Punjab & Haryana H.C : Whether the Tribunal was in error in rejecting the Revenue’s contention that when the directors of the Corporation were holding meetings, they could not be considered as Corporation employees and, therefore, relief of Rs. 7,500 was rightly granted by the AAC ?

High Court Of Punjab & Haryana

CIT vs. Haryana Financial Corporation Ltd.

Sections 37(2A), 37(1)

Asst. Year 1974-75

Gokal Chand Mital & S.S. Sodhi, JJ.

IT Ref. No. 77 of 1980

19th April, 1989

Counsel Appeared

Ashok Bhan with Ajay Mittal, for the Revenue : S.C. sibal, for the Assessee

GOKAL CHAND MITAL, J.:

Whether serving of tea, refreshment or lunch during meetings of the directors of the company or the corporation would be allowable as an expenditure under s. 37(1) or would be in the nature of entertainment expenditure covered by s. 37(2A) where ceiling has been placed in allowing the expenditure is the question to be resolved.

He Haryana Financial Corporation Ltd., Chandigarh, filed its return for the asst. yr. 1974-75 and therein claimed expenses of Rs. 16,745 for providing lunch and other refreshments to its directors and other persons during meetings. On scrutiny, the ITO found that most of the items pertained to tea and lunch served on different occasions which, according to him, were expenses on entertainment. He further found that some expenses were not connected with the business of the assessee. He disallowed Rs. 10,000 on an estimate basis.

On appeal, the AAC came to the conclusion that the expenditure to the tune of Rs. 2,055 could be said to be spent on entertainment or refreshment/lunch to customers/loanees. Out of Rs. 10,000, he disallowed the addition of Rs. 7,500.

On further appeal, the Tribunal maintained the order of the AAC. One of the points which is included in the referred question, raised on behalf of the Revenue before the Tribunal, was that a director may be an employee of the Corporation (assessee), but when he was given tea, refreshment or lunch during a meeting of the directors, such expenditure could not be considered as having been spent on the employees of the Corporation in the course of the business and such an expenditure could not be taken out of the ambit of s. 37(2A) of the IT Act, 1961 (for short “the Act”). This argument was rejected with the following observations :

“We, however, reject Shri Jain’s argument because the directors of the Corporation necessarily were its employees and here we should keep in view that the Corporation is a 100 per cent. subsidiary of the Haryana Government.”

5. On these facts, the Tribunal has referred the following question for opinion : “Whether the Tribunal was in error in rejecting the Revenue’s contention that when the directors of the Corporation were holding meetings, they could not be considered as Corporation employees and, therefore, relief of Rs. 7,500 was rightly granted by the AAC ?”

6. The question of excluding the amount spent on entertainment of customers, etc., came up for consideration before a Full Bench of this Court in CIT vs. Khem Chand Bahadur Chand (1981) 23 CTR (P&H) 319 : (1981) 131 ITR 336 (P&H) and it was held that such expenses could not be allowed under s. 37(1) of the Act, and were covered by s. 37(2A) of the Act. In taking this view, this Court dissented from the view taken by the Gujarat High Court in CIT vs. Patel Brothers & Co. Ltd. (1977) 106 ITR 424 (Guj). On behalf of the assessee, learned counsel has cited Maharaja Shree Umaid Mills Ltd. (No. 1) vs. CIT (1989) 175 ITR 70 (Raj) and CIT vs. Agarpara Co. Ltd. (1987) 167 ITR 866. In these cases, the view of the Gujarat High Court in Patel Brothers’ case (supra) has been followed. Since the Full Bench decision is binding, we are of the opinion that the expenses incurred by the assessee on the refreshment of its customers or its directors, even during the course of the business, would be expenses covered by section 37(2A) and would not be allowable except to the limit permissible by that provision.

7. It was then sought to be argued on behalf of the assessee that if a director is also an employee of the Corporation or the company, refreshment expenses incurred on him during the course of the business would be allowable as deduction under s. 37(1) of the Act. If a business house makes a provision to provide tea, breakfast, lunch or any other eatables to the employees, such an expense would be allowable as a business expense under s. 37 ( 1 ) of the Act. In this case, there is no such policy to provide any eatable to the employees of the Corporation. Whenever there were meetings of the board of directors, in these meetings, tea, snacks or lunch were provided and those expenses are sought to be excluded. Even if the directors are also employees of the Corporation, while conducting the meetings of the board of directors, they do not act as employees. For coming to this conclusion, we make reference to a decision of the Supreme Court in Ram Prashad vs. CIT 1972 CTR (SC) 97 : (1972) 86 ITR 122 (SC), 127. It would be useful to reproduce the following passage: “Though an agent as such is not a servant, a servant is generally for some purposes his master’s implied agent, the extent of the agency depending upon the duties or position of the servant. It is again true that a director of a company is not a servant but an agent inasmuch as the company cannot act in its own person but has only to act through directors who qua the company have the relationship of an agent to its capacity.”

8. In this case, no material was placed on record to show that the directors-cum-employees attended the meetings not as directors but as employees. To limit the expenditure for such matters, sub-s. (2A) was enacted placing a ceiling on the expenditure to be allowed. Accordingly, we are of the opinion that none of the three statutory authorities considered the facts of the case on the basis of the correct legal position and we answer the referred question in favour of the Revenue in the affirmative, to the effect that the expenses incurred for providing refreshment at the meetings of the directors of the Corporation would be covered by s. 37(2A) of the Act, even if the directors were the employees of the Corporation and the Tribunal was not right in rejecting the Revenue’s contention.

The parties are left to bear their own costs.

[Citation : 180 ITR 18]

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