Case: Ashoka Viniyoga Limited Vs. Commissioner of Income Tax (Central), Calcutta

HEGDE J. 1. 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 investment ?"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. The relevant assessment year is 1953-54, the previous year ending in September/October, 1952. 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. 3. Now, coming to the second question the facts relating to this question are set out in paragraph 7 of the order of the Tribunal. The relevant passage of the Tribunals 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 26th May, 1952, is in the following terms : Resolved that the purchase and sale of investments as detailed hereunder, be and are hereby approved, and the resolution dated 13th June, 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 minutes book without bearing anybodys 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 assesseecompany. 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 ended 30th September, 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 30th September, 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 M/s. Lothian Jute Mills Co. Ltd., M/s. Albion Jute Mills Co. Ltd., M/s. 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 30th September, 1952. It is only in the resolution of the board of directors dated 27th August, 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 27th August, 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 30th September, 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 27th August, 1952, it is stated that the acquisition of the shares in M/s. 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 the context of 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 assessees contention that all the other previous holdings were as stock-in-trade cannot be accepted. The negotiations for the sale had been finalised on 12th June, 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 investment 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 M/s. Rohtas Industries Ltd. and M/s. S.K.G. Sugar Ltd. has been acquired as stock-in-trade of the company. The resolution dated 27th August, 1952, relating to the sales of shares in M/s. Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company."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 those findings. The High Courts summary of the reasons which persuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pages 81 and 82 of the print. They are : (1) that the assessee had treated the shares as its investments in earlier years; (2) that even in the year of account, the resolutions of the assessees board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments ; (3) that the sale vouchers showed the sales as sales of investment ; 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 27th August, l952, was an attempt by the assessee to convert a capital loss into a trading loss 4. 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 Commissioner of Income-tax v. Rajasthan Mines Ltd. 5. 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-companyNow, 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. 6. 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 shares 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. 7. It is not this courts 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 Tribunals finding is open to correction by this court on the facts and circumstances of this case. 8.

Decision:
0[ds]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 questionAccordingly, the assessees contention that all the other previous holdings were ase cannot be accepted. The negotiations for the sale had been finalised on 12th June, 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 investment 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 M/s. Rohtas Industries Ltd. and M/s. S.K.G. Sugar Ltd. has been acquired ase of the company. The resolution dated 27th August, 1952, relating to the sales of shares in M/s. Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company."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 those findings. The High Courts summary of the reasons which persuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pages 81 and 82 of the print. They are(1) that the assessee had treated the shares as its investments in earlier years;(2) that even in the year of account, the resolutions of the assessees board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments ;(3) that the sale vouchers showed the sales as sales of investment ; 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 27th August, l952, was an attempt by the assessee to convert a capital loss into a trading lossIn 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 sharesa finding which is essentially finding of factis 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 Commissioner ofx v. Rajasthan Mines LtdIt 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 shares 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 lossIt is not this courts function toe the evidence on record. That was the function of the Tribunal. All that we have to see is whether the Tribunal had departed from thed principles in arriving at its finding. We are not satisfied that the Tribunals finding is open to correction by this court on the facts and circumstances of this case