also placed on conditions Nos. 6 and 7 in the letter dt. 24th May, 1951, to which I have referred. Condition No. 6 related to the first right of refusal regarding the second edition of the volumes being given to the mills and condition No. 7 related to the advance of Rs. 1,000 for each volume. COUNSEL for the assessee contended that it was only a trade advance of such money and, therefore, the dominant character of the transaction was trade. Condition No. 6 was not agreed upon. In any event if condition No. 6 was attracted it did not lay down the terms on which the second edition would be printed. Furthermore, it is uncertain as to when and on what terms the second edition would be printed. As to condition No. 7 it appears that the assessee did not agree to this condition as laid down but agreed to advance Rs. 1,000 per volume when the work would be undertaken in hand. Before the Revenue authorities it was contended that it was a venture between the Bharatiya Vidya Bhavan on the one hand and the assessee on the other. That contention was rejected, inasmuch as, there was no agreement for sharing of profits or losses. Counsel on behalf of the Commissioner contended that the scheme of Bharatiya Vidya Bhavan read along with the entire correspondence would furnish the key to the entire transaction. If profit making was the sole motive it might mean trade. The question here is whether there was the sole intention of making profit or whether there was any question of making profits at all in the background. It is apparent in the context of the scheme and the correspondence that in the initial stage the publications would cost Rs. 1,50,000 and the Bhavan expected persons to assist the Bhavan in the scheme and share the expenses at least to the extent of Rs. 3,500 for each volume. Counsel for the Department contended that it was strange that the figure of Rs. 3,500 should eventually be accepted by the mills as the figure of bearing losses. That may be accidental or that may be intentional. But in the present case I have no doubt in my mind that the dominant intention from the beginning was that the mills would help the Bhavan in its undertaking of publication of the various books in one of the languages that the mills undertook to publish and the amount of bearing losses at the rate of Rs. 3,500 per volume was undertaken by the assessee for the altruistic purpose of making a donation to the Bhavan to that extent.;