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Ashok Viniyoga Ltd. v. Cit, (Central) Calcutta .
Factual and Procedural Background
This appeal, brought by the assessee, challenges a decision of the Calcutta High Court in Special Jurisdiction Income-tax Matter No. 9 of 1963. The High Court had been asked to answer two questions referred under Section 66(1) of the Indian Income-tax Act, 1922 (“the Act”) for Assessment Year 1953-54 (previous year ending September/October 1952). It decided both questions in favour of the Income-tax Department. The assessee, obtaining a certificate, appealed to the Supreme Court. At the Supreme Court hearing, the assessee did not pursue the first question, limiting the controversy to the classification of a loss of ₹5,14,295 incurred on the sale of shares.
Legal Issues Presented
- Whether, on the facts and circumstances, the proceedings under Section 34(1)(b) of the Act were validly initiated and the resulting assessment legal. (Issue no longer contested before the Supreme Court.)
- Whether, on the facts and circumstances, the loss of ₹5,14,295 on the sale of shares arose from a share-dealing business (stock-in-trade) or from the realisation of capital investments.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| CIT v. Rajasthan Mines Ltd., (1970) 78 ITR 45 (SC) | Test for reviewing findings of fact by the Tribunal: whether the finding is unsupported by evidence or based on irrelevant considerations. | The Court used this standard to decide that the Tribunal’s finding—that the shares were held as investments—was not vitiated and therefore could not be disturbed. |
Court's Reasoning and Analysis
The Supreme Court framed its task narrowly: to determine whether the Tribunal’s finding that the shares were “investment shares” was vitiated by lack of evidence or reliance on irrelevant material.
- Reliance on Board resolutions: Original resolutions approving purchase of the relevant shares expressly described them as “investments.” Although the word “investment” was later struck out, no explanation was furnished; the Tribunal was therefore entitled to treat the original wording as evidence of investment intent.
- Sale vouchers: Contemporaneous vouchers also described the shares as “investments.” In the absence of contrary proof, the Tribunal could accept these descriptions.
- Timing and subsequent conduct: A later resolution dated 27 August 1952—passed after heavy losses had already been incurred—attempted to label certain shares as stock-in-trade. The Court considered this an attempt to convert a capital loss into a trading loss, undermining the assessee’s case rather than supporting it.
- Historical treatment in accounts: In prior balance-sheets all shares were shown under “investments”; only in the 1952 balance-sheet did the assessee split holdings into “stock-in-trade” and “investments.”
- Scope of appellate review: Re-examining evidence is the Tribunal’s domain. Applying the standard in Rajasthan Mines, the Court found no perversity or legal error warranting interference.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
The Supreme Court upheld the High Court’s answers in favour of the Department. The loss of ₹5,14,295 was affirmed as a capital loss, not deductible as a trading loss. The ruling maintains existing principles governing when findings of fact by the Income-tax Appellate Tribunal may be interfered with; it sets no new precedent beyond reaffirming that standard.
K.S Hegde, J.— This appeal by certificate arises from the decision of the High Court of Calcutta in (Special Jurisdiction Income Tax) Matter No. 9 of 1963 on its file. That was a reference made to the High Court under Section 66(1) of the Indian Income Tax Act, 1922 — to be hereinafter referred to as “the Act”. Two questions were referred to the High Court by the Tribunal. They are—
“(1) Whether on the facts and in the circumstances of the case, the proceedings under Section 34(1)(b) of the Indian Income Tax, Act, 1922, were validly initiated and the assessment made pursuant to the said proceedings was legal and valid.
(2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the loss of Rs 5,14,295 on the sale of shares did not arise to the assessee from a share dealing business but was a loss on realisation of investments.”
2. The High Court answered both these questions in favour of the department and against the assessee. Aggrieved by that decision, the assessee had brought this appeal.
3. The relevant Assessment Year is 1953-54, the previous year ending in September/October, 1952.
4. So far as the first question is concerned Mr M.C Chagla, learned counsel for the assessee has not challenged the correctness of the decision of the High Court. Hence we need not go into that question.
5. Now coming to the second question the facts relating to this question are set out in para 7 of the Order of the Tribunal. The relevant passage of the Tribunal's order reads thus:
“7. We have looked into the resolutions in the minutes book and the vouchers relating to transaction in shares. The relevant portion of the resolution of the Board of Directors, dated May 26, 1952, is in the following terms—
Resolved that the purchase and sales of investments as detailed hereunder, be and are hereby approved and the resolution, dated June 13, 1952, which authorised the purchase and sale of various shares is also in the same terms and speaks of purchases and sales of investments. The words ‘of investments’ in those resolutions have been struck out in the minute book without bearing any body's initial. The learned counsel for the assessee admits that the words should still be considered to be there. We have also examined the vouchers for the sale of shares by the assessee company. In those vouchers, the sales are mentioned as those of investments. In the vouchers, the word ‘Investment’ has neither been scored out nor erased. Further, it appears that in all the past years, the shares held by the assessee have been shown under the head of investment in the balance-sheet and none were shown as stock-in-trade. For example, in the balance-sheet for the year ending September 30, 1951, shares worth Rs 43,97,932 have been shown as investments (at cost). It is only for the first time in the balance-sheet for the year ending September 30, 1952, that the assessee has shown the investments in two parts: (1) investments held as stock-in-trade and (2) investments held as investments. All the shares of Lothian Jute Mills Co. Ltd., Albion Jute Mills Co. Ltd., New Central Jute Mills Co. Ltd., and others which had been shown as investments (at cost) in the balance-sheet of the earlier year have been shown as investments held as stock-in-trade in the balance-sheet as on September 30, 1952. It is only in the resolution of the Board of Directors, dated August 27, 1952, that a distinction was made between the holding of shares as investment and those held as stock-in-trade. It is significant to note that the shares on the sale of which the loss arose which was the subject-matter of claim, were acquired prior to August 27, 1952, and the resolution approving those purchases specifically spoke of purchases on account of investments. The assessee was holding substantial stocks of shares at the end of the year ending September 30, 1951. No profit or loss were considered in the accounts on the revaluation of these shares at the end of that accounting period. It is also significant to note that in the resolution, dated August 27, 1952, it is stated that the acquisition of the shares in Rohtas Industries Ltd. and M/s Shree Krishna Gyanoday Sugar Ltd., should be held as investments ‘as distinguished from the shares which till now had been acquired and held as stock-in-trade’, (the underlining is ours.). The underlined expression in this resolution is not only unnecessary but also contradictory in context to the previous resolutions on the subject. The addition of this expression undoubtedly gives the impression that it was deliberately inserted to prepare a case for the claim that the loss which had by now been sustained on the sale of the other shares should be treated as a loss in share-dealing and perhaps as a corollary, the word “investment”' in the earlier resolutions for acquisition, had been scored out. In any case, this specific mention can only relate to shares which were acquired and held as stock-in-trade, but so far as the shares on the sale of which the loss had been incurred were concerned, they were acquired as a measure of investment. Accordingly, the assessee's contention that all the other previous holdings were as stock-in-trade cannot be accepted. The negotiations for the sale had been finalised on June 12, 1952, and the assessee was fully aware of its position regarding the loss on the sale of these shares. From an examination of the records in the minutes books and the relevant vouchers pertaining to the transactions, we have not the least doubt in our mind that the purchase of the shares on the sale of which the loss occurred, had been originally made as capital investments and we agree with the observation of the Appellate Assistant Commissioner that it was only at the end of August 1952, when the assessee had already incurred huge loss on the sale of the shares that the company seems to have realised the necessity of scoring out the word ‘investments’ from the relevant resolutions and recording a resolution to the effect that the other shares except the shares of Rohtas Industries Ltd. and S.K.G Sugar Ltd had been acquired as stock-in-trade of the company. The resolution, dated August 27, 1952, relating to the sales of shares in Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company.”
6. The High Court has come to the conclusion that the findings of the Tribunal that the shares in question were investment shares are essentially findings of fact and there are no justifiable grounds to interfere with these findings. The High Court's summary of the reasons which pursuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pp. 81 and 82 of the print. They are—
“(1) that the assessee had treated the shares as its investment in earlier years;
(2) that even in the year of account, the resolutions of the assessee's Board of Directors approved the purchases of the shares, on the sale of which the loss arose, as investment;
(3) that the sale vouchers showed the sales as sales of investments; and
(4) that the negotiation for the sale of these shares were completed in June and the assessee was aware of the loss arising from such sales and that the resolution of the August 27, 1952, was an attempt by the assessee to convert a capital loss into a trading loss.”
7. In our opinion the High Court rightly approached the issue before it. The only question the High Court had to consider and that we have to consider in this appeal is whether the finding of the Tribunal that the shares in question were investment shares—a finding which is essentially finding of fact—is vitiated for any reason. In other words, we have to examine whether that finding is unsupported by any evidence on record or whether the Tribunal had relied on any irrelevant circumstance in reaching that finding. The test to be adopted in such cases is set out in the decision of this Court in CIT v. Rajasthan Mines Ltd. (1970) 78 ITR 45
8. It is not disputed that the resolutions approving the purchase of shares with which we are concerned in this case described those shares as investment shares. It is seen that at some later stage, the word “investment” was struck out. No material was placed before the assessing authority to show as to why in the original resolutions it was mentioned that the shares purchased were investment shares, and why the word ‘investment’ was scored out later. Therefore the Tribunal was right in placing reliance on the resolutions as originally recorded in the books of the assessee company.
9. Now coming to the sale vouchers they unequivocally describe those shares as investment shares. The Tribunal was entitled to place reliance on that evidence, as no material was placed by the assessee to show that the description of the shares given therein was a mistake. It is true that the name given to a transaction in a document is not conclusive as to its true character, but in the absence of a satisfactory explanation it was open to the Tribunal to rely on the admission of the assessee in its own record.
10. It may also be noted that the resolution of August 27, 1952, was passed only after several of the shares had been sold at losses and when the assessee had reason to think that the price of the share is going down in the market. That being so, that resolution instead of assisting the contention of the assessee, in our opinion, goes to show that the assessee was only making an attempt to convert its capital loss into a trading loss.
11. It is not this Court's function to re-examine the evidence on record. That was the function of the Tribunal. All that we have to see is whether the Tribunal had departed from the well-established principles in arriving at its finding. We are not satisfied that the Tribunal's finding is open to correction by this Court on the facts and circumstances of this case.
12. In the result this appeal fails and the same is dismissed with costs.
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