Case: Commissioner Of Income-Tax, West Bengal Vs. Central India Industries Ltd

depend on the valuation made by the distributing company. The income earned by an assessee has to be determined by the authorities under the Act and not by a third person. If it is otherwise several companies may distribute their dividends in kind and under value the goods distributed and thereby facilitate evasion of tax by their shareholders. Acceptance of such a contention will be destructive of the very basis of taxation of dividends. The question whether the shareholder retains those shares or sells them to others at profit or loss is irrelevant. An income does not cease to be an income merely because the person who receives it retains it in his hands. The fact that he receives it in kind makes no difference in principle. What is brought to tax in the concerned assessment year is the income received by the assessee and not the profits earned by him by dealing with that income. In our opinion, the Tribunal went wrong in thinking that as the assessee company had retained those shares in its own hands those shares should be valued at their face value. At this juncture, it is necessary to mention that in some previous years also the parent company had distributed a portion of its share holding as dividend to its shareholders. It appears, in those years the market value of those shares was less than their face value and the parent company valued those shares for the purpose of its income-tax on the basis of market value and not according to their face value. The parent company appears to believe in the saying "Heads I win tails by loose". But that is only by the way. The only question that we have to decide is what is the income received by the assessee company during the assessment year in question - the income in the real sense. On this question there can be no two answers and the only answer is that the income received by it is the cash amount received plus the value of the shares received the real value of the shares as on the date the assessee company became entitled to it.6. Both the Tribunal and the High Court have attached considerable importance to the fact that while assessing the parent company, the assessing authority had valued those shares at their face value. That being so, they have opined that it was not open to the authorities under the Act to value those shares differently in the hands of the assessee company. Here again we are unable to appreciate their reasoning.The fact that the Department incorrectly valued those shares in the hands of the parent company does not confer a right on the assessee company to insist that the error should also be carried to the assessment of the assessee company. No one gets a vested right in an erroneous order. Because of erroneous valuation of the shares in the hands of the parent company, the assessee may conceivably get a lesser amount as refund under S. 18 (5) but that circumstance cannot alter the levy to be imposed on the assessee company.7. Mr. B. Sen, learned Counsel for the assessee company, tried to give a different shape to the case in the course of his arguments. He, in our opinion, rightly did not base his arguments on the grounds relied on by the Tribunal and the High Court. On the other hand, he contended that on a proper interpretation of the relevant provisions of the Act, it would be seen that the scheme of the Act, in the matter of levying tax on dividend income is that the Income-tax Officer should adopt a uniform method in assessing both the company declaring dividends as well as its shareholders who receive the dividend. In support of this theory of his he relied on Ss. 12 (1-A), 16 (2), 18 (5), 20 and 35 (9) of the Act. Dividend is treated as income in view of S. 12 (1-A). Net dividend received by the shareholders is grossed up for inclusion in the total income of the assessee under S. 16 (2). Section 18 (5) provides for refund of the tax paid on the dividend income by the company which has distributed dividend. Section 20 provides for the issuance of a certificate showing the gross dividend, tax payable on that dividend and the net dividend. Section 35 (9) empowers the Income-tax Officer to recover from the person who receives dividend the tax in respect of the same, payable by the company which distributed the dividend but in fact not paid by that company within the prescribed time. On the basis of these provisions, he urged that if the dividend paid in kind is valued in one manner in the hands of the company which distributed it and in a different manner in the hands of the person who receive it, then the assessee will not be able to get the refund to which he would have been entitled to had that property been valued properly in the hands of the distributing company. Therefore, he urged that we must spell out the scheme put forward by him. Ingenious, though the argument is, it rests on no foundation. There is no provision in the Act which makes the assessment of income dependent on refund. The provisions relating to assessment are independent of refund though the provisions relating to refund may depend on assessment. Equitable considerations are not relevant in interpreting the provisions of a taxing statute, apart from the fact the equity pleaded in this case is remote possibility. None of the provisions relied on by Mr. Sen afford any basis for the scheme sought to be established by him.8. In our opinion the High Court erred in answering the question referred to it in the affirmative and in favour of the assessee. For the reasons mentioned above we discharge that answer and answer that question in the negative and in favour of the Department.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. It is now well settled by the decision of this Court in Kantilal Manilal v. Commr, ofBombay North, Kutch and Saurashtra, Ahmedabad 41 ITR 275   = (AIR 1961 SC 1038  ) that dividend need not be distributed in money only. It may be distributed by delivery of property or right having monetary value. Further, the question whether a dividend has been lawfully distributed or not in the matter of bringing the dividend declared to tax is also irrelevant so long as the distributing company passes a resolution distributing dividends. In so doing, the distributing company may act illegally and thereby incur penalties. But yet the amount so distributed as dividend is assessable in the hands of the receiver of the dividends in view of S. 16 (2) which provides that for the purpose of inclusion in the total income of an assessee, any dividend shall be deemed to be income of the previous year in which it is paid. This position is made clear by the decision of this Court in Kishinchand Chellaram v. Commr. ofBombay, (1962) 46 ITR 640   = (AIR 1963 SCmay also be some other property or right which has monetary value. Therefore when dividend is received in kind, in order to find out the true income received by an assessee, the property that has been received by him has to be valued on the basis of its market value. Otherwise it is not possible to compute the income received by him. It is well known that the face value of shares need not be their real value at a given point of time. The market price of particular shares may be very much more than their face value or very much less. It would be wrong to say that when shares are distributed as dividend, the person who receives them gets only their face value in terms of money. What he really receives is the market value of those shares as on the date he became entitled to those shares. The value of the shares distributed does not depend on the valuation made by the distributing company. The income earned by an assessee has to be determined by the authorities under the Act and not by a third person. If it is otherwise several companies may distribute their dividends in kind and under value the goods distributed and thereby facilitate evasion of tax by their shareholders. Acceptance of such a contention will be destructive of the very basis of taxation of dividends. The question whether the shareholder retains those shares or sells them to others at profit or loss is irrelevant. An income does not cease to be an income merely because the person who receives it retains it in his hands. The fact that he receives it in kind makes no difference in principle. What is brought to tax in the concerned assessment year is the income received by the assessee and not the profits earned by him by dealing with that income. In our opinion, the Tribunal went wrong in thinking that as the assessee company had retained those shares in its own hands those shares should be valued at their face value. At this juncture, it is necessary to mention that in some previous years also the parent company had distributed a portion of its share holding as dividend to its shareholders. It appears, in those years the market value of those shares was less than their face value and the parent company valued those shares for the purpose of itson the basis of market value and not according to their face value. The parent company appears to believe in the saying "Heads I win tails by loose". But that is only by thethis question there can be no two answers and the only answer is that the income received by it is the cash amount received plus the value of the shares received the real value of the shares as on the date the assessee company became entitled to it.6. Both the Tribunal and the High Court have attached considerable importance to the fact that while assessing the parent company, the assessing authority had valued those shares at their face value. That being so, they have opined that it was not open to the authorities under the Act to value those shares differently in the hands of the assessee company. Here again we are unable to appreciate their reasoning.The fact that the Department incorrectly valued those shares in the hands of the parent company does not confer a right on the assessee company to insist that the error should also be carried to the assessment of the assessee company. No one gets a vested right in an erroneous order. Because of erroneous valuation of the shares in the hands of the parent company, the assessee may conceivably get a lesser amount as refund under S. 18 (5) but that circumstance cannot alter the levy to be imposed on the assesseeMr. B. Sen, learned Counsel for the assessee company, tried to give a different shape to the case in the course of his arguments. He, in our opinion, rightly did not base his arguments on the grounds relied on by the Tribunal and the High Court. On the other hand, he contended that on a proper interpretation of the relevant provisions of the Act, it would be seen that the scheme of the Act, in the matter of levying tax on dividend income is that theOfficer should adopt a uniform method in assessing both the company declaring dividends as well as its shareholders who receive the dividend. In support of this theory of his he relied on Ss. 1216 (2), 18 (5), 20 and 35 (9) of the Act. Dividend is treated as income in view of S. 12Net dividend received by the shareholders is grossed up for inclusion in the total income of the assessee under S. 16 (2). Section 18 (5) provides for refund of the tax paid on the dividend income by the company which has distributed dividend. Section 20 provides for the issuance of a certificate showing the gross dividend, tax payable on that dividend and the net dividend. Section 35 (9) empowers theOfficer to recover from the person who receives dividend the tax in respect of the same, payable by the company which distributed the dividend but in fact not paid by that company within the prescribed time. On the basis of these provisions, he urged that if the dividend paid in kind is valued in one manner in the hands of the company which distributed it and in a different manner in the hands of the person who receive it, then the assessee will not be able to get the refund to which he would have been entitled to had that property been valued properly in the hands of the distributing company. Therefore, he urged that we must spell out the scheme put forward by him. Ingenious, though the argument is, it rests on no foundation. There is no provision in the Act which makes the assessment of income dependent on refund. The provisions relating to assessment are independent of refund though the provisions relating to refund may depend on assessment. Equitable considerations are not relevant in interpreting the provisions of a taxing statute, apart from the fact the equity pleaded in this case is remote possibility. None of the provisions relied on by Mr. Sen afford any basis for the scheme sought to be established by him.8. In our opinion the High Court erred in answering the question referred to it in the affirmative and in favour of the assessee. For the reasons mentioned above we discharge that answer and answer that question in the negative and in favour of the Department.