(Appeals from the judgments and orders, dated March 14, 1978, and 2nd July, 1.979 of the Madras High Court in Tax Cases Nos.228 of 1974 and 215 of 1975, respectively).

Income-tax---

----Non-resident---Income---Receipt---Collaboration agreement---Indian company to pay royalty to non-resident collaborator on all sales---Royalty to be remitted to non-resident in pounds sterling---Indian company crediting royalty to account of non-resident in its account books---Credit entry amounts to receipt of income---Non-resident liable to tax---Method of accounting of non -resident not relevant---Indian Income. Tax Act, 1961; Ss.5(2) & 145.

Under a collaboration agreement between the appellant, a non-resident company, and an Indian company, the appellant was entitled to a royalty of five per cent. on all sales effected by the Indian company. The royalty less the Indian tax had to be remitted to the appellant in pounds sterling. The Indian company credited the royalty to the appellant in its account books. With respect to its Indian income, the appellant filed its returns through the Indian company. For the assessment years 1967-68 and 1968-69, the appellant filed its returns disclosing the royalty in which it was stated that appellant was maintaining its accounts on mercantile basis. For the assessment years 1969-70 and 1970-71, the appellant admitted the royalty but filed nil returns claiming that it was maintaining its accounts on cash basis and that no part of the royalty has been received by it and, that, therefore, nothing was taxable. The Income tax Officer completed the assessments for the assessment years 1967-68 and 1968-69 on the basis of the returns and, rejecting the claim of the appellant for the assessment years 1969-70 and 1970-71, brought to tax the royalty income on the basis that it was maintaining its accounts on mercantile basis. The assessments were confirmed by the Appellate Assistant Commissioner. On further appeal, the Appellate Tribunal found that the appellant was not following any particular method of accounting over the past years and, therefore, the question of the method of accounting adopted by the appellant had to be examined afresh and remanded the matter to the Income-tax Officer with the direction that, if it was found that the appellant was maintaining its accounts on cash basis in respect of royalty, it should be assessed on cash basis. On a reference at the instance of the Department, the High Court, inter alia, held that, even if the appellant was maintaining its accounts on cash basis, it was liable to tax under section 5(2) (b) of the Income-tax Act, 1961, on the basis of accrual of income in India and that the Tribunal was in error in remanding the matter. On appeal to the Supreme Court:

Held. that the credit entry of the royalty to the account of the appellant in the books of the Indian company amounted to receipt of the royalty by appellant and it was accordingly taxable. It was immaterial when the appellant actually received it in the U.K. and the method of accounting adopted by the appellant was irrelevant and, therefore, the order of remand made by the Tribunal was unnecessary.

The Supreme Court did not find it necessary to express any opinion on the questions whether, as held by the High Court, (i) there was conflict or inconsistency between section 5(2) and section 145; and (ii) in the case of a non-resident like the appellant, clause (a) of section 5(2) had no application whatsoever and clause (b) of the section governed it irrespective of the fact whether it maintained its accounts on cash basis or mercantile basis.

Raghava Reddi v. CIT (1962) 44 TTR 720 (SC) applied.

CIT v. Standard Triumph Motor Co. Ltd. (1979) 119 ITR 573 affirmed on a different ground.

CIT v. McMillan & Co. (1958) 33 ITR 182 (SC) and Keshav Mills Ltd. v. CTT (1953) 23 ITR 230 (SC) ref.

Uttam Reddy, Senior Advocate (Atul Sharma and A.V. Palli, Advocates and Ms. Reena Agarwal, Advocate for E.C. Agrawala, Advocate with him) for Appellant.

G. Viswantha lyer, Senior Advocate (T.V. Ratnam and P. Parames waran, Advocates with him) for Respondent.

JUDGMENT

B.P. JEEVAN REDDY, J: --These appeals are preferred by the assessee against the judgment of the Madras High Court (see (1979) 119 ITR 573) answering the income-tax reference made at the instance of the Revenue, against the assessee. The assessment years concerned are 1967-68, 1968-69, 1969-70 and 1970-71. The question of law which was referred for the opinion of the High Court under section 256(2) of the Income-tax Act, 1961, is (at page 574):

"Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the royalty amounts should be assessed on cash basis for 1967-68, 1968-69 and 1969-70 assessment if the books and balance-sheet of such receipts were found to be maintained on cash basis and in directing fresh assessment on such basis?"

In the paper-book supplied by the assessee-appellant, the statement of the case is not available nor are the orders of any of the authorities supplied. We are, therefore, obliged to draw the facts from the judgment of the High Court, which we presume are drawn from the statement of the case. As a matter of fact, the facts require to be appreciated clearly for a proper decision of the question arising herein.

The assessee, Standard Triumph Motor Co. Ltd. is a non-resident company, having its place of business at Coventry in the United Kingdom. It entered into a collaboration agreement with the Standard Motor Products of India Ltd. (Indian company), in November, 1939, whereunder the assessee was entitled to royalty of five per cent. on all sales effected by the Indian company. This amount of five per cent. less the Indian tax had to be remitted to the assessee in sterling currency. The assessee's accounting year was the year ending September 30. With respect to its Indian income, it was filing its returns through the Indian company.

The collaboration agreement between the assessee and the Indian company expired in the year 1965. It was renewed. The renewed agreement too expired in November, 1970.

For the assessment year 1967-68 (year ending September 30, 1966 ) and 1968-69 (year ending September 30, 1967), the assessee filed returns in which it stated that it was maintaining its accounts on mercantile basis. It did not dispute its liability to assessment. In these returns, it disclosed a royalty income of Rs.72,600 and Rs.4,57,311, respectively. When it came to filing of the return for assessment year 1969-70 (year ending September 30, 1968), the assessee admitted a royalty of Rs.9,25,257 but filed a nil return saying that it was maintaining its accounts on cash basis and not on mercantile basis, that no part of the royalty amount has been received by it and, therefore, nothing is taxable. For the next assessment year 1970-71 (year ending September 30, 1969) as well, it took the sane stand. The Income-tax Officer completed the assessment for the first two assessment years on the basis of the returns. For the assessment years 1969-70 and 1970-71, however, he refused to accept the assessee's plea that it was maintaining its accounts on cash basis. He held that it was maintaining its accounts on mercantile basis alone and, accordingly, brought to tax the royalty amount disclosed.

The assessee filed appeals against the assessment relating to all the four years. In these appeals, it took the stand even with respect to the accounting years relevant to the assessment years 1967-68 and 1968-69, it has been maintaining accounts on cash basis and since it did not actually receive any income in all these four years, no tax is payable by it. Its case was that there was "no actual payment" of the royalty by the Indian company. It stated that though the Indian company had credited (the amount) to the assessee in its account books for the relevant years (accounting year for the Indian company is stated to be calendar year). The assessee did not actually receive the amount nor did it take credit for the said amounts in its books at Coventry. The Appellate Assistant Commissioner dismissed the appeals holding that the assessment orders for the past years relating to the assessee reveal that its method of accounting was mercantile, that for the assessment year 1967-68, the assessee did never contest its liability to be taxed on the amounts disclosed and further that it was not open to it to change the method of accounting to suit its convenience without the approval of the Income-tax Officer. The assessee carried the matter in further appeals to the Tribunal. It was contended by the assessee before the Tribunal that it was not following any particular method of accounting regularly in the past years, that it was the Indian company which was finally filing the returns of income on behalf of the assessee by incorporating the figures as per its profit and loss account, that the Indian company was not aware of the assessee's system of accounting in regard to royalty and that, therefore, it had committed a mistake in filing the returns for the assessment years 1967-68 and 1968-69. The assessee submitted that, as soon as it noticed the said mistake, it corrected the same and filed the return for the assessment year 1969-70 by correctly showing that the method of accounting was cash basis. The appeals were allowed by the Tribunal. The Tribunal held that the assessee had not been following any particular method of accounting regularly over the past years. For example, it said, for the assessment year 1963-64, it did not say anything regarding the method of accounting. For the assessment year 1964-65, it said it was on cash basis. For the assessment years 1967-68 and 1968-69, it stated it was maintaining accounts on mercantile basis and again for the two subsequent years, it stated it was on as cash basis. The Tribunal was, therefore, of the opinion that the question of the method of accounting adopted by the assessee must be examined afresh and, for that purpose, allowed the appeals and remanded the matter to the Income-tax Officer. The Tribunal gave liberty to the parties to adduce additional evidence in that behalf. It directed further that, if it is found that the assessee was maintaining its accounts and balance-sheets on cash basis in respect of the royalty. It should be assessed on cash basis.

On a reference made at the instance of the Revenue, the High Court answered the question in the negative, i.e. in favour of the Revenue and against the assessee. It would be appropriate at this stage to notice the contentions urged by the assessee and how they were met by the High Court. Though the High Court has not set out the arguments of the assessee as such, the arguments advanced can easily be gleaned from the judgment. The assessee reiterated its contention that, though the Indian company made a credit entry in the account of the assessee in its books, it did not actually receive the amount. The argument appears to be that the assessee can be said to have received the royalty amount only when it receives the same in the U.K. in the shape of pounds and makes an entry to that effect in its own books at Coventry. Since it is maintaining its accounts, with respect to the said royalty, on cash basis, it argued, receipt means receipt in the U.K. Section 145 was relied upon by the assessee to say that the method of accounting regularly adopted by an assessee is binding upon the Department. On that basis, it was argued that, if the assessee is proved to have maintained its accounts with respect to royalty amount on cash basis, then there is no receipt until it is received by it in U.K. It is this argument which led the High Court to say that acceptance of the said argument would mean escapement of income from taxation in India altogether. This is what the High Court said (at page 582): "If the contention of the assessee that the royalty should be assessed to income-tax only on its actual receipt under section 5(2) (a) of the Act on the ground that it maintains its accounts on cash basis is accepted, the income could not be taxed at all as it would be received in England and not in India. The assessee company, a non-resident receiving its income outside India could be assessed to tax only under section 5(2)(b) of the Act on accrual basis. Section 5(2)(a) cannot be made applicable to such an assessee. In the case of a non-resident to whom income accrues in India, section 5(2)(a) will have no application, unless the non-resident receives income in India. On the facts of this case, it is clear that that eventuality will never arise in regard to the income with which we are concerned, because that income will have to be remitted to the non resident by obtaining an irrevocable letter of credit and will thus be received only outside India. Pursuing the said reasoning, the High Court held further (at page 528):

"So it is clear that there can be cases of non-residents to whom section 5(2)(a) will never apply in regard to a particular income. The question then is, whether in such circumstances the assessee concerned (non-resident to whom income had accrued in India) can insist that since he has kept his accounts in regard .to that income on the cash basis, he is not liable to be taxed on the accrual basis. In other words, the question is whether section 145(1) can be applied in such circumstances. The effect of applying the section would be to take the income outside the purview of taxation, though the charge of tax on that income had taken effect on the accrual basis. Further, no occasion for imposing tax on receipt outside India would arise in the case of a non-resident, because section 5(2)(a) will apply only to receipt in India. In such circumstances, to apply section 145(1) would be to defeat the charge under section 4 and to obliterate the provisions of section 5(2)(b) and let income which is taxable escape tax. Such a result is not certainly intended by the statute. Section 145(1) is only an enabling provision to effectuate the charge. The section cannot be used for destroying the charge to tax and the provisions of section 5(2)(b), though by merely looking at the wording of section 145(1) it may appear that in all cases the method of accounting must be followed, unless in any case where the accounts are correct, but the method is such that, in the opinion of the Income-tax Officer, the income cannot properly be deduced therefrom.

But it must be remembered that section 145 is only a machinery provision and cannot qualify the charging section so as to make the latter otiose. So, section 145(1) should not be permitted to be applied in such circumstances as those which arise from the facts of this case. It is, therefore, immaterial whether the assessee is keeping his accounts in regard to a particular income regularly on the cash basis. Even if the assessee is keeping his accounts on the cash basis in regard to his income, the assessee is liable to tax under section 5(2)(b). To hold otherwise would be to take the income outside the purview of taxation under the Act, though such income had accrued in India to a non-resident and under section 5(2)(b) the charge to tax had taken effect and there is no possibility of section 5(2)(b) ever coming into operation. We cannot give to section 145(1) such an overriding effect as defeat the charge and the provisions of section 5(2)(b)."

In this Court, learned counsel for the assessee contended that so far as the royalty income is concerned, the assessee was maintaining its accounts at Coventry in the United Kingdom on receipt basis. Its accounting year was the year ending on September 30 of each year whereas the accounting year of the Indian company was the calendar year. Notwithstanding the stipulation in the collaboration agreement for half-yearly remittances, the practice was that the Indian company was determining the amount of royalty at the end of its accounting year. This amount was credited to the account of the assessee in the account books of the Indian company, but mere crediting to the account of the assessee in the books of the Indian company does not amount receipt of income by the assessee. Receipt is only when the amount is remitted to the United Kingdom in accordance with the agreement. Counsel submitted that the assessee was not maintaining any particular method of accounting regularly in respect of the said royalty amount and that the alleged statement in the returns relating to the assessment years 1967-68 and 1968-69 to the effect that it was maintaining its accounts on mercantile basis was an incorrect statement made by the Indian company which was not aware of the true state of affairs relating to the assessee's accounts. Learned counsel submitted that all that the Tribunal has done is to direct an inquiry to find out the true state of affairs, viz, whether the assessee was maintaining its accounts on mercantile basis or on cash receipt basis in so far as the royalty amount is concerned. He submitted further that, since the Appellate Assistant Commissioner exercises all the powers of an assessing authority, it was perfectly open to the assessee to raise the contention relating to the method-of accounting even with respect to the assessment years 1967-68 and 1968-69, in the appeals. When the assessee has not actually received any royalty income from the Indian company, it is not expected to bring money from the United Kingdom for paying its taxes in India, learned counsel contended.

The collaboration agreement between the assessee and the Indian company is as old as 1939. According to its own case, the assessee has been filing its income-tax returns in India through the Indian company. It is true that the agreement contemplated royalty amount being remitted in sterling currency to the U.K, but it cannot be said that, until it is so remitted to and received in the U.K, the assessee has not received the income. The practice, evidently, was that the Indian company was maintaining an account pertaining to the assessee in its books. After it made up its accounts at the end of the calendar year and determined the royalty amount payable to the assessee, the Indian company was crediting the said amount to the account of the assessee in its books. This was treated as income by the assessee in all these years. The returns filed by the assessee even with respect to assessment years 1967-68 and 1968-69 were based upon the said premise. In the said returns, the assessee declared a particular amount of income and offered the same for taxation. It did not take the stand that the said credit entry in the books pf the Indian company does not give rise to income in India nor did it ever say that the receipt in the U.K in the shape of sterling pounds alone constitutes income or, for that matter, receipt of income. It may also be noticed that in its returns relating to the assessment years 1967-68 and 1968-69, the assessee stated that it was maintaining its accounts on mercantile basis. Only in the returns relating to the assessment year 1968-69, did it raise the plea that it was maintaining its books, with respect to the said royalty amount, on cash receipt basis. (The Tribunal appears to have stated that, for the year 1964-65 too, the assessee had stated "cash basis", but it is not clear for what purpose the said plea was raised. One thing is clear; the assessee did not say at any time earlier to assessment year 1968 59 that receipt of money in the U.K. alone is receipt by it). It also took the rather strange plea that the Indian company was not aware of the method of accounting adopted by the assessee and, therefore, it made the aforesaid incorrect statement in the returns relating to the years 1966-67 and 1967-68. The Appellate Assistant Commissioner refused to countenance the plea. It is significant to notice that the assessee did not say that the method of accounting adopted by it for all its income was on cash basis. It confined the said plea to its Indian income alone. The said plea, it should be noticed, had no significance by itself. Its significance lies when we examine the said plea in the light of the further contention of the assessee that it did not actually receive the amount from the Indian company. We put a pointed question to learned counsel for the assessee whether it was the assessee's case at any stage that the credit entry made in the account books of the Indian company in favour of the assessee was a bogus or a mere make-believe entry. Counsel replied that it was not its case at any point of time. His contention was that the mere entry in the account books of the Indian company does not amount to receipt of income by the assessee. The assessee had been very careful not to say that the Indian company did not place the said amount at the disposal of the assessee. Indeed, he replied to a further question by us that, even if the said amount were put by the Indian company in a bank to the credit of the assessee, it could not have been said that the assessee has received the amount. In other words, according to learned counsel, the said royalty income can be said to have been received by the assessee only when it received the same in the U.K It is this extreme argument which led the High Court to make the observations quoted hereinbefore. It would immediately be evident that this was not the basis put forward by the assessee at any point of time till it came to the filing of return for the assessment year 1969-70. We are not suggesting that it is estopped from doing so. We are only saying that the said plea was not and is not acceptable. The receipt of the said income in the U.K., in our opinion, is immaterial. It may happen that a non-resident assessee may choose not to repatriate his income/profits to his parent country; he may choose to plough back the said amount in India for such purposes as he may choose. It cannot be said: in such a situation that he has not received the income in India. In Raghava Reddi v. CIT (1962) 44 ITR 720 (SC), the non-resident company instructed the assessee, in view of the difficulties in this country in remitting the monies abroad, to credit the amount due to it on account of commission in the account books of the assessee awaiting further instructions regarding its remittance. The assessee was assessed as the statutory agent of the non-resident company. The Income-tax Officer assessed the amounts credited in the accounts of the assessee as the income of the non-resident company. The contention of the assessee was that mere entry in the books of the assessee cannot amount to receipt and that the amounts cannot b-; assessed until they were actually paid over to the non-resident company or dealt with according to its directions. Rejecting the contention, it was held by this Court that, as soon as the monies were credited to the account of the non-resident (Japanese) company, it must be that it "received" the same and are taxable. Hidayatullah. J. speaking for the Constitution Bench, observed (at page 725):

"This leaves over the question, which was earnestly argued, namely, whether the amounts in the two account years can be said to be received by the Japanese company in the taxable years territories. The argument is that the money was not actually received, but the assessee-firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt, clause (a) cannot apply. We need not consider the fiction, for it is not necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese company desired that the assessee firm should open an account in the name of the Japanese company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee-firm as a depositee. The money then belonged to the Japanese company and was held for and on behalf of the company and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in the bank to the account of the company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese company, and this attracts the application of section 4(1)(a). Indeed, the Japanese company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee."

Applying the above principle, it must be held in this case that the credit entry to the account of the assessee in the books of the Indian company does amount to its receipt by the assessee and is accordingly taxable and that it is immaterial when it did actually receive it in the U.K.

In this view of the matter, it must be held that, in the circumstances of the case, the method of accounting adopted by the assessee for the relevant accounting years is really irrelevant. As explained hereinbefore, the very concept of "receipt" as espoused by the assessee is untenable and unacceptable. The order of remand made by the Tribunal was thus unnecessary. In the circumstances, we do not think it necessary to express any opinion on the question whether there is any conflict or inconsistency between section 5(2) and section 145 of the Act nor is it necessary to express ourselves on the view expressed by the High Court that, in the case of a non-resident assessee like the petitioner, clause (a) of subsection (2) of section 5 has no application whatsoever and that section 5(2)(b) governs it irrespective of the fact whether it maintains its accounts on cash basis or mercantile basis. The question referred did not really arise in the facts and circumstances of the case and need not have been answered. The Tribunal shall complete the assessments in question in the light of this judgment.,

In view of the above, it is unnecessary for us to deal with the decisions cited by learned counsel for the assessee. The first decision cited by him is in CIT v. McMillan & Co. (1958) 33 ITR 182 (SC) regarding the powers of the appellate authority. The second decision is in Keshav Mills Ltd. v. CIT (1953) 23 ITR 230 (SC). The principle of the decision does in no way support the principle contended for by the appellant.

The appeals accordingly, fail and are dismissed. No costs.

M.BA./2449/TAppeals dismissed.