Companies Act Case Law Surana Steels Pvt. Ltd. Etc. Etc. Vs Deputy Commissioner Of Income Tax And Ors.

CASE NO.:
Appeal (civil) 4471 of 1995

PETITIONER:
SURANA STEELS PVT. LTD. ETC. ETC.

RESPONDENT:
DEPUTY COMMISSIONER OF INCOME TAX AND ORS.

DATE OF JUDGMENT: 13/04/1999

BENCH:
S.P. BHARUCHA & R.C. LAHOTI

JUDGMENT:
JUDGMENT
1999 (2) SCR 589

The Judgment of the Court was delivered by

R.C. LAHOTI, J. This is a batch of eight matters before this Court. The
routes through which the different matters travelled up to the High Court
were different. Some were reference applications under Section 256(1) of
the Income-tax Act, 1961 and some were writ petitions filed before the High
Court. All the matters have stood disposed of consistently with the view
taken by the Division Bench of the High Court of Andhra Pradesh in the
leading Judgment which is reported as V.V. Trans-Investments (Pvt.) Ltd. v
Commissioner of Income-tax, 1994 (207) ITR 508 and also impugned herein. In
all the matters the question arising for decision is in substance only one
: whether the term `loss’ as appearing in Section 205(1), first proviso,
clause(b) of the Companies Act, 1956 read with Section 115 J of the Incbme-
tax Act, 1961 means “including depreciation.”

In order to appreciate the bone of contention it would suffice to state the
facts relevant to one of the assessee’s namely M/s. V.V. Trans-Investments
(P) Ltd., Hyderabad, a private limited company. The figures of net profit
and loss as per the profit and loss account of the company were as follows
:

Assessment year profit/ loss Depreciation debited to P & L account
Rs. Rs.
1987-88 (+)3,087
1988-89 (+)35,79,997 67,75,759
(profit before depreciation)
(-) 31,95,762

(loss after depreciation)
1989-90__________________(+)28,37,947___________________3,534

The assessee-company had filed its return of income disclosing `nil’ income
after setting off a part of arrears of depreciation against the current
year’s profit of Rs. 28,37,947, The contention of the assessee was that for
the accounting year relevant to the assessment year under consideration
there was no book profit after adjustment of the earlier year’s loss
against the current year’s profit. The Income-tax Officer, however,
compu_ed the book profit under section 115 J of the Income-lax Act at Rs.
8,51,380, being 30 per cent of the current year’s profit of Rs. 28,37,947
as per the profit and loss account, According to the Income-tax Officer,
for arriving at the adjusted book profit, unabsorbed depreciation or
business loss, whichever is less, is to be adjusted. Since there was no
business loss in earlier years as per the books of account, the amount to
be set off was considered as `nil’, whereas the assessee contended that
earlier year’s loss of Rs. 31,94,136 which in fact was unabsorbed
depreciation, was to bededucted from current year’s profit of Rs. 28,37,947
before arriving at the book profit under section 205 (1), first proviso,
clause (b) of the Companies Act, 1956.

The Comrnisioner of Income-tax (Appeals) and the Tribunal have upheld the
view of the Income-tax Officer. On an application made by the assessee,
question of law were framed and referred for the opinion of the High Court.
In a few other matters, a special bench was constituted by the Tribunal
forming an opinion that there was conflict in decisions of the Tribunal on
this issue. The Special Bench of the Tribunal has formed an opinion for the
assessee. The High Court has answered the reference made by the Tribunal in
favour of the department and against the assessee. In the opinion of the
High Court the term `loss’ as used in Seetion 205(1), first praviso, clause
(b) of the Companies Act, 1956 read with section 115 J of the Income-tax
Act, 1961 does not mean “including depreciation”. In other words, the High
Court has held that the assessee is entitled to deduct depreciation or loss
whichever is less only in the eventuality when in a given year there is
loss as well as depreciation. In such a case, the lesser of the two amounts
will be available for deduction as per the provisions of Income-tax Act. In
case there is profit in a year but after adjustment of depreciation it
results in loss, no adjustmet in the book profit under Section 115 J can be
allowed.

The relevant provisions to the extent relevant for the purpose of this
brder are extracted and re-produced hereunder :-

INCOME-TAX ACT, 1961

Section 115J : Special provisions relating to certain Companies :- (1) Not
withstanding anything contained in any other provision of this Act, wherein
the case of an assessee being a Company (other than a company engaged in
the business of generation or distribution of electricity), the total
income, as computed under this Act in respect of any previous year relevant
to the assessment year commencing on or after the 1st day of April, 1988,
(but before the 1st day of April, 1991) (hereafter in this section referred
to as the relevant previous year), is less than thirty per cent of its book
profit, the total income of such assessee chargeable to tax for the
relevant previous year shall be deemed to be an amount equal to thirty per
cent of such book profit:

(1A) Every assessee, being a company shall, for the purposes of this
section, prepare its profit and loss account for the relevant previous year
in accordance with the provisions of Parts II and III of Schedule VI to the
Companies Act, 1956 (l of 1956).

Explanation-For the purpose of this section, “book profit” means the net
profit as shown in the profit and toss account for the relevant previous
year (prepared under sub-section (1A), as increased by-

xxx xxx
xxx

and as reduced by-

xxx xxx
xxx

(iv) the amount of the loss or the amount of depreciation which would be
required to be set off against the profit of the relevant previous years as
if the provisions of clause (b) of the first proviso to sub-section (1) of
section 205 of the Companies Act, 1956 (l of 1956), are applicable.

(2) Nothing contained in sub-section (1) shall affect the determination of
the amounts in relation to the relevant previous year to be carried forward
to the subsequent year or years under the provisions of sub-section (2) of
section 32 or sub-section (3) of section 32A or clause (ii) of sub-section
(l) of section 72 or section 73 or section 74 or sub-section (3) of section
74A or sub-section (3) of section 80J.

COMPANIES ACT, 1956

S. 205. Dividend to be paid only out of profits. -(l) No dividend shall be
declared or paid by a company for any financial year except out of the
profits of the comapny for that year arrived at after providing for
depreciation in accordance with the provisions of sub-section (2) or out of
the profits of the company for any previous financial year or yeafs arrived
at after providing for depreciation in accordance with those provisions and
remaining undistributed or out of both or out of moneys provided by the
Central Government or a State Government for the payment of dividend in
pursuance of a guarantee given by that Government:

Provided that-

xxx xxx
xxx

(b) if the company has incurred any loss in any previous financial year or
years, which falls or fall after the commencement of the Companies
(Amendment) Act, 1960, then, the amount of the loss or an amount which is
equal to the amount provided for depreciation for that year or those years
whichever is less, shall be set off against the profits of the company for
the year for which dividend is proposed to be declared or paid or against
the profits of the company for any previous financial year or years,
arrived at in both cases, after providing for depreciation in accordance
with the provisions of sub-section (2) or against both;

XXX X X X
XXX

Section 115J was introduced in the assessment year 1988-89 to take care of
the phenomenon of prosperous zero tax companies which had continued inspite
of the enactment of section 80 VVA. There were companies which were paying
no income-tax though they had profits and were declaring dividends. A
minimum corporate tax was sought to be ensured on prosperous companies. A
plain reading of Section l15J shows that if the assessee be a company and
its total income determined under the Income-tax Act in respect of a
previous year be less than thirty per cent of its book profit, fictionally
it will be deemed that its total income chargeable to tax for the relevant
previous year was an amount equal to thirty per cent of such book profit.
The total income of the assessee shall first be computed in accordance with
provisions of Income-tax Act and if the total income so computed be less
than thirty per cent of the book profit than profit and loss account of the
company for the relevant previous year shall have to be prepared under sub-
section 1A of Section 115 J in accordance with Parts II and III of Schedule
VI of the Companies Act. The book profit so arrived at under the Companies
Act shall be suitably adjusted so as to satisfy the requirements of the
explanation. We are in this case concerned with the interpretation of
clause (iv) under the Explanation to Section 115.

Mr. Parasaran, the leamed senior advocate appearing for one of the
assessees has submitted that the court should assign such meaning to the
language of statute as would best serve the purpose sought to be achieved
by an enactment. He further submitted that speech of Finance Minister
moving the bill can be referred to for ascertaining the object behind.
Finding out and making use of parliamentary history for construing statutes
is a modern trend which is gaining ground. Under the rule laid down in
Pepper v. Hart, (1993) l, All ER 42 (HL) a Minister’s speech is admissible
as an external aid to construction. In India the decided cases have
attempted at drawing a distinction between using the Minister’s speech as a
material for finding out the mischief to be remedied and the object or
purpose of a legislation and using it for finding out the legislative
intent. The distinction has been criticised as artificial and inappropriate
with a suggestion that a time has now come to abandon it.

In the Budget Speech of 1987, the Minister of Finance referring to the
proposed Section 115J explained the rationale behind its introduction in
these words :-

“It is only fair and proper that the prosperous should pay at least some
tax. The phenomenon of so called zero tax highly profitable companies
deserves attention. In 1983 a new Section 80VVA was inserted in the Act so
that all profitable companies pay some tax, This does not seem to have
helped and is being withdrawn. I now propose to introduce a provision
whereby every company will have to pay `minimum cooperate tax’ on the
profits declared by it in its own accounts. Under this new provision a
company will pay tax on at least 30% of its book profit. This measure will
yield a revenue gain of apprbximately Rs. 75 crores.”

It appears that representations were made by and on behalf of the companies
pointing out certain hardships to companies of new projects which have just
begun to make profits and companies which having fallen sick were just
turning around the corner. The Finance Minister introduced an amendment
during the passage of the Finance Bill and said :-

“The Finance Bill inserts a new Section 115J in the Income-tax Act, 1961,
to levy a minimum tax on book profits of certain companies, Representations
have been received that in computing book profits for the purpose of
determining the minimum tax, losses and unabsorbed depreciation pertaining
to earlier years should be allowed to set off, Otherwise, new projects that
have just begun to make profits after some years of losses and sick
companies that have just turned the corner, will become subject to minimum
tax, There is merit in this suggestion. Under Section 205 of the Companies
Act, 1956, past losses or unabsorbed depreciation, whichever is less, are
allowed to be set off against the book profits of the current year for
determining profits for the purpose of declaring dividend, It is proposed
to allow the same adjustments in computation of book profits for purposes
of the new provision for levy of minimum tax.”

Mr. Parasaran also referred to a passage from A. Ramaiya’s Companies Act
(14th edition 1988, at page 1498), wherein the leaned author has referred
to the established corporate practice and opined that the word `loss’ in
proviso (b) to Section 205 (1) would include `depreciation’. In accounting
parlance and in commercial sense, the word `loss’ is always taken as
including `depreciation’ If depreciation were to be excluded the
legislature would have used the term `cash loss’, A comparison may be with
language employed in Section 3 (o) of the Sick Industrial Companies
(Special Provisions) Act, 1985 wherein a distinction is made between
“accumulated loss” and “cash loss”. The learned senior counsel also
referred to Garden Silk Weaving Factory v. CIT, 1991 (189) ITR 512 wherein
this Court has held that unabsorbed depreciation was part of loss. The
learned counsel also referred to Section 349(4)(1) of the Companies Act
which uses expression “excess of expenditure over income” which is narrower
in scope and excludes depreciation. We find substance in the submission.
There is no reason to assign to the term `loss’ as occurring in Section 205
proviso clause (b) of the Companies Act a meaning different from the one in
which it is understood there-at solely because it is being read along with
Section 115J of the Income-tax Act,

Section 115J, Explanation clause (iv), is a piece of legislation by
incorporation. Dealing with the subject, Justice G.P. Singh states in
Principles of Statutory Interpretation (7th edition,1999)-

“Incorporation of an earlier Act into a later Act is a legislative device
adotped for the sake of convenience in order to avoid verbatim reproduction
of the provisions of the earlier Act into the later. When an earlier Act or
certain of its provisions are incorporated by reference into a later Act,
the provisions sp incorporated become part and parcel of the later Act as
if they had been “bodily transposed into it”. The effect of incorporation
is admirably stated by LORD ESHER, M.R. “If a subsequent Act brings into
itself by reference some of the clauses of a former Act, the legal effect
of that, as has often been held, is to write those sections into the new
Act as if they had been actually written in it with the pen, or printed in
it. ” (p.233)

“Even though only particular sections of an earlier Act are incorporated
into later, in construing the incorporated sections it may be at times
necessary and permissible to refer to other parts of the earlier statute
which are not incorporated. As was stated by LORD BLACKBURN: “When a single
section of an Act of Parliament is introduced into another Act. I think it
must be read in the sense it bore in the original Act from which it was
taken, and that consequently it is perfectly legitimate to refer to all the
rest of that Act in order to ascertain what the sections meant, though
those other sections are not incorporated in the new Act”. (p.244)

Once we have ascertained the object behind the legislation and held that
the provisions of Section 205 quoted hereinabove stand bodily lifted and
incroprotaed into the body of Section 115J of the Income-tax Act, all that
we have to do is io read the provisions plainly and apply rules of
intrerpretation if any ambiguity survives. Section 205 (1), proviso clause
(b), of the Gompanies Act brings Out the unabsorbed portion of the amount
of depreciation ollreday provided for comeputing the loss for the years.
The words “the amount provided for depreciation” and “arrived at in both
cases after providing for depreciation” make it abundantly clear that in
this clause `loss’ refers to the amount of loss arrived at after taking
into account the amount of depreciation provided in the Profit and Loss
Account. The significance of the formula prescribed in clause (b) of the
proviso to Section 205 (1) of the Companies Act can well be demonstrated by
two examples as given hereunder :-

Example amount of profit/loss amount of depreciation provided loss for
the year after taking into account the depreciation

2) (+) 1 lac (-) 1 lac 3 lacs 3 lacs 2 lacs 4 lacs

In example – (1) Rs. 3 lacs is the depreciation. Rs. 2 lacs is the loss
after taking into account the depreciation. The loss being lower than the
amount of depreciation, it will be taken into account for set off against
the profit of the year in which dividend is to be declared. In example –
(2) Rs. 3 lacs is the depreciation. Rs. 4 lacs is the amount of loss after
taking into account the depreciation. The depreciation being lower than the
amount of loss, Rs. 3 lacs is to be taken into account for set off against
the profit of the year for which dividend is to be declared. We are of the
opinion that the term `loss’ as occurrig in clause (b) of the proviso to
Section 205 (1) of the Companies Act has tb be understood and read as the
amount arrrived at after taking into account the depreciation. Then alone
the formula prescribed in this clause would make sense and it would be
consistent with object sought to be achieved by enacting Section 115J of
the Companies Act, 1961. If `loss’ were to be taken as pre-depreciation
loss then the resultant eomiputation will not be in conformity with the
tenor of the provisions of Section 205. The language of clase (b) of the
proviso to Section 205 (1) is clear. It applies to those cases where the
depreciation has been provided in accordance with the provisions of sub-
section (l) of Section 205. The depreciation is provided for in the Profit
and Loss Account. The loss is arrived at after taking into account the
depreciation provided. It is therefore clear that the word loss as used in
proviso clause (b) to Section 205 (1) singifies the amount arrived at after
taking into account the amount of depreciation and it has to be so read and
understood in the context of Section 115J of the Incorme-tax Act, 1961. We
do not agree with the view taken by the High Court that in case there is
profit in a year but after adjustment of depreciation it results in loss,
no adjustment in the book profit under Section 115J can be allowed. The
view taken by the High Court would partially defeat the object sought to be
achieved by Section 1l5J of the Income-tax Act, 1961. We also do not agree
with the High Court saying that having lifted Section 205 (l)(b) from the
Companies Act into Section 115J of the Income-tax Act, there is no occasion
to refer to the Companies Act, 1956 at all.

For the foregoing reasons, C.A. Nos. 4471 of 1995, 4472 of 1995 and C.A.
Nos. 180-181 (NT)/95 filed by (1) M/s Surana Steels Pvt. Ltd., (2) V.V.
Trans-Investment (P) Ltd., Hydrabad and (3) M/s Binjusaria Metal Box Co.
Pvt. Ltd., Hyderabad, respectively are allowed. The order under appeal
passed by the High Court of Andhra Pradesh is set aside.

C.A. No. 7589 (NT) of 1997 is directed against order dated 31.7.96 passed
by the High Court rejecting the application under Section 256(2) of the
Income-tax Act, 1961 filed by the assessee seeking a reference on similar
questions of law and upholding rejection of similar application under
Section 256(1) by the Tribunal. The High Gourt and the Tribunal both have
opined that no referrable question of law arose. The appeal stands allowed
and the questions sought to be referred by the assessee stand answered in
accordance with the view taken by us hereinabove.

G.A. No. 1663/97, SLP Nos. 12388/97 and 13429/97, all preferred by the
Revenue, are dismissed.

 

 

 

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