1985 Supreme(Raj) 736
RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.M.Kasliwal, S.N.Bhargava, JJ.
Pannalal Kothari - Appellant
Versus
Commissioner of Income - Respondent
D.B. Income tax Reference Application Nos. 43, 43-A, 43-B and 43-C of 1976.
Decided On : 9-10-1985
The managing director's remuneration is the personal income of the managing director and not the income of the Hindu undivided family.
Headnote:
INCOME TAX - Managing director's remuneration - Whether personal income of the managing director or income of the Hindu undivided family - Held, personal income of the managing director.
Fact of the Case:
The assessee, Pannalal Kothari, was appointed as the managing director of M/s. Mahalaxmi Cotton Mills, Beawar, for a period of five years. The company paid him a remuneration of Rs. 2,000 per month, which was credited in the books of M/s. Rai Bahadur Seth Kundanmal Kothari, Beawar, a firm consisting of the assessee and his brothers. The aggregate of the remuneration thus credited was transferred to the profit and loss account of the firm and divided equally amongst the partners.
Finding of the Court:
The court held that the managing director's remuneration was the personal income of the assessee and not the income of the Hindu undivided family. The court applied the test laid down in Raj Kumar Singh Hukam Chandji v. CIT, (1970) 78 ITR 33, and held that the remuneration was received by the assessee in his individual capacity for specific services to be rendered by him to the company. The court also held that the brothers had not made any investment in the company and the managing director's remuneration was not fixed on account of a return from such investment.
Issues: Whether the managing director's remuneration was the personal income of the assessee or the income of the Hindu undivided family.
Ratio Decidendi: The court held that the managing director's remuneration was the personal income of the assessee and not the income of the Hindu undivided family. The court applied the test laid down in Raj Kumar Singh Hukam Chandji v. CIT, (1970) 78 ITR 33, and held that the remuneration was received by the assessee in his individual capacity for specific services to be rendered by him to the company. The court also held that the brothers had not made any investment in the company and the managing director's remuneration was not fixed on account of a return from such investment.
Final Decision: The court answered the question of law referred to it in the affirmative and in favour of the Revenue. The parties were left to bear their own costs.
JUDGMENT
1. The above mentioned four references relate to the assessment years 1962-63, 1963-64, 1965-66 and 1966-67, respectively. As identical questions of law arise in all the four cases, the same are disposed of by one single order.
2. Briefly stated, the facts of the case as mentioned in the statement of the case are that Shri Pannalal Kothari, hereinafter referred to as " the assessee ", was working as the managing director of M/s. Mahalaxmi Cotton Mills, Beawar (hereinafter referred to as " the company "), during the relevant assessment years. He was appointed as managing director of the company by an agreement on May 7, 1960, for a period of five years, vide the resolutions of the board of directors of the said company. It was resolved in the resolutions that " the company should engage and employ Shri Pannalal Kothari as managing director who should serve the said company on the said terms and conditions herein set forth ........ "
3. According to clause (1) of the agreement, it was provided that the company shall employ Seth Pannalal as its managing director who shall serve and act as manager of the said company for a period of five years on a remuneration of Rs. 2,000 per month plus free use of the company's car with effect from January 1, 1960, unless determined earlier. Clause (2) of the said agreement enabled the managing director to appoint and dismiss officers, supervisory staff, clerks, workmen and servants in the employment of the company and to deal otherwise with the terms and conditions of their employment and of service, to draw, accept or endorse a bill of exchange, hundi or promissory note or other negotiable instrument or security on behalf of the company in the ordinary course of business of the company. He was further charged with the responsibility of maintaining proper books of account, files, etc., of the company. He was to keep and preserve in proper and safe custody useful and valuable papers, documents and deeds, etc. He was further entitled to carry out, run, and superintend contracts, business and other undertakings of the company and all the financial, commercial and other accounts and affairs of the company and to look after the effects and the properties of the company. Clause (3) of the agreement stipulated that the managing director shall be bound to attend diligently, faithfully and honestly to the business of the company to the best of his ability and skill possessed by him.
4. In accordance with the aforesaid agreement, the company paid to the assessee a remuneration of Rs. 2,000 per month. The aforesaid remuneration was credited in the books of M/s. Rai Bahadur Seth Kundanmal Kothari, Beawar, which was the firm consisting of Shri Pannalal and his brothers, namely, Shri Navratan Mal and Shri Sohan Lal. The aggregate of the remuneration thus credited in the books of the aforesaid firm was, at the end of the year, transferred to the profit and loss account of the firm. After deducting the shop expenses, motor expenses, salary, etc., whatever remained, was divided equally amongst the partners of the said firm in equal shares. The net profit as per the profit and loss account of the aforesaid firm, which remained with the firm for distribution amongst the partners during the years under consideration, was as below:
| Assessment year | Amount |
|
| Rs. |
| 1962-63 | 12,229 |
| 1963-64 | 12,974 |
| 1964-65 | 12,042 |
| 1965-66 | 14,451 |
5. The aforesaid firm had come into existence with effect from April 18, 1959, as a result of the partition in the joint family of the assessee consisting of the father, Shri Lalchand and brothers named above known as M/s. Kundanmal Lal Chand. Prior to partition, the said Hindu undivided family was carrying on business of managing agency of M/s. Mahalaxmi Mills Ltd., Beawar. The said company had 12,996 shares. Out of them, as many as 10,014 shares were held by the various descendants of Lal Chand and their family members. Each of the brothers namely, Navratan Mal,
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