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Case Number

ITR Case No. 133 of 1970

Attorney(S)

For the Appellant: P. A. Francis P. K. Ravindranatha Menon

Judges

P. Subramonian Poti
G. Viswanatha Iyer, JJ.

Acts

S. 16(v) of the Income-tax Act, 1961 (hereinafter referred to as the Act).
Rule 7 of the 9th Schedule of Income-tax Act, 1952,
provision R. 9 of Schedule E of the Income-tax Act
Rules in Schedule E of Income-tax Act 1918.
S. 260(1) of the Income-tax Act, 1961.
S. 256(1) of the Income-tax Act, 1961
Income-tax Act 1952

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Smart Summary

Summary of Opinion — Reference under S.256(1) of the Income-tax Act, 1961

Factual and Procedural Background

The Income-tax Appellate Tribunal, Cochin Bench referred the following question to the High Court under S.256(1) of the Income-tax Act, 1961:

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that a sum of Rs. 300/- being the room rent paid at Ernakulam is not an allowable deduction under S. 16(v) of the Income-tax Act, 1961?”

The assessee was an Income-tax Officer posted at Ernakulam. In his income-tax return he claimed Rs. 300 as a deduction under S.16(v) for room rent he paid while staying alone at Ernakulam. The claim was disallowed by the Income-tax Officer and the Appellate Assistant Commissioner; the Appellate Tribunal affirmed that decision. The reference to the High Court relates to the assessment year 1965–1966 (the claim had also been made and disallowed for 1964–1965). The assessee contended that the expenditure was incurred wholly, necessarily and exclusively in the performance of his duties because his service conditions obliged him to reside at Ernakulam and that obligation made the rent expenditure unavoidable.

Legal Issues Presented

Whether the Tribunal was right in law in holding that Rs. 300 paid as room rent at Ernakulam is not an allowable deduction under S.16(v) of the Income-tax Act, 1961.
Whether, for purposes of S.16(v), it is necessary that the conditions of service explicitly specify that the particular expenditure must be borne out of remuneration, or whether it is sufficient that the conditions of service oblige the assessee to incur the expenditure (i.e., the construction question as to whether a specific stipulation is required or an obligation implied by service conditions suffices).

Arguments of the Parties

Assessee's Arguments

The Rs. 300 room rent was actually expended by the assessee and claimed as a deduction under S.16(v).
The expenditure was met wholly, necessarily and exclusively in the performance of his duties because the service rules required him to stay at Ernakulam; that obligation necessitated taking a room on rent.
But for the posting at Ernakulam and the obligation to reside there, the assessee would not have incurred the rent; therefore the rent is directly relatable to the obligation under the service rules.

Revenue's Arguments

The opinion does not contain a detailed account of the Revenue's specific legal arguments beyond the procedural history that the claim was disallowed by the Income-tax Officer and the Appellate Assistant Commissioner and affirmed by the Appellate Tribunal. The court, however, records that the reference is answered in favour of the Revenue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nolder v. Walters (15 T.C. / 15 Tax Cases 380)	Interpreted the phrase “in the performance of the duties” as meaning the acts of doing the work of the office—expenses incurred in getting to the office are incidental but not “in the performance” of duties.	The court relied on Rowlatt J.'s definition to support the narrow reading of “in the performance of the duties” and to distinguish expenses incurred because one holds the office (incidental) from expenses incurred while actually doing the work of the office.
Bolam v. Barlow (31 T.C. 136)	Applied Rule 7 to a worker required to reside within a reasonable distance of his office; emphasised strict interpretation of the rule and rejection of claims not strictly within its terms.	Referred to the decision and Croom-Johnson J.'s observations (including that having to take work home does not satisfy the Rule) to reinforce that mere necessity to reside near work or to take work home does not automatically qualify expenses as “in the performance” of duties.
Ricketts v. Colquhount (10 T.C. 118)	Referred to among authorities construing the corresponding English provision.	Cited as part of the body of English authorities demonstrating the stringent construction of “in the performance of the duties.”
Lomax v. Newton (34 T.C. 558)	Considered similar issues under the corresponding provision (whether expenses were wholly, necessarily and exclusively in the performance of duties); noted Commissioners' factual findings.	Cited to show the scope of the Rule and to demonstrate that some allowances were sustained on findings of fact by tribunals; the High Court noted the limits of appellate interference with such findings.
McKie v. Warner (40 T.C. 65)	Explained the twofold test: (1) expense must be necessitated by the duties (not merely required by employer), and (2) it must be defrayed wholly, exclusively and necessarily in the actual discharge (“in the performance”) of the duties.	Used to illustrate the difficulty of qualifying expenses under the Rule and to state the tests applied by English authorities—supporting the Court's narrow construction of S.16(v).
Brown v. Bullock (Court of Appeal; Donovan L.J. cited)	Donovan L.J.'s enunciation: the test is whether the duties themselves require the expense—i.e., whether, irrespective of employer prescription, the duties cannot be performed without incurring the outlay.	Quoted to stress that the mere fact an employer imposes or prescribes an expense is not sufficient; the necessity must arise from the duties themselves.

Court's Reasoning and Analysis

The court began by setting out the statutory language of S.16(v): a deduction is allowed for amounts “actually expended by the assessee which, by the conditions of his service, he is required to spend out of his remuneration wholly, necessarily and exclusively in the performance of his duties.” The court distilled three cumulative requirements that must be satisfied for a deduction under S.16(v):

That the amount be actually expended by the assessee (undisputed here).
That, by the conditions of service, the assessee is required to expend the sum out of his remuneration (a question in this case).
That the expenditure be wholly, necessarily and exclusively in the performance of his duties.

The court emphasized that the requirements are cumulative and that the words “in the performance of his duties” have a narrower meaning than “for the purpose of the performance of his duties.” The court explained the distinction: “in the performance” requires that the expense be incurred during the actual process of performing the duties (i.e., in doing the work of the office), whereas “for the purpose of” would encompass incidental or enabling expenses that facilitate performance but are not spent while doing the work itself.

To elucidate and support this narrow construction, the court relied on a line of English authorities interpreting analogous provisions (Rule 7 / R.9 of earlier Schedules). Key principles drawn from those decisions were:

Expenses incurred merely because one holds the office (for example, travelling to the place of employment or additional costs of residing nearer the office) are incidental and not “in the performance” of duties (Nolder v. Walters).
Where an office inherently involves travelling or duties carried out away from a fixed office (e.g., travelling salesmen), travel expenses incurred in the actual course of performing duties may be “in the performance” (acknowledged exceptions where duties themselves involve travel).
The test for “necessarily obliged to incur” focuses on the necessities of the office/duties themselves, not on an employer's prescription—i.e., an expense must be necessitated by the duties irrespective of employer direction (Brown v. Bullock; McKie v. Warner).
The courts have consistently construed these provisions strictly; the taxpayer must prove the stringent conditions are met (Bolam v. Barlow; McKie v. Warner).

Applying these principles, the court concluded that rent for the room in which the assessee stayed at Ernakulam cannot be said to be incurred “in the performance of his duties.” The court noted that even if the assessee was required by his conditions of service to stay at Ernakulam, expenses of residence (rent) are not the kind of expenditure that occur during the actual discharge of duties; they are incidental to holding the post. Therefore, such rent does not meet the “in the performance” limb of S.16(v). Because the court resolved the case on this ground, it expressly did not decide the separate question whether the conditions of service required the assessee to spend the amount out of his remuneration.

Holding and Implications

Holding: The court answered the question referred to it in the affirmative — in favour of the Revenue and against the assessee.

Consequences and implications:

Direct effect: The claim of Rs. 300 as a deduction under S.16(v) for room rent at Ernakulam is disallowed. The Tribunal's holding that the sum was not an allowable deduction is upheld by the High Court.
The court directed the parties to bear their own costs in the reference.
The court did not decide whether the assessee was required by his conditions of service to spend the amount out of his remuneration — the decision rests on the narrower ground that the rent was not incurred “in the performance” of duties.
No expansion of the statutory test under S.16(v) was made; the court adhered to the strict, established construction. The opinion emphasizes that if any hardship results from the narrow construction, it is a matter for legislative change rather than judicial extension.
Administrative step: A copy of the judgment under the seal of the High Court will be sent to the Income-tax Appellate Tribunal, Cochin Bench under S.260(1) of the Income-tax Act, 1961 (as recorded in the opinion).

This summary is limited to information expressly contained in the provided opinion. No facts, arguments, or conclusions have been added beyond the text of the judgment.

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A.K Venkiteswaran v. The Commissioner Of Income-Tax

Subramonian Poti, J.:— The question referred to us for decision under S. 256(1) of the Income-tax Act, 1961 by the Income-tax Appellate Tribunal, Cochin Bench is—

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that a sum of Rs. 300/- being the room rent paid at Ernakulam is not an allowable deduction under S. 16(v) of the Income-tax Act, 1961?”

2. Now the relevant facts of the case. The assesses who is an Income-tax Officer was posted at Ernakulam. In the return of income filed by him he claimed a deduction of Rs. 300/- by way of expenses under S. 16(v) of the Income-tax Act, 1961 (hereinafter referred to as the Act). This was the amount of room rent paid by him in Ernakulam for his stay. According to him this expenditure was met wholly and exclusively in the performance of his duties and since by the conditions of his service he was forced to stay at Ernakulam the rent payable was wholly, necessarily and exclusively for such performance. This claim was disallowed by the Income-tax Officer and this was confirmed by the Appellate Assistant Commissioner. In the further appeal to the Appellate Tribunal the same decision was reached. The matter has been taken by way of reference to this court at the instance of the assessee. According to the assessee he was staying alone at Ernakulam and this stay being necessitated solely by the conditions of his service he was entitled to the deduction claimed. The claim was made in regard to the assessment year 1964-1965 and that was disallowed. That was again made in regard to the assessment year 1965-1966. That too was similarly disallowed. The reference relates to the assessment year 1965-1966.

3. The deduction is claimed by the assessee as admissible under S. 16(v) of the Act, That sub-section allows a deduction from the salary of any amount actually expended by the assessee which, “by the conditions of his service, he is required to spend out of his remuneration wholly, necessarily and exclusively in the performance of his duties.” Of course, the sub-section refers to certain exceptions with which we are not concerned here. That the room rent is an expenditure actually met by the assessee is not a matter in dispute. That by itself is not sufficient. Two more conditions are to be satisfied to entitle the assessee to claim deduction under S. 16(v) of the Act. These are: (1) he must be required to expend this sum out of his remuneration by the conditions of his service and (2) be must be so required to spend it wholly, necessarily and exclusively in the performance of his duties.

4. It is the plea of the assessee's counsel that though the service rules applicable to the assesssee do not, in terms, lay down the rule that he should expend the room rent out of his remuneration, still this necessarily follows from the situation that he is obliged by the rules governing him to stay at Ernakulam and such stay necessitates taking a room on rent. In other words, his case is that if there was no such obligation, be would have been free to stay out of Ernakulam. That would necessarily mean that he need not take a room in the city and pay rent for it. Therefore the case is that the expenditure on account of the rent was directly relatable to the obligation under the rule requiring his residence in Ernakulam and but for the performance of his duties as the income-tax Officer posted at Ernakulam, he would not have incurred this expenditure. It may be a matter of construction as to whether the requirement of the section is that there should be a specification in the conditions of service as to the necessity of incurring a particular expenditure or it is sufficient if, by the conditions of service, he is obliged to incur such expenditure. That too is one of the questions that arises here.

5. It is not sufficient if the expenditure claimed is wholly met in the performance of the assessee's duties or has necessarily to be so met nor is it sufficient if it is shown that it was met exclusively in the performance of the duties of the assessee. The requirement is cumulative and therefore it must be shown that the assessee was required to spend out of his remuneration not only wholly but also necessarily and exclusively in the performance of his duties. More important is the requirement that it is not for the performance of his duties that he had to ??? spend but in the performance of his duties. According to us the term “in the performance” is much narrower in its scope than the term “for the purpose of the performance”. Many items of expenditure may be incurred by an assessee to enable him to perform his duties properly. These are not expenses incurred in the performance of the duties as the latter class is limited to those expenses incurred during the process of performance of the duties. The duties may vary depending on the office one holds. The duty, say, in regard to some officers involve attendance at meetings and conferences and if in regard to such persons expenses are met while attending the meeting or conference and it is wholly, necessarily and exclusively in the performance of their duties, they may be entitled to claim deduction. Similarly the duties may be one involving travel such as that of travelling salesmen and in such cases expenses incurred in travelling in the course of business is incurred in the performance of duties. This will not be true in the case of a person who incurs expenses for travelling for the purpose of performing his duties, but whose duties do not by themselves involve travelling. This distinction has necessarily to be borne in mind in construing the applicability of S. 16(v) of the Act.

6. Many salaried employees work at home. Some are obliged to do so by reason of the nature of their office; others either because of pleasure they take in their work or because they want to impress those above them by their industry. Perhaps, there is yet another class who are constrained to take their files home since they do little work in office, which they may choose to attend only at times. Let me refer here only to those whose duties require attention to work equally at borne. Truly could they claim that a part of their residence is set apart for attending to official work, that they burn the midnight oil, as the saying goes, to perform their official duties and further that they incur other expenses which an officer who can forget the worries of his office once he leaves for home need not meet. But could it be said for these reasons that they should be allowed to deduct expenses so incurred in determining their taxable income. We think not. These are expenses incurred, perhaps, for the purpose of carrying on their avocation, but not in the performance of their duties. Had it been otherwise, the Judges, for instance, could make a claim for deduction of similar expenses incurred by them. Theirs is the best case to illustrate our point as their period of work is certainly not limited to those hours they sit in Courts.

7. It is easy to conceive of other cases to illustrate what we have said here. But we feel we will do best by referring to certain decided cases under the corresponding provision in English law to illustrate our point, since, relevant situations had arisen before the English Courts calling for examination of the application of such provision.

8. Under Rule 7 of the 9th Schedule of Income-tax Act, 1952, deduction of expenses is permitted. That rule runs as follows:

“If the bolder of an office or employment of profit is necessarily obliged to incur and defray out of the emoluments thereof the expenses of travelling in the performance of the duties of the office or employment, or keeping and maintaining a horse to enable him to perform the same, or otherwise to expend money wholly, exclusively and necessarily in the performance of the said duties, these may be deducted from the emoluments to be assessed the expenses so necessarily incurred and defrayed.”

9. Prior to the enactment of this provision R. 9 of Schedule E of the Income-tax Act 1918 allowed a similar deduction and it was the application of that provision that the High Court was concerned with in the Case of Nolder v. Walters (15 Tax Cases 380). The question for determination in that case was whether a sum of £200 claimed by the respondent was an allowable deduction under R. 9 of the Rules in Schedule E of Income-tax Act 1918. The said sum of £200 included several claims and the claims were allowed by the Commissioners for General Purposes. The matter was taken to the court at the instance of the Revenue. In construing the section, Rowlatt, J. said thus;

“In the performance of the duties” means in doing the work of the office, in doing the things which it is his duty to do while doing the work of the office. A man who holds an office or employment has, equally necessarily, to do other things incidentally, and spend money incidentally, because he has the office. He has to get to the place of employment, for one thing. If he had not got the employment he could stay at borne. As he has got the employment he has necessarily got to get there, and it costs him something, if it is only shoe leather, to get there; but that is not in the performance of the office, because in getting there be is not doing the duties, or doing the work of the office. Incidentally, he is obliged to do that, but it is not in doing the work of the office, which begins when he arrives, and sets to work to perform his duties. That seems to me to be quite a clear rule.”

10. Dealing with types of cases where even travelling may involve the performance of the duties, the learned Judge observed thus:

“Some offices and employments do involve the duty of travelling. It is not a question of getting to the place of employment, but the employment may be actually to travel, as in the common case of the commercial traveller, and, as soma people say, in the case of the Member of Parliament.”

11. The applicability of the same provision arose for consideration in a later case in Bolam v. Barlow (31 T.C 136). The facts of that case may be stated here in brief because the plea there had very much in common with the plea before us. The respondent in that case was an Engineering Assistant employed by the Metropolitan Water Board. He acted as a Deputy to the District Engineer. In order to perform his duties be was required by the Board to reside within a reasonable distance of the office of the District Engineer. He was not paid any ‘housing allowance’ since he was not a permanent official. Though be was working in the District Engineer's office between 9 a.m and 5 p.m he was also on duty outside those hours when he performed his duties from his rooms. A telephone was installed in his rooms and the Board paid for the installation of the telephone and the periodical charges therefor he was a bachelor add he lived in a room near his work-spot. He estimated that if he were free to choose his place of residence in a cheaper District he could have obtained accommodation on payment of a much lesser rent and the food and accommodation which he in fact obtained, as a result of the Board's requirements, cost him during the year in question a total sum of £55. This was sought to be deducted from his remuneration for the purpose of taxation. Croom-Johnson J., dealing with the plea that the respondent had to work at his room and therefore it was in the performance of his duties that he incurred the expenses, observed thus:

“Many of us have to take work home, especially those of us who are young enough to want to get on the world. But that is not what the Rule says. I have been referred by the respondent to one or two cases which I have examined, but they only show this as it seems to me that when a taxpayer asks for a deduction within the terms of Rule 9 be has to prove what Rule 9 says be has to prove and that proof short of that will not do. But I do not want to leave the case quite there on this. I think that the respondent would probably wish that the real point which he made should have something said about it, and his real point was that as he was not free to choose his place of residence in a cheaper district than the one that be was in, he found that he had to obtain accommodation on payment of a sum over and above what he would have had to pay if he had been free to choose his place of residence.”

12. Referring to the cases of Nolder v. Walters (15 T.C 380) and Ricketts v. Colquhount (10 T.C 118), the learned Judge held that the Rule had to be interpreted according to its strict meaning and in so interpreting, the appeal by the revenue had to be allowed. In Lomax v. Newton (34 T.C 558), also a case dealing with the same provision as in the cases already adverted to, the question was whether the claim by the respondent for deduction of certain items of expenses should have been allowed. There was a dispute as to whether those items of expenditure had been incurred wholly, necessarily and exclusively in the performance of the duties of the assessee as a Territorial Army Officer, second-in-command of the Territorial Battalion of The York and Lancaster Regiment. The dispute in regard to the deduction claimed concerned those items including such as annual mess subscription, share of battalion mess guests expenditure, payments to batman at weekend and annual camps, hire of camp furniture and amounts paid for hotel accommodation at conference etc. For the purpose of this case, it is sufficient to refer to one of such items with which the High Court was concerned in that case and that was the amount paid for hotel accommodation at conferences and exercises in excess of detention and ration allowances. Attendance at these conferences and exercises was compulsory and the respondent had no choice of the hotels at which he had to put up. It was found that supplementing of the prescribed allowances was a serious burden on a Territorial Officer. Of course, though the court did not interfere with the decision of the Commissioners on this point, it was not because the court felt that it was an item of expenditure which was permissible, but because it was of the view that the finding on this point by the Commissioners was finding of fact and it was not necessary to disturb it in appeal. At the same time, the learned Judge felt that by no means he was sure that he should himself have decided that point as the Commissioners did. In the case in Mckie v. Warner (40 T.C 65) the question of applicability of paragraph 7 of the 9th Schedule of the Income-tax Act 1952 arose for consideration. The court was concerned in that case with a claim for an allowance of £350, the rent the respondent had to pay in excess of the allowance given to him by his employer. That was claimed by way of deduction as the Company required him to reside in London to carry on his duties satisfactorily and further the respondent bad a duty to entertain at his residence customers of his employer who were on a visit to this country. A bedroom was available for customers who wished to sleep at the flat overnight, as it sometimes happened. For these reason it was contended by the respondent that he was entitled to claim the difference between the allowance that he obtained and the rent that be had to expend as a permissible deduction. Dealing with this, the court said thus:

“It has been pointed out many times, and it is unnecessary for me to refer to any of the occasions because it is notorious, that it is very difficult for a taxpayer under Schedule E to bring his expenses within the Paragraph that I have just read. In order to succeed in a claim under the Rule the taxpayer has to prove, first of all that the expense is one which he was necessarily obliged to incur and, secondly, that it was incurred wholly, exclusively and necessarily in the performance of his duties. As regards the first of those two requirements, the authorities show that the word “necessarily” in the expression “necessarily obliged to incur” refers to the necessities of the office or the employment. In order to qualify, the expense must have been necessitated by the duties of the employment. The fact that it was required by the employer is not sufficient, nor is the fact that it was thought to be necessary by the employee. In this connection, I need only refer to a sentence taken from the judgment of Donovan L.J, in the recent Case of Brown v. Bullock which was in the Court of Appeal for judgment on 26th June of this year, where Donovan, L.J, said, in connection with Rule 7, that the General Commissioners accepted a contention which in his view was not correct; and then he proceeded to enunciate the test:

“The test is not whether the employer imposes the expense but whether the duties do in the sense that, irrespective of what the employer may prescribe, the duties cannot be performed without incurring the particular outlay.”

Then, as regards the second requirement, the authorities show that the expression “in the performance of the said duties” is a very stringent one; it has quite a different connotation from what I might call the corresponding provision in S. 137 of the Act relating to expenses for purposes of Schedule D, where the relevant words are “for the purpose of”; and, in Rule 7, the necessity for expenditure “in the performance of the duties” means that the sum in question must be defrayed in the actual discharge of the duties—“in doing the work of the office” is the expression which Rowlatt J., used in Nolder v. Walters 15 TC. 380, at page 387. But, even if the expenditure was necessarily incurred in doing the work of the office, it must also bays been defrayed wholly in discharge of the duties and exclusively in discharge of the duties.”

13. We do not think that it is necessary to deal with other cases cited before us by counsel on both sides. The decisions which we have adverted to indicate the scope of the term “in the performance of the duties.” We are in entire agreement with the views so expressed in those decisions. “In the performance of the duties” of an assesses cannot be equated with “for the performance of his duties.” In the one, only such expenditure as is incurred after the process of performance has commenced is permissible as deduction while in the other, all expenses incidental thereto may also be permitted. True, this may sometimes entail hardship. But, for that reason, it is not for us to enlarge the scope of the provision for deduction so long as the provision is specific enough. If hardship there be any, it is for the legislature to take note of and not for us to remedy.

14. We do not think that even if the assessee was required by his conditions of service to stay at Ernakulam, any expenses incurred by way of payment of rent for the room in which he was staying could be said to be incurred “in the performance of his duties.” In this view, we do not go into the other question, whether, in the case before us, the assessee was required by the conditions of his service, to spend such amount. In the result, we answer the question referred to us in the affirmative, that is, in favour of the Revenue and against the assessee. In the circumstances of the case, we direct the parties to bear their costs.

15. A copy of this judgment under the seal of the High Court and signature of the Registrar will be sent to the Income-tax Appellate Tribunal, Cochin Bench under S. 260(1) of the Income-tax Act, 1961.

A.K Venkiteswaran v. The Commissioner Of Income-Tax

Summary of Opinion — Reference under S.256(1) of the Income-tax Act, 1961

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Assessee's Arguments

Revenue's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

A.K Venkiteswaran v. The Commissioner Of Income-Tax

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