1. This is a case stated under section 66(1) of the Income-tax Act, 1922, by the Income-tax Appellate Tribunal, Allahabad Bench. The material facts of the case are these. The relevant year of assessment is 1957-58, the previous year being the year ending on Diwali in 2013 (October, 1956). The assessee is a registered partnership firm consisting of two persons, Sri Shiv Prasad and Sri Ram Sahai, having equal shares in the profits and losses. The assessee-firm carried on, inter alia, money-lending business and in the course of its money-lending business it had advanced a sum of Rs. 71,010, some time in 1948-49, to another registered firm of M/s. Gwalior Glass Industries (hereinafter called the debtor firm). There were four partners of the debtor firm, two of whom were also partners of the assessee-firm. The two other partners were Sri Ram Prasad and Sri Jagdish Prasad. The assessee admittedly adopted the mercantile system of accounting. For the assessment years 1948-49 to 1956-57, the assessee had returned the interest income from the aforesaid loan to the debtor firm on the mercantile system of accounting, i.e, on the accrual basis. In the relevant year of accounting, however, the sum of Rs. 20,400, which had accrued on the said loan was not debited in their accounts. The Income-tax Officer asked the assessee to show cause why the accrued income of Rs. 20,400 should not be included in the assessment. The explanation given was that the debtor firm was in an embarrassed financial condition and, therefore, the interest had not been debited to this account. The Income-tax Officer, on a scrutiny of the details of the account of this debtor in the books of the assessee-firm, found that the assessee had advanced a further sum of Rs. 1,000 on January 6, 1956, and Rs. 18,00 on November 1, 1956, which it would not have done if the debtor firm was in financial straits, and accordingly added a sum of Rs. 30,100 to the income of the assessee as interest accrued at the rate of 12 per cent, on Rs. 1,70,000.

2. On appeal, the Appellate Assistant Commissioner held in favour of the assessee observing:

“No doubt in the immediately preceding two years, the assessee had debited their account with the interest fallen due from them; but as mentioned above, the assessee did not consider it appropriate to load this particular debtor with an additional amount of interest when there was little hope of even the recovery of the capital…….”

3. The Appellate Assistant Commissioner accordingly deleted the interest of Rs. 20,400 from the total income of the assessee. The department carried the matter in appeal to the Tribunal which reversed the decision of the Appellate Assistant Commissioner and restored that of the Income-tax Officer. In doing so, the following findings of facts were given:

1. That the assessee had been following the mercantile system of accounting and interest from the debtor firm was being assessed in the past on the accrual basis.

2. There was no variation, change or innovation of the contract in respect of the income for the relevant year of account.

3. That the material placed on record was insufficient to establish that the debtor firm was not able to pay the interest for the relevant year of account, and

4. That both the partners of the assessee-firm, who were also partners of the debtor firm, had not been shown to be financially embarrassed in any manner.

4. On these findings the Tribunal came to the conclusion that the interest had accrued to the assessee and accordingly held that the interest of Rs. 20,400 should have been taxed in the hands of the assessee. On the above facts the question of law which has been referred is whether, on the facts and in the circumstances of the case, the Tribunal had rightly held that the interest of Rs. 20,400 had accrued to the assessee during the previous year and was liable to be included in the assessee's total income?

5. Prior to the Act of 1922, it was pointed out by the the Calcutta High Court, when dealing with a reference under the Income-tax Act (Act No. VII of 1918), that, unless the interest was actually received, it could not be brought to tax. Wallis C.J, in Secretary to the Board of Revenue v. Arunachalam Chetliar 1920 1 I.T.C 75., observed at page 79:

“Having regard to the uniform interpretation placed by the courts on the corresponding language of Schedule D (of the English Act) and accepted by the legislature, it is not, in my opinion, open to this court to place a different interpretation on the word ‘profits’ occurring in section 9 of the present Act and to hold, as contended, that they include not only receipts but claims for interest which have fallen due but have not been paid within the year of account and, therefore, form no part of the income of the year in its natural and legal sense. Such interest, when it is paid, will necessarily form part of the profits or receipts of the year in which it is paid and I can see no reason for including it in the profits or receipts of an earlier year. If the present Act is found to admit of extensive evasion in India, the remedy, in my opinion, is to be found in an alteration of the law.”

6. It was as a result of these observations and to prevent the excessive evasion of tax, which was resulting from the absence of a provision as to the system of accounting, that section 13 of the Income-tax Act was inserted in the Income-tax Act (Act No. XI of 1922). Section 13 provides:

“Income, profits and gains shall be computed for the purposes of sections 10 and 12 in accordance with the method of accounting regularly employed by the assessee.”

7. There was thus, under the Act of 1922, an obligation placed upon the Income-tax Officer to compute the profits according to the system of accounting regularly employed by the assessee.

8. A Full Bench of this court, in Commissioner of Income-tax v. Smt. Singari Bai, had to consider whether the assessee who was carrying on money-lending business and had regularly kept her accounts according to the mercantile system of accounting could, for a particular year, say that she would return her income on the cash basis and whether it was obligatory on the Income-tax Officer to compute the profits under section 13 in accordance with the method of accounting regularly employed by her? It was, after tracing the history of section 13, held that:

“Where the assessee has himself chosen a mercantile basis, then the Income-tax Officer is bound to concede that basis to the assessee, provided the assessee's accounts regularly kept on that basis afford a proper and sufficient means of deducing what the profits or gains on that basis have been.”

9. It was further held that it was open to the assessee in certain circumstances to claim that the system should be changed from the mercantile system to that of the cash basis.

10. The Supreme Court in Commissioner of Income-tax v. K.R.M.T.T Thiagaraja Chetty & Co. [1953] 24 I.T.R 525 S.C., which was a case of a remission of commission, where the method of accounting was on the mercantile basis, held that merely because the agent of a limited company was entitled to a commission and it had accrued and at its request the company had not credited such commission to the account of the assessee but had carried it to the suspense account by a resolution of the directors, would not make the commission which had accrued any the less the income of the assessee, as the system of accounting followed was mercantile system and the commission had accrued. In Commissioner of Income-tax v. Shoorji Vallabhdas & Co. [1962] 46 I.T.R 144 S.C. the Supreme Court was again called upon to consider whether the rate of commission which had been agreed upon could be given up by the managing agent and as such what would be the income which could be said to have accrued to the managing agents? Affirming the decision of the Bombay High Court, it was held that, as the agreement between the managing agents and the managed company within the previous year were replaced and whereby the rate of commission was altered, “in such a way as to make the income different from what had been entered in the books of account, a mere book entry cannot be income, unless the income has actually resulted and, in the present case, by the change of the terms the income which accrued and which was received consisted of the lessor amounts and not the larger…………………. The reduction was a part of the agreement entered into by the assessee-firm…”

11. In the absence of any direct authority, but on the first principles it is clear that, once the assessee has adopted the mercantile system of accounting, there is no alternative for the Income-tax Officer but to compute the assessee's income on that system, i.e, on the accrual and not the receipt basis. The choice is entirely that of the assessee. He may even choose to adopt the mercantile system for certain transactions and the cash basis for other transactions, but once having chosen and regularly employed that system, it is not open to him unilaterally at any time during an accounting year to say that he will not now follow that system in respect of a particular transaction. It would be open to the assessee to vary the terms of a particular contract but the variation must be by mutual agreement. It is not open to him to keep alive the contract and his rights thereunder, but, for the purposes of income-tax, to say that he will not debit the interest which may have accrued as a debt in its accounts for any reason whatsoever. This is the very evil on account of which section 13 in the Act of 1922 was brought on the statute book. If the assessee could at any moment of time say that he will not debit the interest because of some reason or the other, then it would open the floodgates of evasion. There is also no hardship as the legislature has expressly provided that, if the income on the accrual basis has been included in the assessee's total income and tax paid thereon but subsequently it is found that that income was not received or could not be received, then in the year when such debt was found to have become irrecoverable or bad, it could be claimed as a bad debt. This provision is to be found in section 10(2)(xi) of the Act. This provision also indicates that the legislature never intended an assessee to be able to resile from the mercantile system of accounting and the accrual basis at his sweet Will and pleasure. In this view of the matter, it is wholly unnecessary to consider whether the financial position of the debtor was good or not, and whether there was any justification for the assessee not to have made the debit of Rs. 20,400 in the account of this particular debtor. That will be a matter which falls to be considered if and when the assessee claims the amount as a bad debt. It will not be right or proper to make any observations on that aspect of the case in these proceedings, as it may embarrass the assessee. For the reasons given above, the answer to the question will be in the affirmative and against the assessee. The assessee will pay the costs of this reference to the department, which we assess at Rs. 200. Counsel's fee is also assessed at Rs. 200.