Held, there are three conditions/tests to prove the existence of mutuality:
- Identity of the contributors to the fund and the recipients from the fund;
- Treatment of the company, though incorporated as a mere entity for the convenience of the members and policy holders, in other words, as an instrument obedient to their mandate, and;
- Impossibility that contributors should derive profits from contributions made by themselves to a fund which could only be expended or returned to themselves.
Whereas the legal position on what amounts to a mutual concern stands fairly settled, the factual determination of the same on a case to case basis poses a complex issue that requires deeper examination in the light of the tests enunciated above. Para 17.
[Yum! Restaurants (Mktg.) (P) Ltd. v. CIT, (2021) 7 SCC 678]