S.R.M.S. Subrahmanyan Chettiar vs Commissioner of Income Tax

This is a reference by the Commissioner of Income Tax, Madras, u/s 66(3) of the Indian Income Tax Act of 1922 for the decision by the High

Court of the following question, viz., ""Whether the sum of Rs. 63,624 is assessable to Income Tax."" The assessee is S. R. M. S. Subramanian

Chettiar who is a Nattukottai Chetti, residing at Nemathampatti in the Ramnad District. He is a professional money-lender carrying on money-

lending business at his headquarters (Nemathampatti) and also at Muar in the Federated Malay States. He is also a partner in a money-lending firm

known as S. R. M. S. Firm, Meiktila in Burma. He was assessed to income tax in the year 1930-31 on the basis of the income derived by him in

the previous Tamil year ""Sukla"". One of the items of income derived is a sum of Rs. 63,624 which is stated to be the profit derived by the assessee

from the sale during the year of account of certain house properties in Rangoon. The question for determination is whether this profit is chargeable

to Income Tax or not.

A brief statement of the facts relating to the acquisition and sale of these properties is necessary. One M. L. R. M. A. Firm, Rangoon, had a

mortgage executed in their favour in 1910 by one S. A. Seedat for a sum of Rs. 80,000. The aforesaid firm appears to have effected an equitable

sub-mortgage of their rights in the original mortgage-deed to one Malladi Sathialingam. The claim under the sub-mortgage was the subject of

litigation in the Privy Council in 1918, when the present assessee got an assignment in his favour of the right, title and interest of the original

mortgagees (M. L. R. M. A. Firm) for a sum of Rs. 4,000 from one Singaram Chetti, who had by that time become the owner of the mortgage

right by reason of his purchase in Court auction in execution of a money decree obtained against M. L. R. M. A. Firm. Subsequent to this

assignment in favour of the assessee, the appeal in the Privy Council in which the present assessee got himself impleaded, was decided against

Sathialingam and the result was that the equitable sub-mortgage held by Sathialingam became unenforceable on the mortgaged properties, as it was

found to be invalid. The encumbrance on the original mortgage right having become nil, the assessee was in a position to file a suit in the Chief

Court of Rangoon in 1923 on the mortgage deed of 1910 as the assignee of the mortgagees'' rights thereunder for the recovery of a sum of Rs.

1,68,3000 as the aggregate of the principal and interest due. In that suit, the transaction was found to be an English mortgage and a decree was

given in favour of the assessee for the amount sued for with a direction that Seedat should pay the amount within six months from the date of the

decree (19th May, 1925), and that in default of payment within the prescribed time, he should be debarred from his right to redeem the mortgage.

In March 1926 the assessee entered into a compromise; with the original mortgagor, whereby certain house properties in Rangoon (the subject of

the mortgage) were delivered to the assessee in satisfaction of his claim under the mortgage. He retained these properties for a few years receiving

the rents and profits thereof, and keeping accounts for the receipts and expenditure relating to them till October 1929, when he sold the same for a

sum of Rs. 70,000. It was found by the Income Tax Officer that the assessee had incurred a net expenditure of Rs. 6,376 for the purchase of the

mortgage right and in the subsequent litigation relating to it. The difference between the sale proceeds of the properties and the outlay made by the

assessee, viz., Rs. 63,624 was treated as profit derived by him in this transaction and assessed to Income Tax. The legality of this assessment is

questioned by the assessee.

It is contended on his behalf, that the receipt of the sum in question in the year of account did not arise in the course of any business conducted

by him, but it was an isolated venture speculative and also casual or non-recurring in its nature. The question is, whether this income is exempt from

Income Tax u/s 4(3) (vii) of the Income Tax Act of 1922. By virtue of that clause, any receipts not being receipts arising from business or the

exercise of a profession, vocation or occupation, which are of a casual and non-recurring nature, are exempt from Income Tax. In order to claim

the privilege of this exemption it must be shown that the receipts are not those arising from business or the exercise of a profession and that the

receipts are of a casual and non-recurring nature. If in a particular case the receipts can be reasonably deemed to arise from a business or the

exercise of a profession, they would be chargeable to Income Tax, though casual and non-recurring in nature. Section 2, Clause 4, of the Income

Tax Act runs thus.--""Business includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or

manufacture."" It is unnecessary to consider for the purposes of this case whether the definition given is exhaustive or not. There is no doubt that the

assessee is a professional money-lender and was carrying on money-lending business in 1918, when he got an assignment of the mortgage in

question for a consideration of Rs. 4,000 as stated above. The Commissioner has rightly observed that the coming within the generally recognised

ambit of the money-lending business and cannot be deemed to be so disconnected with the profession of a money-lender, as to take it out of the

category of business carried on by the assessee. All that can be said is that the profit realised was extraordinary, in the sense, that it was beyond

the usual expectations of a money-lender in respect of a normal money-lending transaction. The fact that a particular transaction in a money-lending

business is speculative does not take it out of its category. Suppose an unscrupulous money-lender takes hold of an expectant heir or an

inexperienced youth in an opulent family eager for handling money, and takes a promissory note or mortgage bond for twice the amount actually

lent, and also stipulates for a high rate of interest. If he succeeds in realising the full amount due under such a promissory note or bond in the year of

account, would not the profit made thereby which includes not only the stipulated interest but also an extraordinary profit which stood the risk of

being disallowed in a Court of law if contested by the debtor, and was therefore speculative in nature, become chargeable to income tax ? Though

the transaction in question in this case may be said to be a special variety of money-lending business, it still partakes the essential characteristics of

a money-lending transaction.

In one portion of his reference, the Income Tax Commissioner states that it is perhaps not possible to link this up with his other transactions and

to say that it formed a part of his ordinary business or was undertaken in the course of that business. He states that though it is an isolated

transaction it was nothing else than an adventure in the nature of trade and the profits so derived was a business profit. This observation led to a

good deal of argument, but in the view we have taken as set forth, it is unnecessary to discuss the cases dealing with what is called an adventure in

the nature of trade. If it is simply deemed to bean adventure in the nature of trade, then we have to see, as observed by the Lord President in the

case of The Balgowne Land Trust Ltd. v. The Commissioners of Inland Revenue 14 Tax Cas. 684 whether it is a single plunge and if so whether it

is shown to the satisfaction of the Court that the plunge is made in the waters of trade. It is only in such a case we have to see whether such

speculative ventures have been systematically carried on, and this venture is one of a series of such transactions so as to indicate a continuity in the

occurrences of that king.

In another part of the reference the Commissioner has distinctly stated that though it is an isolated transaction speculative in character, it was not

essentially different in nature from the assessee''s other transactions, and it cannot be said that it was not entered upon as a matter of business. We

think that this observation is correct and is the proper legal inference from the proved facts. It appears that even the initial outlay of Rs. 4.000 for

the purpose of getting the assignment was outlay of the money which the assessee had lent to or deposited a firm at Rangoon known as S. M. A.

R., Rangoon. As observed by the Income Tax Officer this item of investment must appear in the assessee''s headquarter accounts, which he

however refrained from producing.

The facts of the present case bear a close resemblance to the facts of the case dealt with by the Bombay High Court in the case of

Commissioner of Income Tax, Bombay v. Sir Purushothamdoss Thakurdoss 2 I.T.C. 8. In that case, the assessee was found to be a cotton

merchant. At the time of a serious crisis in the cotton market, the assessee came to be appointed under a power of attorney as an agent for the sale

and disposal of all the cotton bales on behalf of the firm of Umar Sobhani. It was a venture of considerable magnitude, whereby the assessee

earned a very large sum by way of commission. Though it was found to be an adventure of a casual and non-recurring nature, it was still found to

be a profit connected with the business carried on by the assessee as a cotton merchant. Any receipts arising from the buying and selling of cotton

would no doubt be considered as profit arising from the trade or business of a cotton merchant. As regards the special kind of profit earned by

way of commission, MACLEOD, C.J., states thus at page 11:_The argument that receipts from an extraordinary transaction connected with

business such as the one in this case, which would not be likely to occur again for many years, can be placed in the same category as receipts

entirely disconnected with business or the profession or vocation or occupation of the assessee which might be considered of a casual and non-

recurring nature, cannot be accepted."" This observation is very pertinent to the facts of the present case. (Vide also the decision of a Bench of this

High Court in Board of Revenue, Madras v. R. M. A. R. M. Arunachalam Chettiyar 47 Mad. 197.

We therefore find that the sum of Rs. 63,624 is profit derived by the assessee in the year of account in respect of a transaction connected with

his money-lending business, and answer the question in the affirmative. The assessee will pay the costs of the reference to the Income Tax

Commissioner Rs. 250.