# COMMISSIONER OF INCOME TAX, MADRAS v. MESSRS. BEST & CO

- **Citation:** [1966] 2 S.C.R. 480
- **Court:** Supreme Court of India
- **Decided:** 1965-11-02
- **Case number:** Civil Appeals Nos. 682 and , 683 of 1964
- **Bench:** K. Subba Rao, J. C. Shah, S. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-income-tax-madras-v-messrs-best-co-3600
- **Pages:** 13

## Headnote

Income-tax Act (11 of 1922), s. 10-Assessee a 11111/ti-agency concern-One of the agencies ter1ninated lVith a restrictive covenant not to
carry on business-Co111pensation, lvhether capital or. revenue receipt.
The respondent was a multi-agency concern.
The principal of one
of the agencies tern1inated that agency and paid the respondent certain
amounts.
When the amounts were sought to be assessed to income·tax,
the respondent objected on the ground that the amounts represented only
compensation received for termination
of the
agency business and
as
consideration for the restrictive covenant not to do business in the same
line for a prescribed period.
The Income-tax Officer,
the Appellate
Assistant Commissioner and the Appellate Tribunal held against the respondent, but the High Court on a reference, held that by the termination of
the agency, the respondent lost an earning asset and that the compensa•
tion paid for the destruction of such an asset was a capital receipt not
liable to tax.
In appeal to this Court,
HELD : While the income-tax authorities have to gather the relevant
material to establish that the compensation
given
for the loss of the
age:ncy was a taxable income,
an adverse
inference could
be dra\\'n
against the assessec if he had not produced evidence
which was in his
exclusive knowledge and keeping. The respondent
gave up one of its
innumerable agencies in different lines without any protest
presumably
because it was in the normal course of ils business, and continued to do
business without any mishap. It did not place any material before the
Department to establish the relative importance of the said agency in the
frame work of tho earning apparatus of its business.
The loss of the
agency would therefore only be a normal trading loss, and the amount
of compensation attributable to it would be a revenue receipt assessable
under s. 10 of the Income-tax Act, 1922. [486 H; 487 A, C; 488 B-C]
The restrictive covenant was one of the terms of the agreement relating to consideration, and therefore the compensation paid, \Vas not only
in lieu of the giving up of the agency but also for the respondent accepting a restrictive covenant for a specific period.
Since the covenant was
an independent obligation which came into
operation only
after
the
agency was terminated and was wholly unconnected with it, that part
of the compensation attributable to the restrictive covenant was a capital receipt not assessable to tax. [491 B, C, H; 492 Al
Gillandars Arbuthnot & Co. Ltd. v. Conunissioner
of
lnco1ne-tax,
Calcutta, [1964] 8 S.C.R. 121 and Commissioner of Income-tax Madra.v
v. Chari and Chari [1965] 3 S.C.R. 692, followed.
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The apportionment of the con1pcnsation has to be made on a reasonH
able basis between the loss of the agency in the usual course of business
~nd the restrictive covenant by the assessing authority. The compensation was severable and any difficulty in apportionment
cannot
be
a
C.l.T. v. BEST & co. (Subba Rao, J.)
481
A
g_round for rejecting the claim by the revenue and the assessee for apporuonment. [492 B-D]
Wales (H. M. Inspector of Taxes) v. Tilley, (1942) 25 T.C. 136
Carter v. Wadman (H. M. Inspector of Taxes) (1946) 28 T.C. 41 and
T. Sadasivam v. Commissioner of Income-tax, (1954) 28 I.T.R. 435, referred to,
B

## Text

COMMISSIONER OF INCOME TAX, MADRAS
A
v.
MESSRS. BEST & CO.
November 2, 1965
[K. SUBBA RAO, J. C. SHAH AND S. M. S!KRI, JJ.]
Income-tax Act (11 of 1922), s. 10-Assessee a 11111/ti-agency concern-One of the agencies ter1ninated lVith a restrictive covenant not to
carry on business-Co111pensation, lvhether capital or. revenue receipt.
The respondent was a multi-agency concern.
The principal of one
of the agencies tern1inated that agency and paid the respondent certain
amounts.
When the amounts were sought to be assessed to income·tax,
the respondent objected on the ground that the amounts represented only
compensation received for termination
of the
agency business and
as
consideration for the restrictive covenant not to do business in the same
line for a prescribed period.
The Income-tax Officer,
the Appellate
Assistant Commissioner and the Appellate Tribunal held against the respondent, but the High Court on a reference, held that by the termination of
the agency, the respondent lost an earning asset and that the compensa•
tion paid for the destruction of such an asset was a capital receipt not
liable to tax.
In appeal to this Court,
HELD : While the income-tax authorities have to gather the relevant
material to establish that the compensation
given
for the loss of the
age:ncy was a taxable income,
an adverse
inference could
be dra\\'n
against the assessec if he had not produced evidence
which was in his
exclusive knowledge and keeping. The respondent
gave up one of its
innumerable agencies in different lines without any protest
presumably
because it was in the normal course of ils business, and continued to do
business without any mishap. It did not place any material before the
Department to establish the relative importance of the said agency in the
frame work of tho earning apparatus of its business.
The loss of the
agency would therefore only be a normal trading loss, and the amount
of compensation attributable to it would be a revenue receipt assessable
under s. 10 of the Income-tax Act, 1922. [486 H; 487 A, C; 488 B-C]
The restrictive covenant was one of the terms of the agreement relating to consideration, and therefore the compensation paid, \Vas not only
in lieu of the giving up of the agency but also for the respondent accepting a restrictive covenant for a specific period.
Since the covenant was
an independent obligation which came into
operation only
after
the
agency was terminated and was wholly unconnected with it, that part
of the compensation attributable to the restrictive covenant was a capital receipt not assessable to tax. [491 B, C, H; 492 Al
Gillandars Arbuthnot & Co. Ltd. v. Conunissioner
of
lnco1ne-tax,
Calcutta, [1964] 8 S.C.R. 121 and Commissioner of Income-tax Madra.v
v. Chari and Chari [1965] 3 S.C.R. 692, followed.
'
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The apportionment of the con1pcnsation has to be made on a reasonH
able basis between the loss of the agency in the usual course of business
~nd the restrictive covenant by the assessing authority. The compensation was severable and any difficulty in apportionment
cannot
be
a
C.l.T. v. BEST & co. (Subba Rao, J.)
481
A
g_round for rejecting the claim by the revenue and the assessee for apporuonment. [492 B-D]
Wales (H. M. Inspector of Taxes) v. Tilley, (1942) 25 T.C. 136
Carter v. Wadman (H. M. Inspector of Taxes) (1946) 28 T.C. 41 and
T. Sadasivam v. Commissioner of Income-tax, (1954) 28 I.T.R. 435, referred to,
B
CIVIL APPELLATE JURISDICTION:, Civil Appeals Nos. 682 and
,
683 of 1964.
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Appeals from the judgment and order dated July 24, 1961
of the Madras High Court in Case Referred No. 29 of 1957.
A. V. Viswanatha Sastri, R. Ganapathy Iyer, R. H. Dhebar
and R. N. Sachthey, for the appellant.
K. N. Rajagopa/a Sastri, G. C. Sanghi, B. R. Narwa/a and
H. K. Puri, for the respondent.
The Judgment of the Court was delivered by
Sobba Rao, J.
Messrs. Best & Co., Ltd., Madras, the respondent herein, hereinafter called the ,Agency Company, is a private
limited company carrying on business in innumerable lines.
It
is doing the business of importers, exporters, agents
and subagents of various shipping, insurance, and manufacturing companies, in the course of which it acquired numerous agencies from
manufacturers both in India
and outside for sale in India of
textiles, dairy products, engineering equipments, soaps, paints,
toilet goods, etc.
One of such agencies was from the Imperial
Chemical Industries (Exports) Limited,
Glasgow,
hereinafter
called the "Principal", for distribution and marketing in certain
territories in South India of its ammunition, blasting explosives
and accessories.
The said agency came into existence in 19.00.
The terms of the agency were not reduced to writing. The rates of
commission were paid on terms agreed upon from time to time.
The agency was termina))Ie at will; but, because of their mutual
confidence, it continued without break till the year 194 7 when
the Principal decided to transfer all its agencies in India and
Ceylon to Imperial Chemical Industries (India) Limited.
By.
hs letter dated March 11, 1947, the Principal gave notice to
the Agency Company terminating its agency from April 1, 1948.
After some correspondence, the agency was terminated on March
31, 1948, and the Principal paid certain amounts in three instalments calculated on the basis of the income earned by the Imperial Chemical Industries (India) Limited, which took over the
business from that date.
Pursuant to that agreement, the PrinLZSup.CT/66-1~
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482
SUPREME COURT REPORTS
[1966] 2 S.C.R.
cipal paid on September 30, 1949,
a sum of Rs. 34,100 as
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commission on sales during the year ended March 31, 1949, on
September 30,. 1950, a commission Of Rs. 66,790 on sales during
the year ended March 31, 1950, and on September 30, 1951,
a commission of Rs. 3,35,371 on sale5 during the year ended
March 31, 1951. During the assessment year 1950-51, the first
amollnt was brought to tax and the assessment had become final
&
and nothing turns upon it in these appeals.
But in respect of
the other two assessment years, namely, 1951-52 and 1952-53,
the Agency Company objected to the inclusion of the said
amounts in its taxable income on the ground that the said amounts
represented only compensation received for . termination of the
agency business and also as consideration for the restrictive coC
venant not to do business in the same line for a prescribed
period.
The Income-tax Officoc, in the first instance, and, on
appeals, the Appellate Assistant Commissioner held that the termination of the said agency did not alter the structure of the
respondent's business and that they represented only remuneration D
paid voluntarily by the Principal to the agent in appreciation
of its past services.
On further appeals by the· Agency Company, the Income-tax Appellale Tribunal held that, as the three
annual instalments were based on future sales in the same terriE
tory as before, they were of the same nature as the normal commission receipts of the respondent.
On that ground, both the
appeals were dismissed.
At the instance
of the assessee, the
following question was referred by the Tribunal to the High
Court of Judicature at Madras for its opinion under s. 66 (1) of
the Indian Income-tax Act, 1922, hereinafter called the Act :
"Whether the aforesaid sum of Rs. 66,790
and
Rs. 3,35,371 are assessable under Section 10 for the
F
assessment years 1951-52 and 1952-53."
A Division Bench of the said High Court, having regard to the
circumstances of the case, came to the conclusion that by the
termination of the agency the assessee lost an earning asset and
the compensation paid for the destruction of such an asset was
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a capital receipt and, therefore, not liable to tax. The Revenue,
on obtaining the necessary certificate from the High Court, has
preferred the present two appeals to ,this Court.
Mr. A. V. Viswanatha Sastri, learned counsel for the Revenue, coptended that the assessee had innumerable agencies, that
it was a normal incident in. the course of its business to give up
H
agencies. and acquire new ones, that the termination of the
agency in question was a normal occurrence in the course of its
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C.l.T. v. BEST & co. (Subba Rao, !.)
483
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business, that it had no impact on the earning assets or the structure of the business, that the alleged restrictive covenant was
only an act of grace on the part of the agent in view of the
long standing relationship between the parties and that it did not
enter into the calculation of the compensation paid to
the
assessee.
Jn short, his argument was that the said compensation
B only represented the taxable income of the assessee.
Should the
Court hold that the compensation was in part capital and in
part revenue income, the argument proceeded, the said compensation would have to be apportionedi reasonably between the said
parts.
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Mr. Rajagopala Sastri, learned
counsel
for the assessee,
advanced the argument that on a true construction of the agreement disclosed by the correspondence it should be held that the
amount received by the assessee was wholly as a consideration
for the restrictive covenant
and, therefore,
was of a capital
'nature.
Alternatively, he contended that even if the amount was
wholly paid as compensation for the loss of the agency, it was
a capital receipt, as the assessee lost a substantial source of
income in relation to the totality of its business.
On the assumpc
tion that the payment partook of a composite character, the learned counsel would say that an apportionment should be made in
proportion of the value to the assessee of the loss incurred under
both the heads, namely, the loss of the agency and the restrictive
covenant not to do business for a specified period in the same
field.
These. appeals raise the familiar question, namely, whether
a particular income arising from the termination of one of the
agencies of a multi-agency concern is a capital receipt or a
.revenue receipt.
The decisions on this question
are
legion.
Eminent judges in India as well as in England expressed their
inaoility to lay down a precise principle of universal application,-
bu.t were able to evolve some workable rules of guidance. The
difficulty is inherent in the problem itself.
This Court in a
G
recent decision has surveyed the entire field and, therefore, no
useful purpose will be served to cover the ground over again.
That case is Kettlewell Bullen & Co. Ltd. v. Commissioner of
Income-tax, Calcutta(').
There, this Court, speaking through
Shah, J., expressed its conclusion thus :
H
"Where, on a consideration of the circumstances,
payment is made to compensate a person for cancel-
(I) [1964] 8 S.C.R. 93
484
SUPREME COURT REPORTS
[1966] 2 S.C.R.
lation of a contract which does not affect the trading
A
structure of his business, nor deprive him of what in
substance is his source of income, termination of the
contract. being a normal incident of the business, and
such cancellation leaves him free to carry on his trade
(freed from the contract terminated)
the receipt is
revenue : where by the cancellation of an agency the
trading structure of the assessee is impaired, or such
· cancellation results in loss of what may be regarded as
the source of the assessee's income, the payment made
to compensate for cancellation of the agency agreement is normally a capital receipt."
But the difficulty still remains in the application of the said
principle to the facts of each case. In Gillanders Arbuthnot and
B
c
Co. Ltd. v. Commissioner of Income-tax, Calcutta(') this Court
applied the said rules to the facts of that case, which, by and
large, are similar to the facts in the present case. It would,
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therefore, be useful to notice briefly the facts of that case. There,
the appellant company carried on business in diverse lines : acting
as managing agents, shipping agents, purchasing agents, and
secretaries, the company also acted as importers and distributors
oh behalf of foreign principals and bought and sold on its own
E
account.
Under an unwritten agreement which was terminable
at will the appellant acted as sole agents and distributors of explosives manufactured by the Imperial Chemical Industries (Export)
1.-td. That agency was terminated and by way of compensation
the Imperial Chemical Industries (Export) Ltd. paid for the first
three years after the termination of the agency two-fifths of the
commission accrued on its sales i!'1 the territory of the appellant's
agency computed at the rates at which the appellant had formerly
!been paid and in addition in the third year full commission for
the sales effected in that year at the same rates.
The Imperial
'Chemical Industries (Exports) Ltd. had intended to take a formal
undertaking from the appellant to refrain from selling or accepting any agency for explosives or other competitive commodities,
but no such agreement in writing was taken or insisted upon. The
question was whether the amounts received by the appellant for
those three years were of the nature of capital or revenue. This
Court held that the amounts paid were of the nature of income
an.d, therefore, assessable to tax.
The reason given for that condusion was that, having regard to the vast array of business done
--·-----
(!) [1964] 8 S.C.R. 121
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\ .....,,,_.
"
C.I.T. v. liEST
0
& co. (Subba Rao, J.)
485
A
by the appellant as agents, the acquisition of agencies was in the
normal course of business and determination of individual agencies a normal incident not affecting or impairing its trading structure.
The material facts of that case are on all fours with the
present case.
Indeed, the Principal in both the cases was the
same and the agency terminated was also a similar one.
The
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compensation given was worked out on the same lines. The only
difference is that in that case it was not found that the restrictive
•.
covenant entered into the bargain.
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This Court again reiterated the same principle in Commissioner of Income-tax, Madras v. Chari & Chari Ltd.('). But,
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on the facts of that case, it came to the conclusion that the compensation paid for the loss of agency was a capital asset.
There,
Shah, J., speaking for the Court, said :
D
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F
G
"In Kettlewell Bullen and Co.'s case(') this Court
pointed out that ordinarily compensation
for loss of
office or agency is regarded as a capital receipt, but
the rule is subject to an exception that payment received
even for termination of an agency agreement, where the
agency is one of many which the assessee holds, and
the termination of the agency does not impair the profitmaking structure of the assessee,
but is within the
framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue
and not
capital,
Ke/sail Parson and Co.'s case(')
falls within the exception to the ordinary rule, and circumstances which brought the case of the respondent
within the exception must be clearly established."
As we have observed earlier, in view of the judgments of this
Court, no further citation is called for.
Whether the compensation received by an assessee for the loss of agency is a capital
receipt or a revenue receipt depends upon the circumstances of
each case.
Before coming to a conclusion one way or the other,
many questions have to be asked and answered : what was the
scope of the earning apparatus or structure, from physical, financial, commercial and administrative standpoints ? If it was a
business of taking agencies, how many agencies it had, what was
their nature and variety ? How were they acquired, how one or
H
some of them were lost and what was the total income they were
(1) [1965] 3 S.GR. 692
(2) (1964] 8 S.C.R. 93
(3) [1938] 21 T.C. 608
L2Sup.C.I./66-19
486
SUPREME COURT REPPRTS
[1966] 2 S.C.R.
yielding ? If one of them was given up, what was the average
income of the agency lost ? What was its proportion in relation
to the total income of the company ? What was the impact of
giving it up on the structure of the entire business ? Did it
amount to a loss of enduring asset causing an unabsorbed shock
dislocating the entire or a part of the earning apparatus or structure ? or was it a loss due to an ordinary incident in the course
of the business ? The answers to these questions would enable
one to come to a conclusion whether the loss of a particular agency
was incidental to the business or whether it amounted to a loss
of an enduring asset. If it was the former, the compensation paid
would be a revenue receipt; if it was the latter, it would be a
capital receipt. But these questions can only be answered satisfactorily if the relevant material is available to the income-tax
authorities.
The evidence of witnesses in charge of the business,
the relevant accounts and balance sheets of the assessee before
and after the loss, other evidence disclosing the previous history
of the total business and the relative importance of the agency
lost and the present position of the business after the loss of the
said agency have to be scrutinized by the Department.
At this stage the question of burden of proof raised at the
Bar may be noted.
In Commissioner of Income-tax v. Chari &
Chari Ltd.('), this Court observed :
" ........ it must in the first instance be observed
that it is for the revenue to establish that a particular
receipt is income liable to tax ................ ".
We may point out, as some argument was advanced on the question of burden of proof, that this Court did not lay down that
the burden to establish that an income was taxable was on the
Revenue was immutable in the sense that it never shifted to the
assessee.
The expression "in the first instance" clearly indicates
that it did not say so.
When sufficient evidence, either di,ect or
circumstantial, in respect of its contention was disclosed by the
Revenue, adverse .inference could be drawn against the assessee
if he failed to put before the Department material which was in
his exclusive possession.
The· process is described in
th~ law
of evidence as shifting of the onus in the course of a proceeding
from one party to the other.
There is no reason why ~ said
doctrine is not applicable to income-tax proceedings.
W'l!le the
Income-tax authorities have to gather the relevant material to
establish that the compensation given for the loss of agency was
(l) (1965] 3 S.C.R. 692
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\
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C.I.T. v. BEST & co. (Subba Rao, 1.)
485
;
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A by the appellant as agents, the acquisition of agencies was in the
j
normal course of business and determination of individual agencies a normal incident not affecting or impairing its trading structure.
The material facts of that case are on all fours with the
present case.
Indeed, the Principal in both the cases was the
same and the agency terminated was also a similar one.
The
B
compensation given was worked out on the same lines. The only
difference is that in that case it was not found that the restrictive
covenant entered into the bargain.
This Court again reiterated the same principle in Commissioner of Income-tax, Madras v. Chari & Chari Ltd.( 1).
But,
C
on the facts of that case, it came to the conclusion that the compensation paid for the loss of agency was a capital asset.
There,
Shah, J., speaking for the Court, said :
D
E
F
"In Kettlewell Bullen and Co.'s case(') this Court
pointed out that ordinarily compensation
for loss of
office or agency is regarded as a capital receipt, but
the rule is subject to an exception that payment received
even for termination of an agency agreement, where the
agency is one of many which the assessee holds, and
the termination of the agency does not impair the profitmaking structure of the assessee,
but is within
the
framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue
and
not
capital,
Ke/sail Parson and Co.'s case(")
falls within the exception to the ordinary rule, and circumstances which brought the case of the respondent
within the exception must be clearly established."
As we have observed earlier, in view of the judgments of this
Court, no further citation is called for.
Whether the compensation received by an assessee for the loss of agency is a capital
receipt or a revenue receipt depends upon the circumstances of
G each case.
Before coming to a conclusion one way or the other,
many questions have to be asked and answered : what was the
scope of the earning apparatus or structure, from physical, financial, ~mmerc.ial and .administrative stand~oints ? If it was a
busm811J of takmg agencies, how many agencies it had, what was
their nature and variety ? How were they acquired, how one or
ll
h
some of t em were Jost ~nd what was the total income they were
(!} [1965] 3 S.C.R. 692
(2) [1964] 8 S.C.R. 93
LlSup.C.1./66-19
(3) [1938] 21 T.C. 608
41!8
SUPREME
COURT REPORTS
[1966] 2 S.C.R.
could have been brought out if only the average total commission
A
earned by the assessee for a reasonable period of time before the
fransfer was disclosed.
In the absence of such material it is not
possible to arrive at any conclusion one way or the other, on the
line of enquiry pursued by the High Court. What remains, therefore, is only the fact that the assessee had innumerable agencies
B
in different lines and that it only gave up one of them and continued to do business without any apparent mishap. The correspondence between the parties shows that the assessee gave up
the agency without any protest presumably because such termination of agencies was part of the normal course of its business.
'
We, therefore, hold on the facts of the present case that the loss
of the said agency by the assessee was only a normal trading
C
loss and that the income it received was a revenue receipt.
Mr. Rajagopala Sastri's next contention is that on a fair reading of the correspondence that passed between the parties it should
be held that the compensation given to the assessee was only in
lieu of a restrictive covenant and, therefore,
it was a capital
D
receipt.
To appreciate this contention it is necessary to read the relevant correspondence. On March 11, 194 7, the Principal wrote
a letter to the assessee.
As the argument mainly turned upon the
contents of this letter, it is necessary to extract it in full. It
reads:
E
IMPERIAL CHEMICAL INDUSTRIES (EXPORT)
LIMITED
Explosives Branch,
Nobel House,
25, Bothwell Street,
Glasgow C-2.
11th March 1947.
Our Ref. : Export sales Section GKL/NR.
Messrs. Best and Company Limited,
P.O. Box 63,
Madras, India.
Dear Sirs,
F
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Agency arrangements.
H
We refer to the interview which Mr. J. W. Donaldon lrnd with your Mr, Ruddle in May 1945, when it
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C.I.T. v. BEST & CO, (Subba Rao, !.)
was intimated that as a matter of long term policy, our
agencies in India and Ceylon would ultimately be taken
over by Imperial Chemical Industries (India), Limited.
It was indicated at that time that a period of two to
three years might elapse before any steps were taken as
regards this transfer.
We now have to advise you that
the matter has been receiving further consideration,
and Imperial Chemical Industries (India), Limited
desire to take over the various agencies as from the
first April 1948.
It is with regret, therefore, that we have to intimate
our intention of transferring your agency, as from the
above date, to Imperial Chemical Industries (India),
Limited, and would take this opportunity of expressing
to you our sincere appreciation of the valuable services
you have rendered to us over a period of many years.
As a result of the transfer of your agency to Imperial
Chemical Industries (India) Limited, we propose that
compensation should be paid to you on the following
basis:-
(1) For the first three post-transfer years, we shall
pay you two-fifths of the commission accruing on annual
sales in the territory of your Agency taken over by
Imperial
Chemical Industries (India) Limited, such
commission to be computed at the commission rates former! y paid to you.
(2) In the third post-transfer year we shall pay
you, in addition, a sum equivalent to the full commission on sales for that year effected by Imperial Chemical Industries (India) Limited in your territory, calculated at the same rates.
( 3) Payment will be made to you after the end of
each year as soon as the amount is ascertained.
For the purposes of calculating the commission due
to you, the post-transfer years will be deemed to run
as from the date of the transfer of your agency to Imperial Chemical Industries (India) Limited.
We
trust
that you will find these proposals acceptable.
H
As a condition of our paying compensation on the
basis outlined above, we would request you to be good
enough to give us a formal undertaking to refrain from
489
490
SUPREME COURT REPORTS
[1966] 2 S.C.R.
selling or accepting any agency for explosives or other
A
commodities competitive with those covered by . the
agency agreement now being terminated.
In this connection, we are asking our legal department to prepare a formal agreement which we will
submit to you for your signature as soon as possible.
Yours faithfully,
for Imperial Chemical Industries
(Export) Limited.
Mr. Rajagopala Sastri contended that for the past valuable services the Principal expressed only sincere appreciation and for the
termination of the agency and thus putting an end to the assessee's
future benefits it proposed to give the assessee
compensation
measured by the sales effected by the new agent.
But his main
argument is that whatever terminology was used, comm1ss10n or
compensation, the amount agreed to be paid was wholly as compensation for the assessee agreeing to refrain from selling or
accepting any agency for selling explosives. That conclusion was
sought to be arrived at on the ground that the said restrictive
covenant was a condition for the payment of compensation.
We
find it difficult to accept this construction of the document. The
scope of this document cannot be appreciated ignoring the circumstances under which it came into existence.
As we have
stated earlier, the agency, which is the subject-matter of this
agreement, was only one of many other agencies the assessee had.
We cannot agree with the learned counsel th~t the compensation was given wholly for the restrictive covenant.
Indeed, the
compensation was given expressly for giving up the agency. In
the last paragraph of the letter a request was made to the assessee
to agree to a restrictive covenant as a condition for paying compensation.
The letter dated April 8, 1947, written by the Principal to the Agency Company makes the position clear. Therein
it was stated :
"With regard to the point you raise concernig the
period during which you would undertake not to take
any competitive agency, we would like you to understand that it was never our intention that vou should
be tied down on this point for all time.
We had felt
that the limiting period should be one of five years and
we are pleased to note from your letter that this appaB
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C.I.T. v. BEST & co. (Subba Rao, !.)
rently is in accordance with your own ideas. It is suggested that the five years should date from the termination of the agency, namely, 1st April, 1948."
491
The letter written by the assessee to the Principal is not on the
file.
But it is clear from this letter that the restrictive covenant
was one of the terms of the agreement relating to consideration.
It was a part of the consideration that passed from the assessee
for receiving the compensation.
We cannot also
agree with
Mr. Viswanatha Sastri, who went to the other extreme and contended that the restrictive covenant was only an act of grace on
the part of the Agent and that it did not enter into the bargain.
We, therefore, hold that the compensation agreed to be paid was
not only in lieu of the giving up of the agency but also for the
assessee accepting a restrictive covenant for a specific period.
The next question is whether that part of the compensation
attributable to the restrictive covenant is a capital receipt or a
revenue receipt.
The House of Lords in Beak (H.M. Inspector of Taxes) v.
Robson('), had to consider, whether compensation paid for a
restrictive covenant was a capital receipt or a revenue receipt.
Under a service agreement the respondent· therein covenanted in
consideration of the payment to him of £ 7,000 on the execution
of the agreement, that if the agreement were determined by notice
given by him or by his breach of its provisions he would not
compete directly or indirectly with the company within a radius
of fifty miles of its place of business until the five years had
expired.
The House of Lords held that the said amount was a
payment for giving up a right wholly unconnected with his office
and operative only after he ceased to hold that office and, therefore, it was not
taxable under Schedule E of the Income-tax
Acts.
This Court in Gil/anders Arbuthnot and Co. Ltd. v. Commissioner of Income-tax, Calcutta(') accepted the said principle and
held that the compensation paid for agreeing to refrain from carrying on competitive business in the commodities in respect of the
agency terminated or for loss of goodwil! was prima facie of the
nature of a capital receipt.
Jn the present case, the covenant was an independent obligation undertaken by the assessee not to compete with the new
agents in the same field for a specified period. It came into opera·
tion only after the agency was terminated.
It was wholly un-
(1) (1942] 25 T.C. 33.
(2) (1964] 8 S.C.R. 121
SUPREME COURT REPORTS
[1966] 2 S.C.R.
connected with the assessee's agency terminated.
We, therefore,
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hold that that part of the compensation attributable to the restrictive covenant was a capital receipt and hence not assessable to
tax.
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The next question is whether the compensation paid is severable. If the compensation paid was in respect of two distinct
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matters, one taking the character of a capital receipt and the
other of a revenue receipt, we do not see any principle which
prevents the apportionment of the income between the two
matters.
The difficulty in apportionment cannot be a ground for
rejecting the claim either of the Revenne or of the assessee. Such
an apportionment was sanctioned by courts in Wales (H.M. Insc
pector of Taxes v. Tilley('), Carter v. Wadman (H.M. Inspector of Taxes('), and T. Sadasivam v. Commissioner of Income-tax,
Madras(').
In the present case apportionment of the compensation has to be made on a reasonable basis between the loss of the
agency in the usual course of business and the restrictive covenant.
The manner of such apportionment has perforce to be left
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to the assessing authorities.
The answer to the question referred to the High Court is that
only such part of the sums of Rs. 66,790 and Rs. 3,35,371 as
is attributable to the loss of the agency is assessable under s. 10
of the Act for the assessment years 1951-52 and 1952-53. We
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accordingly modify the answer given by the High Court in that
regard.
In the result, the appeals are partly allowed.
As both the
parties failed in part and succeeded in part, they will bear their
respective costs here and in the High Court.
Appeals allowed in part.
(1) [1942] 25 T.C. 136
(2) [1946] 28 T.C. 41
(3) [1955] 28 I. T.R. 435
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