T.L. Venkatarama Ayyar, J.
1. The question that arises for decision in this appeal is whether a sum of Rs. 1,23,719 paid by the respondent as commission to its managing agents on account of profits of its Karachi Branch can be allowed as deduction against the Indian profits. The respondent is a company registered under the Indian Companies Act, 1913, and is carrying on business in cotton. Its head office is in Bombay, and it maintains a branch at Karachi for purchasing cotton for shipment to Bombay or export direct to other places. Separate accounts are maintained and separate profits and loss statements are prepared for the business at Bombay and at Karachi. By an agreement dated 22-12-1947 the respondent appointed Messrs Parakh Cotton Company Ltd., as its managing agents, and under Cl. 4 of the agreement, the remuneration payable to them was fixed at 20 per cent. of the net annual profits.
2. During the accounting year 1-10-1947 to 30-9-1948 the respondent made a total profit of Rs. 15,63,504, of which Rs. 9,44,905 was earned in the business at Bombay and Rs. 6,18,599 at Karachi. On this, the commission payable to the managing agents as per Cl. 4 of the agreement was Rs. 3,12,699. The respondent debited a sum of Rs. 1,88,980 out of this amount in the profit and loss statement of the Bombay head office, being the 20 per cent. apportionable to the profits shown therein, and deducting this sum out of the total profits of Rs. 9,44,905 showed a sum of Rs. 7,55,925 as the net profits of the business at Bombay. It likewise debited a sum of Rs. 1,23,719 to the profit and loss statement of the Karachi branch, and deducting it out of the total profits of Rs. 6,18,599 earned by the branch, showed a sum of Rs. 4,94,879 as its net profits.
3. The respondent is resident and ordinarily resident in India, and therefore it would be chargeable to income-tax on its total world income. Accordingly, the Income-tax Officer took into account the profits earned both in India and in Karachi, deducted therefrom the entire commission paid to the managing agents, and after making certain adjustments, which are not material for the present purpose, determined the total income at Rs. 13,09,375. The correctness of this figure is not now in dispute.
4. As part of this income was earned in Karachi, that would also be chargeable to income-tax in Pakistan. To avoid the hardship arising from the same income being subjected to taxation twice over in the two Dominions. S. 49-AA of the Income-tax Act, as it stood before it was replaced by S. 49(b), provided that the Central Government may enter into an agreement with Pakistan... for the avoidance of double taxation of income, profits and gains under this Act". And in exercise of the powers conferred under this section, a notification was issued on 10-12-1947 providing for relief being granted against double taxation of income in the manner and to the extent provided therein. The Income-tax Officer having ascertained the total income assessable to tax under the law of this country at Rs. 13,09,375 proceeded to determined the extent of the relief to be awarded to the respondent in respect of the profits earned in Karachi and chargeable under the law of Pakistan. For this purpose, he accepted as correct the sum of Rs.4,94,879 which the respondent had shown as the net profits in the profit and loss statement for Karachi, and after making certain adjustments and deductions in accordance with Cl. 4 of the agreement and item 7(a) in the schedule annexed thereto, held that the amount in respect of which the respondent was entitled to abatement under the agreement was Rs,. 5,00,344.
5. The assessee preferred an appeal against this order to the Appellate Assistant Commissioner, and contended that the Income-tax Officer was in error in taking Rs. 4,94,879 given in the profits and loss statement for Karachi as the profits of the Karachi branch, because this figure had been arrived at after deducting a sum of Rs. 1,23,719 being the proportionate amount of the managing agency commission, but that the whole of it was payable at Bombay and was debitable to the head office, and that accordingly, the sum of Rs. 6,18,599 should have been taken as the profit of the branch and not Rs. 4,94,879. The Appellant Assistant commissioner disagreed with this contention, and confirmed the order of the Income-tax Officer. The respondent took the matter in appeal to the Tribunal, which held that under the terms of the managing agency agreement, the entire commission was payable at Bombay, and that accordingly no portion of it should be debited to the Karachi branch. In the result, the appeal was to that extent allowed. Thereupon, on the application of the Commissioner, the Tribunal referred the following question for the decision of the High Court :
"Whether on the facts and in the circumstances of the case, the amount of Rs. 1,23,719 paid to the managing agents as commission at 20 per cent, of the net profits of the Karachi branch, is allowable as a revenue deduction against the Indian profits of the assessee Company for the year of account"
6. This reference was heard by Chagla, C. J. and Tendolkar, J. They observed that there was considerable force in the contention on behalf of the Commissioner that the abatement to which the assessee would be entitled under the Agreement between this country and Pakistan would only be with reference to the net profits earned in Pakistan, which alone would be assessable to income-tax, and that the assessee firm itself having deducted a sum of Rs. 1,23,719 as managing agency commission expenses debitable to that branch, abatement should be allowable only in respect of Rs. 4,94,879 being the net profits as declared by it. But they held following the decision in Birla Brothers Ltd. v. Commissioner of Income-tax, 1951-19 ITR 623 [LQ/CalHC/1950/286] : (AIR 1952 Cal 194 [LQ/CalHC/1950/286] ) (A), that the managing agency Commission should in its entirety be debited to the Bombay branch, even though the duty of the managing agents lay in part in Karachi, and accordingly answered the reference in the affirmative. They, however, granted a certificate under S. 66-A of the Income-tax Act to appeal to this Court. That is how the appeal comes before us.
7. On behalf of the appellant, the learned Solicitor-General contended that the sum of Rs. 1,23,719 could not be added to the sum of Rs. 4,94,879 as the profits assessable to income-tax in Pakistan, because the entire commission of Rs. 3,12,699 due under the agreement had been deducted out of Rs. 15,63,504, the total income of the assessee, and it was only the net income of Rs. 12,50,804 that had been allocated, Rs. 7,55,925 for the business at Bombay and Rs. 4,94,879 for the Karachi business, and that to disallow Rs. 1,23,719 which had been included in the profit and loss statement of Pakistan would be to give relief twice over in respect of the same income. It was also contended that as the assessee had itself deducted that amount from the profits as business allowance in its profit and loss statement for Karachi and obtained relief in Pakistan on that footing, it was not entitled to claim relief in respect of that very amount under the terms of the Agreement between the two Dominions. For the respondent, Mr. Kolah contended that under the provisions of the Income-tax Act the respondent was not entitled to deduct Rs. 1,23,719, in the profits earned at Karachi, that in deducting that amount in the profit and loss statement for Karachi the assessee had made a mistake, and that, in fact, the Income-tax authorities in Pakistan who had originally admitted the deduction on the basis of the profit and loss statement had subsequently revised the assessment on the ground of error, and had disallowed it. He further contended that the question as to the relief to which the assessee was entitled under the Agreement between the two dominions was not the subject of reference under S. 66(1), and therefore did not arise for consideration. Now,. The question referred under S. 66 (1) for the decision of the court is simply whether the sum Rs. 1,23,719 is allowable a deduction against the India profits of the company, and though there is some discussion in the judgment of the High Court on the scope of the Agreement between the two Dominions and the principles deducible from the provisions thereof, the reference itself did not raise any such question, and we refer not to express any opinion thereon.
8. On the question of the admissibility of the deduction of Rs. 1,23,719, the contention of the appellant is that as the respondent had itself split up the commission of Rs. 3,12,699 paid to the managing agents, and appropriated Rs.1,23,719 thereof to the profits earned at Karachi and had debited the same with it, it was not entitled to go back upon it, and claim the amount as a deduction against the Indian profits.We do not see any force in this contention. Whether the respondent it entitled to a particular deduction or not will depend on the provision of law relating thereto, and not on the view which it might take of its rights, and consequently, if the whole of the commission is under the law liable to be deducted against the Indian profits, the respondent cannot be estopped from claiming the benefit of such deduction, by reason of the fact that it erroneously allocated a part of it towards the profits earned in Karachi. What has therefore to be determined is whether, notwithstanding the apportionment made by the respondent in the profit and loss statements, the deduction is admissible under the law.
9. Section 10(2)(xv) of the Indian Income-tax Act provides that in computing the profits of a business, allowance is to be made for any expenditure laid out or expended wholly and exclusively for the purpose of such business. Now, the respondent is carrying on business in cotton both in India and in Karachi.When as assessee carries on the same business at a number of places, there is for the purpose of S. 10, only one business, and the net profits of the business have to be ascertained by pooling together the profits earned in all the branches and deducting therefrom all the expenses. The fact that some of the branches are in foreign territories will make no difference in the position if the assessee is, as in the present case, resident and ordinarily resident within the taxable territories. Therefore, the profits earned in India and in Karachi have to be thrown together, and the expresses including the commission payable to the managing agents deducted therefrom, and it is the net profits thus struck that become chargeable under the Act. That is how the Income-tax Officer has worked out the figures. The respondent is therefore clearly entitled to a deduction of the whole of the commission of Rs. 3,12,699 paid to the managing agents including the sum of Rs. 1,23,719 against the Indian profits.
10. It should further be added that the apportionment of Rs. 1,23,719 in the profit and loss statement of the Karachi branch on which the appellant rests his argument is not warranted by the terms of the managing agency agreement .and is indeed opposed to them.Under that agreement, the managing agents are entitled to a 20 per cent. commission on the annual net profits of the company, and to ascertain those profits, one has to take into account the result of the trade in all its branches.In the present case, profits were earned during the accounting period both in Bombay and in Karachi, and the apportionment of the commission between the two branches makes no material difference in the result. But is might happen that the business at Bombay results in profits, while that at Karachi ends in loss. In that event, what the managing agents would be entitled to would be commission not on the profits made in Bombay but on the net profits after setting off the loss in the Karachi branch against the profits of the Bombay business. And that would also be the position if the business at Bombay resulted in loss, while that at Karachi ended in profit.The appropriation, therefore, of Rs. 1,23,719 as proportionate commission in respect of the profits of Rs. 6,18,599 earned at Karachi in the profits and loss statement for that branch is not in accordance either with the terms of the managing agency agreement, or with the rights of the respondent under the law.
11. The judgment of the court below is right, and this appeal must be dismissed with costs.
12. Appeal dismissed.
