# ·980 S. G. MERCANTILE CORPN. (P) L1D v. TilE C.I.T., CALCUTI' A

- **Citation:** [1972] 2 S.C.R. 980
- **Court:** Supreme Court of India
- **Decided:** 1972-01-04
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/980-s-g-mercantile-corpn-p-l1d-v-tile-c-i-t-calcuti-a-5586
- **Pages:** 12

## Headnote

·980
S. G. MERCANTILE CORPN. (P) L1D.
v.
TilE C.I.T., CALCUTI' A
January 4, 1972
.[J. M. SHELAT, I. D. DuA, H. R. KHANNA AND G: K. MITTER, JJ.]
Income Tax Act; 1922, ss. 10, 1~ompany formed with the object
of acquiring or taking on lease laltds buildings et'C. c:nd dealing with them
.commercially-Company taking on lease market place and letting it outIncome from the leasehold property whether to be assessed unde s. 10
or s. 12-..:.Tests for petermtning.
·
The appellant company was formed with the object, inter alia, to pur-
.c:hase, take on lease or otherwise acquire and to hold, cultivate, improve,
lease, sell, exchange, mortgage, or otherwise dispo_e of lands or houses
. .and other real and personal property and to deal with the same commercially. The company took on lease a market place on a monthly rent with
the right to sub-let the different pOrtions. The company's aCtivity ,dl¢ng
the period covered by the assessment years 1956-'56, 1957-'5& '3Ild 195p-'59
was that of developing the demised premises and letting out the portions
of the same as shops, stalls and ground space. In assessment proceedings,
the company claimed that its income from the lease hold property fqr the
.assessment years had to be assessed under s. 10 of the Income T!!X Act.
1922 as Jeiting om of properly was its business authorised by the, ¢emorandum of association. The b_lcoroe Tax Officer, and the Appellate A,8sistant Commi sioner in appel, rejected the
company's claim and· made
assessment under s. 12 of the Act as "income· from other .source." The
.appellate Tribunal held that the income of the appellant company from
sub-letting of the stalls was income from business· taxable under s. 10 of
the Act.
According to the Tribunal the decision could only tum 1,1pon
the object for which the company was formed and upon the activities·. of
the company during the relevant accounting years.
The High COurt,
·~n
reference, answered that the income was not assessaole under s.: 10. · It
observed that by letting out shops and stalls· the assessee could not bo said
to be carrying on any activity in the nature of trade or was dealing with
. them commercially.
In appeal by ~pecial leave,
HELD: The income was assesSable under s. 10 and not under s. 12
·Of the Act.
(i) There is no finding in the pr~ent case that the appellant company
is the owner of the property in question or any part thereof. Therefore,
s. 9 does not apply. The liability under s. 9 of the Act is of the owner
of the buildings or lands appurtenant thereto. In case the assessee is the
owner he -would be liable to pay tax under s. 9 even if the object of the
assessee in purchasing the landed property was to promote and develop
market thereon. It would also make no difference if the assessee was
a company which had ~en incorpdrated with the object of buyi1.1.& and
developing landed properties and promoting and setting up market thereon.
The income derived by such a company from_ the tenants .of the
shops and stalls constructed on the land for the purposes of settmg .up
market would not be taxed as "business income" under s. 10 of the Act.
.[985 D-G]
East India Housing Esta~ case, [1961] 42 J.T.R. 49, referred to.
;
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S. G. MERCANTILE CORP. v. C.I.T. (KJumna, /.)
(ii) Section 12 which deals with the residuary head of income can
be resorted to only if none of the specific heads is applicable to the income
in question. Therefore, s. 12 can be invoked in the present case only if
the applicaoility of s. 10 is excluded by holding that the income of the
appellant company from the p!'OJX'rty in question is not income from
J>usiness. [987 D)
(iii) The dcfinitio:1 of the word "business'' in s. 2(4) embraced within itself dealing in real property as also the activity of taking a property
on lease, setting up ·a market thereon and letting out the shops and stalls
in the market. The important question which arises in ~e latter case is
whether the acquisition of the property on leas<! a

## Text

·980
S. G. MERCANTILE CORPN. (P) L1D.
v.
TilE C.I.T., CALCUTI' A
January 4, 1972
.[J. M. SHELAT, I. D. DuA, H. R. KHANNA AND G: K. MITTER, JJ.]
Income Tax Act; 1922, ss. 10, 1~ompany formed with the object
of acquiring or taking on lease laltds buildings et'C. c:nd dealing with them
.commercially-Company taking on lease market place and letting it outIncome from the leasehold property whether to be assessed unde s. 10
or s. 12-..:.Tests for petermtning.
·
The appellant company was formed with the object, inter alia, to pur-
.c:hase, take on lease or otherwise acquire and to hold, cultivate, improve,
lease, sell, exchange, mortgage, or otherwise dispo_e of lands or houses
. .and other real and personal property and to deal with the same commercially. The company took on lease a market place on a monthly rent with
the right to sub-let the different pOrtions. The company's aCtivity ,dl¢ng
the period covered by the assessment years 1956-'56, 1957-'5& '3Ild 195p-'59
was that of developing the demised premises and letting out the portions
of the same as shops, stalls and ground space. In assessment proceedings,
the company claimed that its income from the lease hold property fqr the
.assessment years had to be assessed under s. 10 of the Income T!!X Act.
1922 as Jeiting om of properly was its business authorised by the, ¢emorandum of association. The b_lcoroe Tax Officer, and the Appellate A,8sistant Commi sioner in appel, rejected the
company's claim and· made
assessment under s. 12 of the Act as "income· from other .source." The
.appellate Tribunal held that the income of the appellant company from
sub-letting of the stalls was income from business· taxable under s. 10 of
the Act.
According to the Tribunal the decision could only tum 1,1pon
the object for which the company was formed and upon the activities·. of
the company during the relevant accounting years.
The High COurt,
·~n
reference, answered that the income was not assessaole under s.: 10. · It
observed that by letting out shops and stalls· the assessee could not bo said
to be carrying on any activity in the nature of trade or was dealing with
. them commercially.
In appeal by ~pecial leave,
HELD: The income was assesSable under s. 10 and not under s. 12
·Of the Act.
(i) There is no finding in the pr~ent case that the appellant company
is the owner of the property in question or any part thereof. Therefore,
s. 9 does not apply. The liability under s. 9 of the Act is of the owner
of the buildings or lands appurtenant thereto. In case the assessee is the
owner he -would be liable to pay tax under s. 9 even if the object of the
assessee in purchasing the landed property was to promote and develop
market thereon. It would also make no difference if the assessee was
a company which had ~en incorpdrated with the object of buyi1.1.& and
developing landed properties and promoting and setting up market thereon.
The income derived by such a company from_ the tenants .of the
shops and stalls constructed on the land for the purposes of settmg .up
market would not be taxed as "business income" under s. 10 of the Act.
.[985 D-G]
East India Housing Esta~ case, [1961] 42 J.T.R. 49, referred to.
;
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S. G. MERCANTILE CORP. v. C.I.T. (KJumna, /.)
(ii) Section 12 which deals with the residuary head of income can
be resorted to only if none of the specific heads is applicable to the income
in question. Therefore, s. 12 can be invoked in the present case only if
the applicaoility of s. 10 is excluded by holding that the income of the
appellant company from the p!'OJX'rty in question is not income from
J>usiness. [987 D)
(iii) The dcfinitio:1 of the word "business'' in s. 2(4) embraced within itself dealing in real property as also the activity of taking a property
on lease, setting up ·a market thereon and letting out the shops and stalls
in the market. The important question which arises in ~e latter case is
whether the acquisition of the property on leas<! and lettinl! out of the
shops and sfalls wa~; in th') course of investm:!nt or whether it was ·~sen·
tially a part of the business and trading operation of the ass~ssce. The
paramount consiri•~ration which would weigh is whether the acquisition
of the property was by way of investment and whether the
property
was let out b->..cause of the a sessee having a title in the same, or whether
the acquisition 'lnd letting out of the property constituted business and
trading activity of the asses9!e. The question as to whether the activity
is being carried on by an individual or il company and in the latter case
the further question as to whether carrying on of the said activity was
the object of the incorporation of tlw company as given in tm Memorandum of Association would also have some relevance; &987 E-H]
The conclusion of the Tribunal that the activities of the appellant
in taking lease and sub-letting demised premises were undertaken with
the object of doing business was warranted on the facts of the case.
Lik:ewil>·~ the conclusion of the Tribunal tlnt the a!)t)ellant cdmpany in
letting out the lease-hold prooerty was not actin~ a~ owner but as trader
was borne out bv the material on record. [990 Bl
Commissioner of Inland Revenul!!· v. Korean Syndicc.'te Ltd., U92t]
12 Tax Cas. 181 and KaranDura Develo,ment Co. Ltd. v. Comml.rrioner
of Income-tax, West Bengal [1962) 44 I.T.R. 362, referred to.
Fry v. Salisbury /{014e Estate Ltd .. [1930) A.C. 432 an,d East India
Housin~ Estate cas:, [ 1961)42 I.T.R. 49, distinguished.
{iv) Therefore. where, as in the !)resent case the income can ap'ropriately fall under s. 10 as bein~ busineliS income. no resort ~an be made
to s. 12 of the Act.
CIVIL APPELLATE JURISDICTION: Civil A!)peals Nos. 1748·
1750 of 1968.
An?eals by soecial leave from the judgment and orrler dated
July 20. 1967 of the Calcutta High Court in Income-tax Reference
No. 144 of 1963.
M. C. Chagla and D. N. Mukherjee, for the appe~lant (in all
the a?peals).
S. C. Monchrmd'l, R. N. Sachthey and B. D. Sharma, for the
respondent (in all the appeals).
H
The Judgment of the Court was delivered by
Kh~n~ J.-Th.is it~don1ent would disoose of civil apoeals
No. 1748 to 1750 o( 1968 filed
by
special
leave
against
J.S -L7J(jS .P Cl/7:
982
SUPilEME COURT REPORTS
. }1972] 2 S.C.R.
the judgment of the Calcutta High Court whereby the question
referred to that Court under section 66 ( 1 ) of the Indian Incometax Act, 1922, hereinafter referred to as the Act, was answered
. in favour of the revenue and against the appellant company.
The appellant, a private limited company, was incorporated
A
on January 25, 19~5. The objects for which the Company was
B
established were given in the clauses of paragraph 3 of the Mem().
randum of Association.
A number of business activities were
mentioned- in thpse clauses.
Clauses 6 and 7 of that paragraph
were as under :--:---
"6. To purchase take on lease or otherwise .acquire
and to hold, cultivate, improve, lease, sell, exchange,
C
mortgage, or, otherwise, dispose of land, houses, mines,
minerals, mining and other real and personal property
and to deal with the same commercially.
7. To develop the resources of the same property
by building, reclaiming, clearing, draining, and otherD
wise improving framing and planting on any terms or
system that may be considered advisable."
With effect from February 5, 1955, the appellant company
took on lease a market place known as TaJ·oUa Bazar in the
city of Calcutta from Shrimati Sujata Tagore and her sons on
a monthly rent of Rs. 3,000 for a term of 50 years, with option
E
to the lessee to renew the lea<~e for the further period of 40 years.
The deed of lease in this connection was executed on September 5,
1956. Clauses 4, 5 and 13 of the lease deed were as u::der:
"4. The Lessee shall have the option to e;.ect, rebuilt,
remodel and reconstruct and repair the existing structures upon the demised premises from time to time during the tenn of these presents at its own costs in a substantial and workmanlike manner whh good material
of the several kinds in accordance with the plans elevations sanctions and specifications according to the
choice of the Lessee (and whenever necesc;arv to get
such plans sanctioned by the Corporation of Calcutta)
under the supervic;ion of a first class Engineer to he
elected by the Lessee on notice to the Lessors and shall
spend upon such works such sum or sumo;; as the Lesc;ee
may in its absolute discretion think fit and proper but
the entire total sum or sums so to be expended by the
Lessee as aforesaid sh::tll not be less than R:upees Five
Lacs and the same shaH be spent within the period of
five years from date of these presents.
The Lessors
shall be at liberty to appoint at their own costs a valuer
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S. G. MERCANTILE CORP. v. C.I.T. (Khanna, J.)
983
and surveyor to verify such expenditure if required for
their satisfaction after the completion of the said work.
5. If the Lessee constructs any new structures and/
or buildings as mentioned in the preceding clauses the
said structures and/or buildings or erections together
with all alterations renovation remodelling reconstruction thereto shall belong absolutely to the Lessors on
the expiration or sooner determination of the
term
hereby granted and/ or the renewed period thereof as
hereinafter mentioned.
13. That the Lessee shall not assign this
lease
without first obtaining the permission in writing of the
Lessors but such consent shall not be unreasonably
withheld.
The lessee shall prior to any such assignment of this demise give notice thereof to the Lessors
in writing containing the name of the assignee and f'qrnish other necessary particulars concerning sucb assignlllent.
Notwithstanding anything
hereinbefore
contained the Lessee shall subject to the conditions and
convenants herein contained he entitled to sublet or
underlet the demised premises or any part or portion
thereof and/or grant sub~lease ·or sub-leases in respect
of the demised premises or any portion or portions
thereof for a term not exceeding or beyond the tenn
hereby granted including the renewed and/or optional
period in case of renewal subject to the terms and conditions of these presents."
The appellant company's activity during the period covered
by assessment years 1956-57, 1957-58 and 1958-59 was that
of developing the demised premises and letting out portions of
the same as shops, stalls and
ground spaces to
shopkeepers,
stallholders and daily casual market vendors.
The
appellant
claimed that its income from the leasehold property for the above
mentioned three assessment years should be a~sessed under section 10 of the Act as letting out of that property was its business
authorised by the Memorandum of Association.
The appellant
had shown losses in its return for all the three years and the
above claim was made on its behalf obviously for the purpose
of carrying forward such losses. The Income-tax O"fficer rejected the appellant's claim and made assessments under section 12
of the Act. · The Appellate Assistant Commissioner in appeal
by a consolidated order held that the appellant had been rightly
assessed under section 12 of the Act.
On further appeal to the
Income-tax Appellate Tribunal, the Tribunal referred to clauses
6 and 7 of paragraph 3 of the Memorandum of Association and
984
SUPREME COURT REPORTS
[1972] z·s.c.P..
came t.o the conclusion that the activities of the appellant com~
pany in taking the lease and subletting the demised premis~
were undertaken with the object of doing business. The Tribunal
observed that normally where the assessee was not the owner of
the buildin_g ~t eavned rent by subletting the same, such income
could only be charged under section 12 as income from other
sources.
The difficulty, however, arose in cases where letting
out of lease hold property was the business of the assessee.
In
such cases, according to the Tribunal, the decision could only
turn upon the object for which the company was formed and
upon the activities of the company during the relevant accounting·
years. It was held that if the activity of the appellant company
amounted to carrying on the business of taking on lease and
letting out the leasehold property, the company was not acting
as owner but as trader.
The income accruing from such a
source, in the opinion of the Tribunal, must be held to be income
from business assessable under section 10 of the Act. The Tri- ·
bunal accordingly held that the income of the appellant company from subletting of the stalls in question was income from
business taxable under section 10 of the Act.
At the instance of the res,!)ondent, the Tribunal referred the
followi..<tg question to the High Court :
"Whether, under the facts and in the circumstances
of the case, the income from subletting the stalls of
Taltolla Bazar was assessab1e under section 10 or sec
tion 12 of the Income-tax Act, 1922?"
The learned judges of the High Court held that the income
from subletting of the stalls in question was not assessable under
section 10 of the Act. In arriving at this conclusion, the learned
judges 0bserved :
"The assessee had taken lease of a market or Bazar.
After having reconstructed or renovated the buildings,
it is letting out shops and stalls to shopkeepers and
st~llholders. This is a normal activity of a owner or a
lessee of such a _market or Bazar. It could not be said
that by letting out the shops and stalls to shopkeepers
• and stallholders, the assessee was carrving on any activity in the nature of trade and was utilising or exploit~
ing real estate in the best
possible way or in
other
words was dealing with it commercially. The ratio of
the Supreme Court decision in
East India Houfif!~t
Estate case(!) is fullv af}olicabl~ to the case before
us and it must be held that the Tribunal was in error
in its conclusion that lhe income of the assessee -fi6m
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s. G. MERCANTILE CORP. V. C.I.T. (Khanna, J.)
985
subletting the stalls of !altolla Bazar was assessable under
section 10 of the ~ndtan Income-ta~ Act, 1922. In the
premises the .questton referred .to thts Court is answered
in the followmg manner, that ts to say, that the income
from subletting the stalls of Taltolla Bazar was not
assessable under section 1 0."
We have heard Mr. Chagla on behalf of the appellant and
Mr. Manchanda on behalf ?f the respondent and are of the view
that the judgment of the Htgh Court cannot b<! sustained. Section
6 of the Act enumerates the various heads of income, profits and
gains chargeable to i~c?me-ta~:. Those heads are (i) Salaries;
(ii) Interest on secunttes;
(m) Income from
property; (iv)
C Profits and gains of business, professions or vocation; ( v) Income from other sources; and (vi) Capital gains.
Section 9 of the Act deals with income from property. According to that section, the tax shall be payable by an assessee
under the head "Income from Property" in respect of the hona
D fide annual value of property consisting of any buildings or lands
appurtenant thereto of which he is the owner, other than such
portions of such property as he may occupy for the purposes of
any business, profession or vocation carried on by him the profits
of which are assessable to tax, subject to certain allowances which are mentioned in that section but wirh which
E we are not concerned. It is noteworthy that the liability to tax
under section 9 of the Act is of the owner of the buildings or
lands appurtenant thereto. In case the assessee is the owner of
the buildings or lands appurtenant thereto, he woul~ be liable
10 pay t~:t under the above provic;ion even if the object of the
assessee m purchasinn the landed property was to promote .md
develop market thcr~n. It would also make no differenc~ if the
f
~~>;essee was .a company which liad been inco;porated wtth ~be
lect of buysng and developing landed propertrcs and promotrng
and_ '\ettinj! uo m:trkets thereon. The income derived by such a
COmpany from the tenants of the shops and staUs, con~tructed
~n the land for the purooses of setting uo market. would not .be
~ ;x.ed as "business income" under section 10 of th'! Act, to whtch
kt~ore det1iled reference would be made hereafter, but under
td ~on 9 of the Act.
A concrete ir"'ance of thi<: tvne i<: aff~•d
r, Y the ca~e of ,::,.1 '"'na /frtu•;,v nnd Ln"" Dev,.lnnment
flr( Lt1
W •
8"~n1/( I)
lhe a.,
· v. Commisri'>ner nf f,cnm~-tax,
e~.
~
. ·
the ob· l'lcllant comnanv in th:tt cnc:e h'~d bce11 incornorated ~·th
ll and ~~:~ ·~ of buvi11~ dcvcJ,.,..,i.,g larrded prnner•ie~ and or~motm~
. . land · i~ l'l~ uo m:~rke•~. The comr.>anv. purch1<ed ten h•!tha~ .,f
l
qu~tio th~ ~own of C<>lcutt'l noel <;et uo a market thereon; The
-( •
11 Which aro~e for detennination was whether the mcome
\} (19 --;:;=-=----
6lJ4l I.T.R.. 49
986
SUPREME COURT REPORTS
[1972]. 2 S.C.R.
realised from the tenants of shops and stalls was liable to be
taxw as business income under section 10 of the Act or income
from property under seclion 9. This Court held that the ln.come
derived by tne company from shops and stalls was income recei~
ved from property and fell under the specific head described in
sec lion 9. it was observed in this connection :
"Income-tax is urldoubtedly. levied on the total
taxable income of the taxpayer and the tax levied is a
single tax on the aggregate taxable receipts from all
the sources; it is not a collection of taxes separately
lev1ed on distinct head$ of income.
But the distinct
heads specified in secLion 6 indicating the sources are
mu~ually exclusive and income derived from different
sources falling under specific heads has to be computed
for the purpose of taxaLion in the manner provided by
the appropriate section. If the income from a source
falls within a specific head set out in
section 6, the
fact ~hat it may indirectly be covered by another head
will not make the
income taxable
under the latter
;head.
The income derived by the company from shops
and stalls is income received from property and falls
under the specific head described in section 9.
The
character of that income is not' altered because it is
received bY a company formed with the object of developing and setting up markets."
There is no finding in the present case that the
appellant
company is the owner of the property in question or any part
thereof.
As such, no reference was made to section 9 of the
Act in the assessment proceedings. The learned counsel for both
the parties agree, and in our opinion rightly, that the question
of making the assessment against the appellant, in the circumstances under section 9 of the Act does ;not arise. The stand of
Mr. Chagla, on behalf of the appellant, is that the assessment
against the appellant in respect of the income from the property
in question should be made under section 10, while according
to Mr. Man~handa, learned counsel for· the respondent, the
assessment should be under sedon 12 of the Act.
Section 10 of the Act deals with in com~ from business and
the material uortion with which we are concerned is given in
sub-section ( i) of that section.
According to that sub-section,
the tax shall be payable by an assessee under the head "Profits
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S. G, :MERCANTILE COJlP, l': C.LT. (Khanna, ] . .)
8S7
and gains of ~u~ness, prof~sion. Qr v~tion". in ·re&~t of ~he
profits and gains of any busmess, professton or vocat~on earned
on by him.
"Business':, according to section 2(4) ·of the Act,
includes any trade, commerce, or manufacture or any adventure
or concern in the nature of trade, commerce or manufacture.
Section 12 of the Act deals with income from other sources.
Sub-section ( 1) of that section reads as under. :
" ( 1) .The tax shall be payable by an assessee under
the head "Income from other sources" in ·respect of
income, ·profit and gains of every kind which may be
ipcluded ih his total income (if not included under any
Of the preceding heads.),
Section 12 deals with the residuary head of
income and
applies to all such taxable income, profits and gains as are not
covered by preceding specific heads. The residuary head of income can be resorted to only if none of the specific heads is
D
applicable to the income in question; it comes into operation
oruy after the preceding heads are excluded.
It is, therefore, manifest that section 12 of the Act can be
invoked in the present case only if we exclude the applicability
.of section 10 by holding that the income of the appellant comE
pany from the property in question is not income from business.
The definition of the word "Business", as giv~n in section 2( 4)
and reproduced above shows its wide amplitude and we agree
with Mr. Chagla that it can embraee within itself dealing in real
property as also the activity of taking a property on lease, setting
up a market thereon and letting out the shops and stalls in· the
I' market.
The important . question which arises in the latter case
is whether the :.acq~isition of the property on lease and letting
out of the shops· and stalls was in the course of investment or
wheth~r it was essentially a part of the businesc; and
tra<Jing
operation of the assessee.
The · paramount consideration which
would ~eigh is whether the acquisition of the property was by
G
way of mvestment and whe•her the property was let out because
o.f the assess~ having a title in the· same ?r whether the acquisition and lettmg out of the property constttuted the business and
trading activity of the assessee. The question as to whether the
above activity is being carried on by an inrlividual or a com.,anv
and in the latter case, the further Q·uestion as to whether th~
H .. carrying on of the said activity wa5 the object of the. incorooratio.n of the company as giv~n in the Memorandum of Association
would also have some relevance. Reference iii thic; context ·may
be .made to the observations· of Lord Stem4a}e, M.·R. in~ case
988
[1972] 2 S.c.R.
of· Commissioners. of -Inland Reven.ue
Ltd.(l) :
v.
Korean
Syndical~
i·
"If . you once get the individual and the company
spending exactly on the same -basisJ then there would
· be no difference between them at all.
But the fact
that the limited company comes into existence in a
'different way is a matter to be considered. An individual comes into existence for many purposesJ or perhaps sometimes for noneJ whereas a limited company
comes i~to 'existence for the particular purpose of carrying out a t an action by get mg. possessiJn of concessions and turning them to accountJ then that is a matter
to be con.>idered when you come to decide whether
doing that is carrying on a business or not."
''The· abOve observations were quoted with approval 'by this Court
in the case of Karanpura Development Co. Ltd. v. Commissioner
of Income-tax, West Bengale). The' assessee company in the
last mentioned case was formed with the objects, inter alia, of
acquiring and disposing of underground coal mining rights in
certain cJa. field>.
The Mem::>randum of Association of the
company enumerated other objects, such as coal raising, but the
assessee restricted i~s activities to acquiring coal mining leases
over large areasJ developing· them as coal fields and then subleasing them to collieries and. other companies. · The [eases were
acquired for a term of 999 years and the coal fields were sublet
for the balance of the term of the respective leases minus two
days.
The company never wxked the coal fields with a view
to raising coal, nor did it acquire or sell coal raised by the sublessees.
As a'!ainst a, salami of Rs. 40 per bigha which. the '·
a~sessee had paid, it realised from the sub-lessees Rs. 400 per
bigha as sal-ami.
In ~ddition, the assessee c)larged certain royal;.
ties at r~tes higher than those it had aqreed. to pay u.nder the
brad , leases.
The question . which arose for determination was
whether the amount received bv the assec;see as salami for granting sub-lease consti~ut~d trad~ng receipts and the profits therefrom was assessable.
It was held that the tran<:actions of,a.cQuir-
,ing ]eases anri e:rantinq sub-leao;es were in the nature of trading
with;n the obj~cts of the company and not enjoyment of the property as landowner.
It_was observed in this connection:
"As has been already . oointed out in connection ,
with the other two cases wnere there is a let•im! out of '
premises and collection of rents the assessment on property, oasis mav be correct but n,ot so, where the letting
. (1) rt92iJ 12 Tax Cas. 181.
(2) [1962] 44 I.T.R. 362.
A
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il
S. G. MER.CANnLE COR.P. v. c.r.T. (Khanntl. J.)
J.l.
or subletti.DJt is part of a trading operation. The divid·
ing line is difficult to find; but in the case of a company
wtth its professed objects and the manner of its acti·
vities and the nature of its dealin~s with its property_
it is possible to say on which side the operations fall
and to what head the income is to be assi~ned.
Ownership of property and leasing it out may be
done as a part of business, or it may be done as landowner.
Whether it is the one or the other must necessarily depen.d· upon the object with which the act is
done.
It rs not that no company can own property and
enjoy it as property, wh·~ther by itself or by giving 1he
use of i'l: to another on rent.
Where this happens, tthe
appropriate head to apply is "income from property"
( sec'tion 9), even though the company may be doin~
extensive busine>s othe· wise. But a company formed with
the specific object oi acquiring properties not with the
view to basing them as prope~ty but to selling them or
turning them to account even by way of leasing them ou~
as an integral part of its bushes~, cannot be said to treat
them as landowner but as trader."
The above observations have a
direct bearing. It is not
necessary for the purpose of this case to say anything, br~yond
what has already been said while dealing with s-ection 9 of the
Act, about the view exptessed in the above passage regarding
the rental income of an owner bein!Z treated as business income
in case it is reooived as :pa"rt of trading activity, because we are
concerned in the in<;~tant' case with an assessee who is lessee and
not the owner of the property in question.
The assessee in the
cited case of Karanpura Development Co. Ltd. too was 1essee of
the coal fields.
So far as such ac;seo;seeo; aN concerned, who as
part of their essential trading activity take le1Se . of p;o"e Jy and
sublet parts thereof with a view to make profits, the dictum l<dd
down above, in our ooinion, !would hold good and ~e profits
would have to be trearted as business income.
.' ,
.
'lite appellant ccmpa1'1)', as stated earlier was incorp•ratcd
on January 25, 1955.
·Th·~ obier.t: for which the comoany was
formed, inter alia, was to tak~ on lease or otherw;se acquire and
to hold, improve, lease or otherwise dispOse of, la11d, houses and.
other real ancl oersonal oropertv and to deal ·vith the same com·
mercially.
Within less than two weeks of its incorporation the
·appellant comoanv took on lease the orooertv in question·. and
undertook to soend R "· 5 Iakhs for the ouroo-se of remodelling
and reoairin!!' the structure on ~he site.
The appel]ant was also
given the right to sublet the different portions.
The appellant's
9.9.0
SUPREME OOVRT RBPOJt,T~
·[1972]2 S.C.R.
activit}' during . the period of· three years in question consisted of
devetopmg, lhe aemised property and letting out ponions of the
same as shops, stalls and ground spaces.
All the.;e facts point
to the conclusion that the takinj!; of the property on lease and
subletting portions of the same · was part of the business
and
tradinj!; activity of the appellant.
The conclu.sion of the Tribunal
that the activi1ies of the appellant in takinj!; lease and subletting
the demised premises were undertaken with the object of doing .
business was warranted on 1he facts of 'the case.
Likewise, the
conclusion of the Tribunal that the aooellant company in letting
out the leasehold property was not acting as owner but as tl ader
was borne out by the material on record.
Reference on behalf of the respondent has been made by Mr.
· Manchanda to the decision of the H.use of Lords in Frv v. Salisbury House Estate Ltd. (1 )
In that case the assessee· company
which had been formed to acquire, manage and deal with a block
of buildl11gs, let out the rooms as unrurnished offices to tenants.
The company provide1 a staff to operate the lifts and to act as
porters and watch and protect the bui ding.
The c-mpany al5o
provided certain se~vices--such as heating and cleaning-for the
tenants if required, at an additional charge. For four years the
company was assessed under Schedule A to income-lax on the gross
value of the building as appearing in the valuation lic;t. The company admitted its liability to be assessed in respect of profits from
the service supplied to the tenants under Schedule D, but he Cro~n
claimed in makin~ the assessment under Schedule D Ito include
the rents of the offices as part of · the receipts of trade, making
allowance for tax assess•.xl under SChedule A. It may be men ioned
that the -scheme of the English Income-tax Act is tto p~ovide for the
taxation of specific properties under schedules appropriate to them
and under a general Schedule D. to provide for taxa· ion of income
not dealt with specifically. Schedule A provides for the 'taxation
of. income derived from proi>ertv. in land; B (or incom.'!s derived
from occupation of land, C for irl'come d·~rived from. Government
· . securities and E for income from employment in the public ser-
. vice. The. Ho\lc;e of Lords held in othe above citefl ca"'~ that ·he
rents were P!Ofits arising from the ownership o~ land in respect
of which the assessment under Schedule A was exhaustive and
that thev,' therefore/Could not be included in the assessment under
Schedule D as trade 're'ceipts of the company, The assec:see com·
-pany, in the cited case, was the owner of the Salisbury Houc:.e. and
-the decision of the House of Lords re.c;ted on the view that Sche-
-dule A was exhaustive in respect of profits a~isina from owne~hil>
/ of land. The above decision is not of much helo to the respandent because the assessee in the present case is not the owner
(1) ·{1930} A.C. 432.
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S. G. MERCANTILE CORP. v. C.I.T. (Khanna. /,)
99l
but only a lessee of the prOperty in· question; and section 9, which
is anruogou.§ to Schedule A of the English Act, applies to income
fwm property consistin~ of buildings orlands appurtenant ~hereto
of wtuch the assessee is the owner.
The respondent can also have not much support from the
decision of East India Housing and Land Development Trust ·V'.
Commissio11er of Income-tax(!) because what was decided therein was Lhat in the case of income from landed property by the
owner company, the income would tall under the spectfic head:
described in section 9 and not under section 1 0 even though the
company had been· incorporated with the. object of buying and
dev~Jloping landed p1 operty and
promoting a market thereon.
Section 9, as mentioned earlier, does not apply to the present
case because the appellant is not owner of the .property in question. As such there arises no question in this case of the exclu.:
sion of seotion 10 on the eround that section 9 is the specifichead.
In the instant case the revenue relies not' upon the specifichead given in section 9 but upon the residuary head given in
sectio.n 12 of t~e Act. It is p1ain that the considerations which
would weigh for applying section 9 on the ground .of being a
specific head would not hold good for invoking section 12 which
can come into picture only if all the preceding heaqs of income, ·
including b11siness incom.e as given in section 10, are ruled out.
Where, as in the present case, the income can appropriately fall
under section 10 as being business income, no resort can be made
to section 12 of the Act.
As a result of the above, we acceot the aooeal and set ac;ide
the judgmem of the High Court.
The answer to the ques'ion
referred by the Tribunal is that the income in ouestion wa~ asc;essabl•.! under section 10 and not under section 12 of the Act.
The
appellant shall be entitled to 'the costs of this Court as weU as:
th0l1e of the Hiah Court.
One hearin2 fee.
K.B.N.
Appeal allowed.
(l) [1961]42 I.T.R..~J