T.D. Sugla, J.
1. Five questions of laws are referred to this court by the Tribunal in this case. They read thus :
'(1) Whether, on the facts and in the circumstances of the case, the sums of Rs. 6,99,710 (assessment year 1967-68), Rs. 9,45,000 (assessment year 1970-71) and Rs. 10,50,000 (assessment year 1971-72) being the dividend recommended by the directors were to be included for the purposes of computation of capital for ascertaining the standard deduction for the respective assessment years 1967-68, 1970-71 and 1971-72 ?
(2) Whether, on the facts and in the circumstances of the case, the sums of Rs. 11,00,000 (assessment year 1967-68), Rs. 30,00,000 (assessment year 1970-71) and Rs. 15,50,000 (assessment year 1971-72) being the amounts borrowed by the assessee from the ICICI in an agreement to repay the same within a period of not less than seven years were to be included in the capital computation base for the respective assessment years 1967-68, 1970-71 and 1971-72, even though the said amount was repaid by then assessee within a period of seven years ?
(3) Whether, on the facts and in the circumstances of the case, the entire difference between the depreciation actually allowed to the assessee for the assessment years 1964-65 to 1966-67 and actually provided in the accounts for the years concerned should be deducted from the respective capital competition base for the assessment years 1967-68, 1970-71 and 1971-72 ?
(4) Whether, on the facts and in the circumstances of the case, the proportionate increase of Rs. 3,26,027 in the paid-up capital for the assessee in respect of the amount capitalised for issuing bonus shares was includible in the capital computation base for the accounting period relevant to the assessment year 1971-72 without effecting any corresponding decrease in the general reserve ?
At the instance of the assessee :
(5) Whether, on the facts and in the circumstances of the case, for the purposes of computation of 'other reserves/paid-up capital' under rule 1(iii) of the Second Schedule to the Companies (Profits) Surtax Act, 1964, deduction for depreciation under the Income-tax Act, 1961, for the assessment years 1964-65 to 1966-67 could be said to have been allowed to the assessee-company as on the respective first day of the previous years for the assessment year 1967-68, 1970-71 and 1971-72 even though, factually, its income-tax assessments for the said assessment years were completed after the first day of the said previous years ?'
2. Question No. 5 is at the instance of the assessee. The question is, in fact, an argument in support of the Tribunal's decision in regard to question No. 3. Therefore, questions Nos. 3 and 5 will be considered together.
3. Dr. Balasubramanian, learned counsel for the Department, submitted that the first question of law is covered by the Supreme Court decision in the case of Vazir Sultan Tobacco Co. Ltd. v. CIT : [1981]132ITR559(SC) , in favour of the Revenue. Shri Dastur, learned counsel for the assessee, on the other hand, did not admit that it was so. He stated that as regards distribution of dividend in the case of a company, there could possibly be three situations which would be relevant for the purpose of capital computation in regard to surtax assessments, namely, -
(i) at the time of finalising and approving the accounts, the directors recommended distribution of dividend and necessary provision therefore is made in the books of account;
(ii) at the time of finalising and approving the accounts, the directors recommended distribution of dividend, but no provision is made therefore in the books of account and the recommendation is that the dividend should be paid out of the general reserve though a portion of profits of the year is transferred to the general reserve; and
(iii) the directors do not recommend distribution of dividend at the time of finalising and approving the accounts and the recommendation for distribution of dividend out of the general reserve is made subsequently.
4. According to Shri Dastur, the first two situations are covered by decisions of the Supreme Court and High Courts against the assessee and the general reserve would require to be reduced by the amount of proposed dividend. The assessee's case, however, falls in the third category. While the accounts were finalised and approved by the directors on July 6, 1965, July 5, 1968, and July 3, 1969, for the respective years, the dividend was recommended by the directors on subsequent dates, i.e., on July 7, 1965, July 8, 1968, and July 5, 1969. Dividend was to be paid and was actually paid out of the general reserve in all the three years and the accounts as well as the recommendation of the directors regarding distribution of dividend were approved in one and the same general meeting held on August 20, 1965, August 22, 1968, and August 22, 1969, for the respective years. Shri Dastur stated that, for computing capital for the purpose of surtax assessment, the balance-sheet was the relevant document and if there was no note or proposal in the balance-sheet for the distribution of dividend, there would be no justification whatsoever for reducing the general reserve by the amount of the proposed dividend.
5. To our mind, the distinction drawn by Shri Dastur between this case and the cases covered by the Supreme Court decision is without any merit. It is common knowledge that the accounts are always of necessity finalised and approved by the directors after the end of the previous year and the annual general meeting is held some time thereafter. It is the general meeting that finally approves the accounts including the recommendation for distribution of dividend, if any. Therefore, whether the recommendation for distribution of dividend is made by the directors on the day the accounts were finalised and approved by them so that it finds place in the balance-sheet or whether it is done some time thereafter is not of mush consequence. What is pertinent is whether the recommendation for distribution of dividend is for the same year and whether the accounts as well as recommendation for distribution of dividend for that year are passed in the same annual general meeting. There is no dispute that it was so in this case. Accordingly, we agree with Dr. Balasubramanian that the first question is to be answered in the negative and in favour of the Revenue. The question is so answered.
6. As regards the second question, the submission of Dr. Balasubramanian is that a mere provision in the agreement under which moneys were borrowed for repayment thereof during a period of not less than seven years was not enough. Repayment of the loan must also have been made not a day earlier than the stipulated period of seven years. If the assessee's case was accepted, he stated, it would be open to an assessee to flout the provision by entering into an agreement for repayment of loan in more than seven years, but repay the same after one day, one year or at any time within a period of seven years and yet avail of the concession. This could not be the intention of the Legislature.
7. Rule 1(v) of the Second Schedule reads as under :
'1. Subject to the other provisions contained in this Schedule, the capital of a company shall be the aggregate of the amounts, as on the first day of the previous year relevant to the assessment year, of - ...
(v) any moneys borrowed by it from Government or the Industrial Finance Corporation of India or the Industrial Credit and Investment Corporation of India or any other financial institution which the Central Government may notify in this behalf in the Official Gazette or any banking institution (not being a financial institution notified as aforesaid) or any person in a country outside India :
Provided that such moneys are borrowed for the creation of a capital asset in India and the agreement under which such moneys are borrowed provides for the repayment thereof during a period of not less than seven years.
Explanation. - ...'
8. Evidently, a case will fall under the above sub-rule provided the following two conditions are satisfied :
(i) the moneys are borrowed from the financial institutions mentioned in the sub-rule; and
(ii) the agreement under which the moneys are borrowed provides for the repayment thereof during a period of not less than seven years.
9. It is not in dispute that the assessee had borrowed moneys from the financial institutions specified in the sub-rule and that the moneys were borrowed under an agreement under which the moneys were to be repaid during a period of not less than seven years. Both the conditions are, thus, satisfied. To our mind, the fact that the assessee was able to pay back the moneys borrowed under the agreement during the period of seven years is not relevant for the purpose of rule 1(v). Accordingly, the second question is answered in the affirmative and in favour of the assessee.
10. The third question also pertains to the assessment years 1967-68, 1970-71 and 1971-72. But there is a material difference between the facts pertaining to the assessment year 1967-68 and the assessment years 1970-71 and 1971-72. Therefore, we propose to deal first with the question relating to the assessment year 1967-68. The question in so far as it partisans to the assessment year 1967-68 is squarely covered by this court's decision in the assessee's own case in : [1978]112ITR215(Bom) . No doubt, Shri Dastur made an attempt to persuade us to take a different view, but we see no good reason to reconsider the question. Accordingly, the question in so far as it relates to the assessment year 1967-68 is answered in the negative and against the assessee. It is, however, pertinent to mention that when the assessments were made, the figure of difference between the depreciation claimed in the books and actually allowed was not available. That is why it was taken as the difference between the depreciation claimed in the return and the depreciation debited in the books, i.e., Rs. 28,18,677. The fact found by the Tribunal in this regard is that the amount of difference between the depreciation actually allowed and the depreciation debited in the books is not Rs. 28,18,677 but Rs. 22,98,100. Naturally, therefore, it is this amount by which the general reserve would require to be reduced for the assessment year 1967-68.
11. As regards assessment years 1970-71 and 1971-72, Shri Dastur pointed out that, during the previous year covering the period from May 1, 1965 to April 30, 1966, which is relevant for the income-tax assessment year 1967-68 and for the surtax assessment year 1968-69, the assessee transferred the sum of Rs. 28,18,677, representing the amount of difference between the depreciation claimed in the returns and the depreciation debited in the books, from its general reserve to general reserve account No. 1. In the following previous year, the assessee capitalised a sum of Rs. 35,00,000 and issued bonus shares by utilising the aforesaid sum of Rs. 28,18,677 standing to the credit of general reserve account No. 1 and a sum of Rs. 6,81,323 out of the general reserve. For surtax assessment years 1970-71 and 1971-72, there is no reserve as such in the books which represents or which can be said to represent any amount allowed as deduction. As a result of capitalisation and issue of bonus shares, it had become part of the paid-up capital. For paid-up capital, the relevant provision is rule 1(i) of the Second Schedule and not rule 1(ii). In other words, Shri Dastur's submission is that whatever may be the position for the assessment year 1967-68, the position will not obtain for these two years. Dr. Balasubramanian, on the other hand, made a reference to Explanation 1 to rule 2 of the Second Schedule and stated that the capital in this case was increased by taking the increased value of the book assets and, therefore, to the extent the paid-up share capital represented the increased value of book assets, it was not to be treated as capital for the purpose of computation of the capital of the company. The Explanation, further stated Dr. Balasubramanian, provided that the paid-up share capital brought into existence by increasing (by revaluation or otherwise) any book asset is not capital. The assessee in this case resorted to increasing the capital indirectly by first transferring the difference between the depreciation debited in the books to the general reserve. Thereafter, it created general reserve account No. 1 out of the general reserve which was subsequently capitalised and used for the purpose of issuing bonus shares. The argument, thus, was that the increase in the capital was the result of the assessee's taking the increased value for the depreciable assets in the books. If the value in the books was also taken at the written down value as understood under the Income-tax Act, there would have been no difference between the depreciation debited in the books and the depreciation actually allowed under the Income-tax Act and consequently no scope for capitalisation. Shri Dastur stated that the paid-up share capital is to be taken as the capital of the company for surtax purposes as provided in rule 1(i) of the Second Schedule. He conceded that Explanation 1 to rule 2 is relevant for this purpose. But Explanation 1, according to him, is not applicable in this case. His first submission is that the Explanation is to be construed strictly.
12. What needs to be seen in a case like the one before us is whether there is any direct nexus between the paid-up share capital and the increase in the value of the book assets. Assuming, for the purpose of this reference, that book assets would mean and include all assets reflected in the books, as we read the Explanation, there has to be some overt act on the part of the assessee so that it can be said that the valuation of the book assets has been increased whereby paid-up share capital is brought into existence. What has happened here is that the assessee has been debiting depreciation in its books on a particular method. The amount of depreciation debited in the books is less than what is allowable or actually allowed under the Income-tax Act. But, so far as the assessee is concerned, the value of the assets in its books has all along been the same. The assessee has admittedly not increased the value of the book assets by revaluation or otherwise. In the absence of such a finding, it is not possible to accept Dr. Balasubramanian's submission that the assessee increased its capital by increasing the value of its book assets even though it is a fact that, had the assessee debited the same amount of depreciation in its books as was to be allowed under the Income-tax Act, it would not have been possible for it to capitalise Rs. 28,18,677 and issue bonus shares out of it. The Explanation, thus, does not apply. Accordingly, the third question, in so far as the assessment years 1970-71 and 1971-72 are concerned, is answered in the negative and in favour of the assessee.
13. It is common ground that, in view of the discussion above, question No. 5 raised at the instance of the assessee need not be answered.
14. As regards question No. 4, counsel are agreed that the issue is covered by this court's decision in the case of CIT v. Century Spg. and Mfg. Co. Ltd. : [1978]111ITR6(Bom) , in favour of the Revenue and against the assessee. The question is, accordingly, answered in the negative and in favour of the Revenue. No order as to costs.