Holding

The entire profit of the glass factory accrued to Vibhuti Glass Works and was fully assessable to it; no part of the profit was assessable to the State Government.

Summary

Vibhuti Glass Works, a public limited company, mortgaged its glass factory and obtained a loan from the Industrial Finance Corporation on the condition that the Uttar Pradesh Government manage the factory for 20 years and receive a share of profits if they exceeded a prescribed limit. During the assessment year 1962-63 the factory earned a profit of Rs.92,960 while the company as a whole incurred a loss. The company argued that the profit should be taxed in the hands of the State Government or at most half of it, claiming an overriding title under the lease deed. The Income Tax Officer, the appellate authorities and the High Court held that the entire profit accrued to the assessee and was merely applied by the State Government to discharge the company's debts. The Supreme Court affirmed this view, stating that the income accrued directly to the assessee, there was no overriding title, and the profit was insufficient for the State Government to claim its share. Consequently, the whole profit was assessable to Vibhuti Glass Works and the appeal was dismissed.

Issues considered

Whether the profits of the glass factory accrued to Vibhuti Glass Works under the lease deed with the State Government.
Whether, if the profits accrued to the assessee, only half of such profits should be assessable to the assessee with the other half assessable to the State Government.
Whether an overriding title existed under Section 28 of the Income Tax Act in the present arrangement.

Legislation cited

Income Tax Act, 1961s. 28

Subjects

Income TaxSection 28Accrual of incomeLease deedOverriding titleProfit sharingCorporate tax assessmentState government management

Judgment

VIBHUTI GLASS WORKS
A
v.
COMMISSIONER OF INCOME TAX, LUCKNOW

APRIL 28, 1989

,.
·-._ [R.S. PATHAK, CJ AND RANGANATH MISRA, J.] B
I

Income Tax ;I.ct, 1961: Section 28-Income-Accrual of-
Factory owned by assessee-State Government allowed to manage for
20 years as condition for grant of loan-Profits earned-Applied by
managing State Government for paying assessee's debts-Whether
assessee assessable.
c
The assessee Company had a glass factory besides other bnsiness.
Since the glass factory business had, been suffering losses for several
years, resulting in increasing debt, the assessee took loans from the
State Government and mortgaged the land, buildings and machinery.
Later, under a deed executed by it the assessee allowed the State D
Government to take over running of the glass factory for a period of 20
years and permitted it to have a share of the business, if and when they
exceeded a prescribed limit, as conditions for guaranteeing repayment
of a loan of Rs.20 lakhs granted by the Industrial Finance Corporation.

During assessment proceedings for the assessment year 1962-63, E
the assessee contended that the profits earned by the glass factory
business during that period were not assessable in its hands, but in the
hands of the State Government, which had taken over the factory and
was running the business, and that, in any event, only half of the profit
could be included in its assessment as the State Government was en-
titled to SO per cent of profits under the deed. Rejecting the contentions, F
the Income-tax officer held that the assessee was liable to be assessed in
----' respect of the entire profits earned by the glass factory.

The assessee's appeals were dismissed hy both the Appellate
Assistant Commissioner and the Appellate Tribunal. On a reference
made at assessee's instance, the High Court affirmed the Tribunal's G
finding that the entire profits of the factory, and not half of them
accrued to the assessee. It also rejected assessee's contention that the
income was diverted through an overriding title before it reached the
assessee.

Dismissing the appeal of the assessee, this Court, H

797
798 SUPREME COURT REPORTS (1989] 2 S.C.R.

HELD: The present case is one where the income accrued to th~ }.
A
assessee directly and was merely, upon such accrual, applied to dis-
charge an obligation of the assessee. [80IB]

Although the Deed executed by the assessee is described as a
lease-deed and provides that the glass factory is demised to the State
B Government, in substance possession of the factory was transferred ta {.-
the State Government only for the purpose of enabling it to manage a5' .
run the business. (800 F] . \

The entire income earned during the year under consideration
was the income of the assesee and was merely applied hy the managing
State Government for the payment of the assessee's debt, and there was
c no over-riding title. The profits earned during the year under consid- •
eration were not sufficient for the State Government to enjoy a share in r
the profits in accordance with t~e terms of the Deed, and therefore, no
part of the profits could be regarded as assessable in the hands of the
State Government. In point of fact, no part of the profits was actually
D taken by the State Government. [801C-D]

Commissioner of Income-tax, Bombay City II v. Sitaldas Tirath-
das, (1961] 41ITR367, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1442
E (NT) of 1975.

From the Judgment and Order dated 14.3.1974 of the Allahabad
High Court in I.T.R. No. 437of1971.

E.C. Agarwala for the Appellant.
F
S.C. Manchanda, Ms. A Subhashini and M.B. Rao for the ;..
Respondent. · -

The Judgment of the Court was delivered by

G PATHAK, CJ. This appeal by certificate granted by the Allaha-
bad High Court is directed against a judgment of the.High Court
answering the following questions in favour of the Revenue and
against the assessee in an income tax reference:

· "(l) Whether on the facts and in the circumstances of the
H •• case, and on a correct interpretation of the leasedeed
•

VIBHUTI GLASS WORKS v. C.I.T. [PATHAK, CJ.) .

dated 22.8.1960, the Tribunal was right in holding the
profits of the Glass factory during the relevant A
accounting year accrued to the assessee-company?

(2) If the answer to the question no. 1 is in the affirmative,
whether the Tribunal was right in holding that the en-
tire profits and not one half of the profits of the glass l B
factory during the relevant accounting year accrued to
the assessee-company?"

The assessee, Messrs. Vibhuti Glass Works is a public limited
company. It has a glass factory and also cames on other business. The
accounts of the glass factory are closed on 31 March each year, while
the assessee closes its accounts on 30 September each year. We are c
concerned with the assessment year 1962-63.

For several years the glass factory business had been suffering
losses resulting in ir.creasing debt. It took heavy loans from ·the
Banaras State Bank, Varanasi, for which purpose its stocks and stores D
were hypothecated to the Bank. It also took loans from the Uttar
Pradesh Government and the land, buildings and machinery were

-+- mortgaged accordingly. The assessee found it difficult to emerge out of
its financial embarrassment. It discovered also that it needed certain
equipment in order to produce better quality goods and also required
funds for its working capital and for repaying loans to other creditors. E
It approached the Industrial Finance Corporation, New Delhi, and the
State Finance Corporation for financial assistance and the Industrial
Finance Corporation agreed to grant a loan of Rs.20 lakhs on condi-
tion (a) that the State Gov.emment guaranteed repayment and (b) that
· the State Government postponed their charge under the mortgage
\ deeds and the Industrial Financial Corporation was allowed to have F
1
· the first charge. The State Government agreed to those conditions
~ provided the assessee allowed the State Government to take over the
running of the glass factory for a period of 20 years. The State Govern-
ment also stipulated that if and when the profits of the business
exceeded a prescribed limit, a share of those profits would go .to the
State Government. The assessee agreed to this arrangement and G
--{ executed a document dated 22 August, 1960_ incorporating the
requisite conditions.

For the relevant accounting period the glass factory business
disclosed a profit of Rs.92,960 while the assessee suffered a loss of
Rs.3,47,656"according to its separate profit and loss account. During H
800 SUPREME COURT REPORTS [1989] 2 S.C.R.

assessment proceedings tor the assessment year 1962-63 it was con- ~
A
tended by the assessee before the Income Tax Officer that the profit of
Rs.92,960 earned by the glass factory business was not assessable in .
the hands of the assessee but in the hands of the Uttar Pradesh
Government which had taken over the factory and was running the
business. It was contended that in any event only half of the profits
B could be included in the assessment of the assessee, the remaining
profit being assessable in the hands of the State Government whi~ t
was entitled to 50 per cent of the profits under the Deed dated "

-
August, 1960. Both contentions were rejected by the Income Tax
Officer, who held that the assessee was liable to be assessed in respect
of the entire profits earned by the glass factory. He set off the profit l'

c against the loss declared by the assessee and computed a net loss of
Rs.2,54,785. /
,...
The assessee appealed to the Appellate Assistant Commissioner
of Income Tax, but without success. A second appeal by the assessee
filed before the Income Tax Appellate Tribunal was also dismissed. At
D the instance of the assessee the Appellate Tribunal referred the two
j
questions of law set forth earlier to the High Court of Allahabad. The
High Court considered the various provisions of the Deed dated 22
August, 1960 and answered both the questions in favour of the
Revenue and against the assessee. ~
E It is apparent that this appeal must be disposed of on a considera-
tion of the terms of the Deed dated 22 August, 1960. A perusal of the
conditions set forth in that document discloses that the State Govern-
men! was given the power to manage the glass factory business for a
..
period of 20 years from the date it assumed possession. Although the
Deed is described as a lease-deed and it provides that the glass factory
"f
F is demised to the State Government, in substance possession of the
glass factory was transferred to the State Government only for the
purpose of enabling it to manage and run the business. The High Court )...._
has given good reason for reaching that conclusion.

Clause (c) of paragraph 7 of the Deed provides "that if upon the
G expiration or sooner determination of this demise it is found that the ,___
working of the factory has shown profits after meeting the entire
liabilities of the company the balance profits, after accounting for all '~
charges and expenses incurred by the State Government, shall be
t
divided between the company and the Governor in equal proportion."

H It was contended by the assessee before the High Court that the

(~!'
VIBHUTI GLASS WORKS v. C.i.T. [PATHAK, CJ.] 801

-~ income was diverted through an overriding title before it reached the A
assessee. The High Court, in our opinion, has rightly rejected the
contention, holding that there was no overriding title and in fact it was
a case of mere application of the income. The proper test to be applied
in such a case has been laid down by this Court in Commissioner of
.Jncome-tax, Bombay City II v. Sita/das Tirathdas, [1961) 41 ITR 367
and we are satisfied that the present case is one where the income B
y .accrued to the assessee directly and was merely applied upon such
)accrual to discharge an obligation of the assessee. The entire income
' earned during the year under consideration was the income of the
assessee and was merely applied by the managing State Government
• for the payment of the assessee's debts.
c
We are also in agreement with the High Court that the profits
-..{ earned during the year under consideration were not sufficient for the
State Government to enjoy a share in the profits in accordance with
the terms of the Deed, and no question, therefore, arises of any part of
the profits being regarded as assessable in the hands of the State
Government. In point of fact, it appears that no part of the profits was D
actually taken by the State Government.

In the result, the appeal fails and is dismissed but in the circum-
-t stances there is no order as to costs.

N.P.V. Appeal dismissed . E

•

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