# THE COMMISSIONER OF INCOME TAX, PUNJAB v. THE LAHORE ELECTRIC SUPPLY CO

- **Citation:** [1966] 2 S.C.R. 720
- **Court:** Supreme Court of India
- **Decided:** 1965-11-25
- **Case number:** Civil Appeals Nos. 813 D and 814 of 1963
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-commissioner-of-income-tax-punjab-v-the-lahore-electric-supply-co-3743
- **Pages:** 12

## Headnote

lncomt Tax Act 1922~. 10(2)(xv)-Whether company carried on
business-Therefore whether entitled to deduction of expenses.
The assessee company carried on the business of supplying electricity
to various cities under licences from the Government. All the licences,
except one for the supply of electricity to the city of Lahore, were terminated or disposed of by 1942.
Soon after that, the Provincial Government acquired the company's undertaking for the supply of electricity
in Lahore and part of the value for the acquisition remained due to be·
paid to the company after the listing and valuation of the assets. Thecompany also possessed considerable assets
not
appertaining
to
the
Lahore Electric Supply Undertaking and all its funds were invested in
securities and shares, the income from which was the sole income after
September 5, 1946.
In its assessment to income-tax for the years 1948-49 and 1949-50,
the company claimed deduction of various amounts under s. 10(2) (xv)
of the Income-tax Act, 1922, on the basis that it had been carrying on
business in the accounting years concerned and the expenses had been
incurred solely for the purpose of that business. Their contention was
rejected by the Income-tax Officer and his stand was confirrne<I by the
Appellate Assistant Commissioner. However, the Tribunal held in appeal,
that the question depended on what the intentions of the company were
and on the facts took the view that the assessee company had not ceased
to carry on business. The High Court, upon a reference, also answered
the question in the assesse.e's favour.
In arriving at this conclusion, the
Tribunal and the High Court relied on, int£r alia, the following facts :-
( 1) the company did not sell its undertaking as a going conocrn;
(2) it continued in possession of all assets of its undertakings other
than those appertaining to the Lahore Electric Supply Undertaking;
(3) it continued to hold deposits from
consumers of
electricity
which had to be returned with interest;
( 4) it had no intention of going into liquidation;
(5) the Directors had indicated in their report thq_t they were consi-
. dering purchasing some manufacturing concern to have an addi~
tional source of profit; etc.
HELD: (Per Sarkar and Mudholkar JJ.)-
None of the grounds set out by the Tribunal and the High Court led
to the conclusion that the company intended to carry on business.
The facts found made it clear that since 1942 the only business of
the company was to work the Lahore Electric Supply licence. It stopped
that business when the undertaking was taken ove'r by tho Goevrnment.
Thereafter during the accounting years concerned, namely 1947-48 and
1948-49 it had not started any other business. [723 Fl
-
•
B
-
c
D
•
G
H
•
•
C.I.T. v. LAHORE ELECTRIC co. (Sarkar, J.)
721
A
The Commissioners of Inland Revenue v. The Anglo Brewing Co.
B
c
Ltd. 12 T.C. 803, referred.
The Commissioners of Inland Revenue v. The South Behar Railway
Co. 12 T.C. 657, 712 distinguished .
(Per Bachawat, J., dissenting)
(i) The Memorandum of the assessee company showed that one of
its subsidiary objects was to invest in stocks, shares, securities, etc. and
to sell, exchange or otherwise deal with them from time to time. The
main business of generating and supplying electricity having stopped, the
company invested its funds in deposits and stocks and shares. The activity
of investment and getting a return for its capital was a part of its legitimate
business activities [728 H-729 BJ
The Commissioners of Inland Revenue v. The Korean Syndicat.e Ltd.
12 T.C. 181; Karanpura Development Co. Ltd. v. CJ.T. West Bengal,
( 1962) 3 S.C.R. 368, 378; Laxminarayan Ram Gopal & Sons v. Govt. of
Hyderabad (1955)! S.C.R. 393, 405-407; The Commissioners of Inland
Revenue v. Dale Steamship Co. Ltd. 12 T.C. 712; referred to.
(ii) On the facts of the case, the Tribunal had rightly come to the
conclusion that the company had not ceased to carry on its business.

## Text

720
THE COMMISSIONER OF INCOME TAX, PUNJAB
v.
THE LAHORE ELECTRIC SUPPLY CO.
November 25, 1965
[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]
lncomt Tax Act 1922~. 10(2)(xv)-Whether company carried on
business-Therefore whether entitled to deduction of expenses.
The assessee company carried on the business of supplying electricity
to various cities under licences from the Government. All the licences,
except one for the supply of electricity to the city of Lahore, were terminated or disposed of by 1942.
Soon after that, the Provincial Government acquired the company's undertaking for the supply of electricity
in Lahore and part of the value for the acquisition remained due to be·
paid to the company after the listing and valuation of the assets. Thecompany also possessed considerable assets
not
appertaining
to
the
Lahore Electric Supply Undertaking and all its funds were invested in
securities and shares, the income from which was the sole income after
September 5, 1946.
In its assessment to income-tax for the years 1948-49 and 1949-50,
the company claimed deduction of various amounts under s. 10(2) (xv)
of the Income-tax Act, 1922, on the basis that it had been carrying on
business in the accounting years concerned and the expenses had been
incurred solely for the purpose of that business. Their contention was
rejected by the Income-tax Officer and his stand was confirrne<I by the
Appellate Assistant Commissioner. However, the Tribunal held in appeal,
that the question depended on what the intentions of the company were
and on the facts took the view that the assessee company had not ceased
to carry on business. The High Court, upon a reference, also answered
the question in the assesse.e's favour.
In arriving at this conclusion, the
Tribunal and the High Court relied on, int£r alia, the following facts :-
( 1) the company did not sell its undertaking as a going conocrn;
(2) it continued in possession of all assets of its undertakings other
than those appertaining to the Lahore Electric Supply Undertaking;
(3) it continued to hold deposits from
consumers of
electricity
which had to be returned with interest;
( 4) it had no intention of going into liquidation;
(5) the Directors had indicated in their report thq_t they were consi-
. dering purchasing some manufacturing concern to have an addi~
tional source of profit; etc.
HELD: (Per Sarkar and Mudholkar JJ.)-
None of the grounds set out by the Tribunal and the High Court led
to the conclusion that the company intended to carry on business.
The facts found made it clear that since 1942 the only business of
the company was to work the Lahore Electric Supply licence. It stopped
that business when the undertaking was taken ove'r by tho Goevrnment.
Thereafter during the accounting years concerned, namely 1947-48 and
1948-49 it had not started any other business. [723 Fl
-
•
B
-
c
D
•
G
H
•
•
C.I.T. v. LAHORE ELECTRIC co. (Sarkar, J.)
721
A
The Commissioners of Inland Revenue v. The Anglo Brewing Co.
B
c
Ltd. 12 T.C. 803, referred.
The Commissioners of Inland Revenue v. The South Behar Railway
Co. 12 T.C. 657, 712 distinguished .
(Per Bachawat, J., dissenting)
(i) The Memorandum of the assessee company showed that one of
its subsidiary objects was to invest in stocks, shares, securities, etc. and
to sell, exchange or otherwise deal with them from time to time. The
main business of generating and supplying electricity having stopped, the
company invested its funds in deposits and stocks and shares. The activity
of investment and getting a return for its capital was a part of its legitimate
business activities [728 H-729 BJ
The Commissioners of Inland Revenue v. The Korean Syndicat.e Ltd.
12 T.C. 181; Karanpura Development Co. Ltd. v. CJ.T. West Bengal,
( 1962) 3 S.C.R. 368, 378; Laxminarayan Ram Gopal & Sons v. Govt. of
Hyderabad (1955)! S.C.R. 393, 405-407; The Commissioners of Inland
Revenue v. Dale Steamship Co. Ltd. 12 T.C. 712; referred to.
(ii) On the facts of the case, the Tribunal had rightly come to the
conclusion that the company had not ceased to carry on its business.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 813
D
and 814 of 1963.
Appeals by Special Leave from the Judgment and Order dated
the December 30, 1960 of the Punjab High Court in Income
Tax Reference No. 10 of 1959.
Niren De, Additional Solicitor-General, Gopal Singh and
E R. N. Sachthey, for the appellant.
F
G. C. Sharma, Uma Mehta, B. S. Pachauri and K. K. Jain,
for the respondent.
The Judgment of Sarkar and Mudholkar, JJ. was delivered
by Sarkar J. Bachawat, J. delivered a dissenting Opinion.
Sarkar J.
The respondent is a company incorporated in
1912.
The immediate object of the Company was to acquire
from the People's Bank of India Ltd. the licence it had obtained
from the Government for the supply of electricity to Lahore city.
The Company acquired that licence in 1913 and the necessary
·G plants and machinery for the generation and supply of electricity.
Between 1923 and 1939 it acquired licences for similar purposes
in regard to various other places in different parts of India. All
"
these licences were however either terminated or disposed of one
,..
by one and in 1942 the only licence which the Company possessed
was that in respect of the city of Lahore. About the end of 1942
}
H
or beginning of 1943, the Government of the then Province of
Punjab acquired the Company's undertaking in regard to the
supply of electricity to the city of Lahore and on September 5,
722
SUPREME COURT REPORTS
[1966] 2 s.c.R.
1946, the Company delivered its aforesaid undertaking with all
A.
assets to the Government. It was agreed that the Company would
pay to the Govermnent half of the net profits of the Lahore electric supply undertaking arising between November 27, 1942 and
September 5, 1946.
On September 5, 1946, the Company
received from the Government a part of the moneys payable to
it in respect of the Lahore electric supply undertaking leaving a
E
large amount due which was to be paid after the listing and valuation of its assets. Besides this sum the Company also possessed
considerable assets not appertaining to the Lahore electric supply
undertaking. All these funds were invested by the Company in
government and other securities and shares and the income from
these investments appears to have been the sole income of the
C
Company after September 5, 1946.
In its assessment to income-tax for the years 1948-1949 and
1949-1950 the Company claimed deduction of various amounts
under s. I 0(2)(xv) of the Income-tax Act, 1922, on the basis that
it had been carrying on business in the accounting years concerned D
and the expenses had been incurred solely for the purpose of
that business.
This contention was rejected by the Income-tax
Officer.
On appeal by the Company to the Appellate Assist:mt
Commissioner, certain deductions were allowed but that authority did not accept the contention that the Company was carryjng E
on business so as to come within s. 10 of the Act. The Company
then took the matter up in further appeal to the Income-tax
Appellate Tribunal.
The Tribunal accepted the Company's contention and granted it large deductions under s. 10(2)(xv) of the
Income-tax Act.
The appellate Commissioner of Income-tax
requested the Tribunal to state a case to the High Court but that
F
request was rejected.
The appellant Commissioner thereafter
on August 20, 1958 obtained an order from the High Court of
Punjab directing the Tribunal to refer the following two questions
to the High Court for its opinion :
I. Whether on the facts and in the circumstances of the G
case the conclusion of the Appellate Tribunal that the
assessee company had not ceased to carry on business
during the relevant accounting period, is, in law,
correct.
2. If the answer to the first question be in the affirmative,
whether all the expenses which the Tribunal has
H
allowed are admissible under section I 0(2) of the
Income-tax Act ?
•
• •
•
•
C.I. T. v. LAHORE ELECTRIC co. (Sarkar, J.)
72 3"
A Accordingly the Tribunal stated a case to the High Court in
regard to these two questions.
The High Court answered both
the questions in the affirmative.
Hence the present appeals by
the Comnissioner of Income-tax .
In this Court the learned Additional Solicitor General appearB ing for the appellant abandoned the second question. The only
point, therefore, that arises for decision in this appeal is whether
on the facts found it could be said that the Company had been
carrying on business in the two accounting years.
As we have earlier stated, the Tribunal took the view that the
Company had not ceased to carry on business.
The Tribunal
C observed that the question would depend on what the intentions
of the Company were. The High Court was of the same opinion.
We also think that that is the correct view. This postulates that
the Company was not in fact carrying on any business for if it
was, it would be superfluous to enquire whether the Company
intended to carry on a business. The Courts below thought that
D the facts showed that the Company intended to carry on business.
The facts on which they relied were--(1) the Company did not sell
its undertaking as a going concern; (2) it continued in possession of
all assets of its undertakings other than those appertaining to the
•
Lahore electric supply undertaking; (3) it continued to hold depoE sits made by consumers of electricity supplied by the Lahore electric
supply undertaking which had to be returned to them with interest;
( 4) it had no intention of going into liquidation; (5) the Directors'
report showed that the Directors were "considering if they could
possibly purchase some manufacturing concern which might become
an additional source of profit to the shareholders"; and (6) there
p
was nothing to show that there was permanent discontinuance of the
business of the Company. So far as the High Court is concerned,
it appears to have held that the Company was carrying on business
because the~e was nothing to show that it intended to go into liquidation and because by keeping its staff and establishment it indicated
that if would resume business, for otherwise it would not have reG tained them. The High Court also took into account the fact that
during the larger part of the accounting periods the situation in
the country was abnormal as a result of the partition of India and
that explained why the Company bad not commenced any fresh
business.
H
In our opinion, none of the grounds mentioned in the preceding
paragraph leads to the conclusion that the Company intended to
carry on business. The facts found make it abundantly clear that
since 1942 the only business of the Company was to work the
724
SUPREME COURT REPORTS
[1966] 2 S.C.R.
Lahore electric supply licence. It stopped that business on September 5, 1946, when the undertaking was taken over by the Government. Thereafter, during the accounting years concerned, namely,
194 7 -48 and 1948-49 it had not started any other busint.ss. The
mere facr that the Company had not gone into liquidation would
not establish that it had the intention to do business. If it were not
so, then in the case of all trading companies it had to be held that
they were always doing business. There is neither authority nor
principle to support such a proposition. There was further no question of the Company's going into liquidation in the accounting years,
A
B
c
for during that time it had not received from the Government the
entire amount due to it as compensation for the acquisition of its
Lahore electric supply undertaking. At the relevant time the Company was not possessed of any commercial undertaking. What we
have quoted earlier from the Directors' report would show that what
was in the contemplation of the Directors was the purchase of a
new concern. The Directors however had not stated that they did
intend to do so. What they said was that they were considering
whether they would do so or not. That does not express an intenD
tion to resume business. It is unnecessary to go into the question
whether an expression of an intention to resume business in vacuo
·would amount to carrying on business. It is sufficient for the purpose of this case to state that even an intention to resume business
has not been established.
It would, therefore, appear that the business was closed and the
Company had not established an intention to resume it. That would
be enoqgh to show that no business was carried on and it would
be irrelevant to enquire whether the business was permanently
closed. We may add that we do not understand what was meant
by saying that the Company did not sell its undertaking as a going
concern. TJ1e only going trading concern that it possessed was the
Lahore electric supply undertaking and that it sold; it had no other
commercial undertaking.
After the sale of the Lahore electr{c
supply concern all_ it did was to invest its moneys and the Tribunal
has not found this activity to be a business.
The facts that the Company had to pay the Government half
share of the profits between November 27, 1942 and September 5,
F
G
•
•
1946 and that it had to return the consumers the deposits made by
•
them would not indicate that it was carrying on a business. It would
be laying down strange law to hold that where a business has in
fact ceased to be run, it must be deemed as continuing because the
H
outstanding liabilities of that business had not been liquidated.
The question whether the Company was canying on business arises
'
C.I.T. v. LAHOllE ELECTRIC co. (Sarkar, J.)
725
A only because if it was, it would be entitled under s. 10 to deductions
from its business income in regard to certain expenses incurred by
it for the purpose of that business. Business as contemplated by
that sec~ion is an activity capable of producing a profit which can
be taxed. Payment of outstanding liabilities is not an activity which
can ever pr9duce such a result. It cannot be said, therefore, that
B because liabilities of a closed business were outstanding, it has to be
h~ld that either the business was continuing or that an intention to
resume business must be inferred : see Commissioners of Inland
Revenue v. The Anglo Brewing Co. Ltd.(').
c
Some reliance was placed in this connection on an observation
of Lord Sumner in The Commissioners of Inland Revenue v. The
South Behar Railway Co. (2). There Lord Sumner observed, "If,
as was held in re Dagnall, (1896)2 Q.B. 407, a married woman continues to carry on business for the purpose of 45 & 46 Viet., c. 75,
s. 1(5), as Jong as her trade debts remain undischarged, there would
D
seem to be a presumption that a company continues to carry on
business as long as it is engaged in collecting debts periodically falling due to it in the course of its former "business." We are unable
to hold that Lord Sumner intended to lay down that a business which
is closed down is deemed to be carried on so long as its outstandings
are being collected. South Behar Railway's case(') was concerned
E with a financing company whose only activity after the finances
had been furnished was to receive from the Government by way of
profits of the financing activity, earlier a certain proportion of the
net earnings of the undertaking financed which was being managed
by the government and later a fixed sum and to receive from the
Government the finance supplied when the Government acquired the
F
undertaking as it intended to do. All that Lord Sumner intended
to say was that the receipt of the moneys was the business of the
company and its only business after the financing had been completed. He was not concerned with the case of a closed business
whose outstandings were being collected.
G
The Tribunal did not hold that the Company was in fact doing
business or that anything that it did amounted to carrying on bus~
ness .. ~e onus of showing this was clearly on the Company. All
that 1t d!d was to refer to the sale of its Lahore electric supply
undertakmg to the Government and the listing of the assets of that
undertaking and valuing it as the carrying on of business.
This
H contention was rightly rejected by the Tribunal on the ground that
the sale of the undertaking though within its memorandum was not
(l) 12 T.C. 803, 813.
L3Sup. Cl/66-16
(2) 12 T.C. 657, 712.
726
SUPREME COURT REPORTS
(1966]2 S.C.R.
its business ~hich was really the working of that undertaking. It
A.
also seems to us that the condition of the country immediately
following the partition is by itself irrelevant for deciding whether
the CompaJ!y was doing business.
•
Learned counsel for the respondent contended that the Incometax Officer's order showed that in one of the assessment years the
B
Company had received a certain amount as a result of a business
of dealing in investments. The Tribunal however did not find this
as a fact. Neither does it seem to us that the Income-tax Officer
considered this income as business income though it described it
as such, for he held that the Company was not doing any business
~ill
.
c
In our opinion, it must, therefore, be held that -the Company
had ceased to carry on business and we would answer the first
question in the negative. The appeals must be allowed with costs
here and below and we order accordingly.
Bacbawat, J.
These appeals by special leave raise the question whether the respondent-Company was carrying on business
during the according years 1947-48 and 1948-49 corresponding
D
to the assessment years, 1948-49 and 1949-50, and, therefore, entitled to deduction of expenses for carrying on the business under a
1. 10(2)(xv) of the Indian Income-tax Act, 1922. The company
was incorporated in 1912. In 1913, it acquired the license to
supply electric energy in Lahore and thereafter it acquired other
licenses for supply of electric energy at various other places. Before
1942, it disposed of all the licenses other than the Lahore license.
The Punjab Government took steps for the acquisition of the underI'
taking relating to Lahore license under the Defence of India Act
and Rules, and there were disputes and litigations between it and
the company. The disputes were compromised by an agreement
dated June 2, 1945, whereby the company sold the undertaking to
the Government at a price to be settled by valuation and also agreed
to pay to the Government half the net profits of the undertaking G
less taxes from November 27, 1942 till the date of the delivery of
the undertaking to the Government. Pending the compilation of
the lists and the making of the valuation of the assets of the undertaking, the company and the Punjab Government entered into a
supplementary agreement dated September 2, 1946 under which
H
the Company received a sum of rupees one crore towards part payment of the price, and on September 5, 1946 the company delivered
the undertaking to the Punjab Government.
-
C.I.T. v. LAHORE ELECTRIC co. (Bachawat, l.)
727
A
It is common case that until September 5, 1946 the company
was carrying on the business. The dispute is whether the company
had ceased to carry on business thereafter and more particularly
during ~b.e accounting years 1947-48 and 1948-49. During this
period, the company was not generating or supplying electricity at
Lahore or at any other place, and it carried on its activities with a
B reduced staff. It devoted a part of its activities for the making of
the lists and the valuation of the assets sold to the Punjab Government. It had considerable undisposed of assets. The deposits of
its old customers were outstanding and it was liable to repay the
same with interest. It invested the cash received from the Government and other sources in stocks and shares and bank deposits and
<:
received by 'fay of income, large sums of money from interest on
deposits and dividends. During the accounting year 1947-48, it
was in receipt of some business income from the sale of its investments. It utilised its income to pay dividends to the shareholders
and to meet its expenses. It had no intention of going into liquidaD tion and successfully opposed a winding-up petition. In the directors' report for the accounting year, 1946-47 dated November 25,
1948, the directors stated :
'¥
"In the meanwhile, however, your Directors are considering if they could possibly purchase some manufacturing concern which might become an additional source of
profit to the shareholders."
For the assessment years, 1948-49 and 1949-50, the company
claimed deduction of expenses for carrying on its business during
the accounting years 194 7 -48 and 1948-49 under s. l 0(2)(xv) of
the Indian Income-tax Act, 1922. The Income-tax Officer held
that the company was not carrying on any business and totally disallowed contribution to employees' provident fund, pension and
gratuity to old staff, valuer's remuneration, legal expenses, depreciation and income-tax provision, but he allowed a part of the salary
paid to certain employees, rent, office expenses, interest, auditor's
G and directors' fees.
011" appeal, the Appellate Assistant Commissioner held that though there was some little business income, there
was practically no business and he allowed in full the audit charges,
directors' fees and payment for interest, but he reduced the rent and
establishment charges allowed by the Income-tax Officer. On further appeal by the company, the Appellate Tribunal recorded the
H
following finding :
"Keeping in mind the entire facts and circuinstances
of this case, we have come to the clear conclusion that
728
SUPREME COUl.T REPORTS
(1966] 2 S.C.R.
. the assessee Company had not ceased to carry on its
A
business."
On this finding, the Tribunal held t!iat in addition to the fXpewies
allowed by the Appellate Assistant Commissioner the whole of
the contribution to provident fund, pension, gratuity, rent,
de.{Jreciation, establishment charges and office expenses and the legal
B
expenses for resisting the winding-up should be allowed.
Under
the orders of the Punjab High Court, the Tribunal referred the following questions of Jaw for the decision of the High Court :
"(!) Whether on the facts and in the circumstances
of the case the conclusion of the Appellate Tribunal that
the assessee company had not ceased to carry on business during the relevant accounting period is,
in law
correct?
(2) If the answer to the first question be in the affirmative, whether all the expenses which the Tribunal has
c
allowed are admissible
under
section 10(2)
of the
D
Income-tax Act ?"
The Punjab High Court answered both the questions in the affir-
' mative, and the Commissioner of Income-tax now appeals to this
Court by special leave. Counsel for the appellant conceded that
if the first question is answered in the affirmative, the second quesE
tion must also be answered in the affirmative. The sole question
before us is, therefore, whether on the facts found the company
had ceased to carry on business during the accounting years
1947-48and1948-49.
;
The mx_morandum of the company discloses the objects for
which the company was constituted. If a question arises whether
F
a particular activity of the company is a business activity, it is pertinent and relevant to enquire whether it is so regarded in its
memorandum.
See The Commissioners of Inland Revenue v.
The Korean Syndicate Ltd.('), Karanpura Development Co. Ltd.,
v. The Commissioner of Income•ta.x, West Bengal('), La.xmi1iarain Ram Gopal & Sons v. Government of Hyderabad(').
In
G
the instant case, the memorandum of the company discloses that
its main purpose is to carry on the business of electric light and
power company in all its
branches, including generating and
supplying electricity.
Clause 4 cf the memorandum shows that
one of its subsidiary objects is to invest in stocks, shares, investments or securities of all classes and descriptions and to hold, sell,
(1) [1921] 12 T.C. 181.
(2) (1962! 3 S.C.R. 368, 378.
(3) [1955] 1 S.C.R. 393, 405-407.
H
..
• ,
'
. I.
C.I.T. v. LAHORE ELECTRIC co. (Bachawat, !.)
729
A exchange or otherwise dispose of, deal with them from time to time.
A company may of course own shares and make investments, and
still not carry on any business; but in this case there is nothing to
show that its investments are not to be regarded as part of its business activities.
The main business of generating and supplying
electricity had stopped and the company, therefore, invested its
B funds in deposits and stocks and shares. The activity of investment and getting a return for its capital is a part of its legitimate
business activities. In The Commissioners of Inland Revenue v.
Dale Steamship Co. Ltd.('), the objects of the company were, inter
alia, to acquire steamships and other vessels, to build, charter, let
out on hire and trade with ships, to carry on business as shipowners,
C merchants, etc., and to invest and deal with the moneys not immediately required. At the outbreak of the war, the company owned
and traded with five ships. Of these, one was detained by the enemy
at Hamburg, one was sold and the remaining three (all insured)
were sunk during the war. The proceeds of sale and the insurance
moneys received were all placed on ~eposit or invested in easily
D realisable investments in order to facilitate the resumption of trading or winding up. In an assessment of the company to Corporation
Profits Tax, it was held on the authority of The Commissioners of
Inland Revenue v. The South Behar Railway Company Limited( 2 )
that the company was carrying on a trade or business, and that it
was liable to assessment to Corporation Profits Tax. The wording
E
of s. 52 of the Finance Act, 1920 made no difference, for as pointed
out by Viscount Cave, L.C in the South Behar Railway Company's
case(') at p. 705, the words "including the holding of investments" in the statute referred not to all cases in which the company
had money invested, but to cases where the holding of investments
F was the business or part of the business of the company. The activity of investment of its available funds may be regarded as a
business activity of the company even though the company for the
time being may not be carrying on its main business.
The company's main business may be quiescent, but, nevertheless, it may
still carry on business.
G
It has heen specifically found that the company was dealing in
investments during the accounting year, 1947-48 and that a surplus
of Rs. 2,44 7 /- realised by the company from sale of its investments
during the year was a business income of the assessee. See paragraph 6 of the statement of case dated March 6, 1959, paragraph 4
R
of the order of the Appellate Assistant Commissioner dated April
18, 1951 and the last part of the order of the Income-tax Officer for
(I} 12 T.C. 712.
(2) 12 T.C. 657.
L3Sup. C.1./66-17
,
730
SUPREME COURT
REPORTS
(1966] 2 S.C.R.
the assessment year, 1948-49, dated August 21, 1949. The order
A
of the Income-tax Officer specifically stated that even the balancesheet for the period ending March 31, 194 7 showed that the difference on realisation of assets stood at Rs. 1,25,783/, and it thus
appeared that the company was dealing in securities. The Revenue
thus claimed to assess the surplus on the realisation of the investments as th~ profits of a business under s. l 0, and its claim has been
upheld. I fail to see how the Revenue can take an inconsistent
stand and claim that the activity of investment was not a business
activity of the company.
B
The Tribunal also found that the entire business of the company was not sold to the Punjab Government as a going concern and
the company continued to own and hold considerable assets not
appertaining to the Lahore licence.
The company sold and disposed of only its undertaking relating to the Lahore license, on
September 5, 1946. Even then, the Punjab Government did not
c
take up all the business debts and liabilities qf the undertaking. The
company continued to remain liable to the old consumers in respect
D
of their deposits. The company continued to pay interest on these
deposits to the consumers. In paragraph 12 of its order dated
December 8, 1951, the Tribunal observed, and, in my opinion,
rightly:
"If payment of interest on consumers deposits was a
proper business expense in the preceding years, we do not
see why or how its character changed in the years under
review."
E
The Tribunal rightly pointed out that the activity of making
lists and valuing the assets of the company for the purpose of ascertaining the price of the Lahore undertaking from the Punjab GovernF
ment is not a business activity of the company. But, looking at the
other facts and circumstances of the case and the relevant authorities
on the point, the Tribunal came to the clear conclusion that the
company had not ceased to carry on its business. There is enough
material on the record to support this finding.
There is no set formula for determining whether in a given case .
a company is carrying on business. For the right understanding of
G
the matter, one must import a little common sense.
From the
shareholders'. and the directors' point of view, the company was
undoubted!Jc carrying on business during the relevant accounting
periods. From the popular point of view, what the company did
H
during these years was a business activity. Again, if the question
arose whether the company was carrying on business during these
.;
'
J.
~
••
T
•
C.l.T. V. LAHORE ELECTRIC co. (Bachawat, J.)
731
A years for the purpose of s. 20 of the Code of Civil Procedure, I
have no doubt in my mind that the answer would be in the affirmab .·e.
From whatever point of view the matter is looked at, the
coaclusion is irresistible that the company was carrying on business
during the relevant accounting years. There is ample material on
which the Tribunal could come to this finding, and I see no reason
B for disturbing its finding.
In the result, the appeals are dismissed with costs.
ORDER
In accordance with the majority Judgments, the Appeals are
C
allowed with costs here and below.