Case: Commissioner Of Income Tax, Madras Vs. M/S. Madurai Mills Co. Limited

1. This appeal on certificate has been filed by the Commissioner of Income-tax against the judgment of Madras High Court whereby that court answered the following question referred to it under Section 66 (1) of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act) in the negative in favour of the assessee respondent:"Whether on the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 95,944/- is liable to tax under Section 12B (2)?"2. The matter relates to assessment year 1961-62. The assessee is a public limited company carrying on the business of manufacture and sale of yarn. The assessee held shares in the following companies as under:1) Indian Mills Supply Company (Private) Limited, 2,760 shares of the face value of Rs. 100/-2) Harveys (Private) Limited, 1,000 shares of the face value of Rs. 100/-3) Pandyan Weaving Mills (Private) Limited, 1,800 shares of the face value of Rupees 100/-The above three companies went into voluntary liquidation in December, 1959. In the course of the liquidation proceedings, the liquidators made distribution in the relevant year of account and the assessee company got cash or assets in lieu of cash of the amount of Rs. 4,57,858, Rs. 1,41,739 and Rs. 1,83,175 in respect of Indian Mills Company (Private) Limited, Harveys (Private) Limited and Pandyan Weaving Mills (Private) Limited respectively. The revenue took the view that by reason of the distribution of assets of the three private companies under liquidation by the liquidators, there had been a capital gain of Rupees 96,735.85 in respect of Indian Mills Supply Company (Private) Limited and Rupees 41,168.88 in respect of Harveys (Private) Limited making a total of Rs. 1,37,904.73. Out of that, loss amounting to Rs. 41,960.56 in respect of Pandyan Weaving Mills (Private) Limited was deducted, leaving a balance of Rs. 95,944.00, The assesses company at first showed the sum of Rs. 95,944.00 as capital gains but subsequently it filed a statement showing a loss of Rs. 59,104 on the basis that the cost of shares distributed by the liquidators should be taken at the figure at which they had been acquired by the companies which distributed the shares. The Income-tax Offices assessed the assessee company to capital gain at the sum of Rs. 95,944. Aggrieved by the order of the Income-tax Officer the assessee filed appeal before the Appellate Assistant Commissioner and on being unsuccessful there, filed further appeal before the Income-tax Appellate Tribunal. The main contention which was raised on behalf of the assessee was that the transaction in question involved no sale, exchange, relinquishment or transfer and as such, the amount in question was not capital gain under Section 12B of the Act. The Appellate Assistant Commissioner was of the view that the surplus arose out of the exchange of shares held by the assessee company in the three companies and therefore the surplus ought to be brought to tax. The Tribunal held that there was an exchange or transfer of shares and assets in question. The transaction, according to the Tribunal, could also be viewed as a relinquishment. The assessee was consequently held liable to pay tax on the sum of Rs. 95,944 under Section 12B of the Act. The question reproduced above was thereafter, on the application of the assessee, referred to the High Court3. The High Court while answering the question in the negative held that when a liquidator distributes the assets of a company which has gone into voluntary liquidation, he is performing a legal function and there is no element of sale, transfer, exchange or relinquishment involved in such distribution. The judgment of the High Court is reported in (1969) 74 I.T.R. 623 (Mad)4. Before dealing further, we may mention that capital gains were charged for the first time by the Income-tax and Excess Profit Tax (Amendment) Act, 1947 (Act 22 of 1947) which inserted Section 126 in the Act. It taxed capital gains arising after March 31, 1946. The tax on capital gains was virtually abolished by the Indian Finance Act, 1949 which confined the operation of that section to capital gains arising before April 1, 1948. Capital gains tax was, however, revived with effect from April 1, 1957 by the Finance (No. 3) Act of 1956. Sub-section (1) of Section 12B along with its first proviso was as under:"The tax shall be payable by an assessee under the head capital gains in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer, of a capital asset effected after the 31st day of March, l956, and such profits and gains shall be deemed to be income of the previous year to which the sale, exchange, relinquishment or transfer took place:Provided that any distribution of capital assets on the total or partial partition of a Hindu undivided family or under a deed of gift, bequest or will, shall not for the purposes of this section be treated as a sale, exchange, relinquishment or transfer of the capital assets.........."Sub-section (2) of Section 12B prescribed a statutory formula for purposes of computation of capital gains. Sub-section (3) of Section 12B was as under:"Where any capital asset became the property of the assessee by succession, inheritance or devolution or on any distribution of capital assets on the total or partial partition of a Hindu undivided family or on the dissolution of a firm or other association of persons or on the liquidation of a company or under a deed of gift, or transfer on irrevocable trust, its actual cost allowable to him for the purposes of this section shall be its actual cost to the previous owner thereof, and the provisions of sub-section (2) shall apply accordingly; and where the actual cost to the previous owner cannot be ascertained, the fair market value at the date on which the capital asset became the property of the previous owner shall be deemed to be the actual cost thereof..........."5. Perusal of sub-section (1) of Section 12B reproduced above shows that the liability to pay tax on account of capital gains can arise only if the assessee makes profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after 31-3-1956.

Reasoning: We, however, find ourselves unable to accede to this contention. The act of each of the liquidators in distributing the assets of the company which had gone into voluntary liquidation did not result in the creation of new rights. It merely entailed recognition of legal rights which were in existence prior to the distribution. According to observations on page 512 of Buckleys Commentaries on the Companies Act, Thirteenth Edition, a liquidator is only a trustee in the sense that the property of the company ceases upon the winding up to belong beneficially to the company and passes into his custody, to be applied by him as directed by the statuteWhen a share-holder receives money representing his share on distribution of the net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer. In the circumstances, we find it difficult to hold that the assessee company is liable to pay tax on capital gains as contemplated by Section 12B of the Act in respect of the amount of Rs. 95,944In the present case there has been no sale or receipt of price but only a distribution of the assets of the companies which had gone into voluntary liquidation. Such a transaction does not amount to sale, exchange, relinquishment or transfer of the assets. The revenue, in the circumstances, cannot derive much assistance from that case11. We are, therefore, of the view that distribution of the assets of the companies in liquidation does not amount to a transaction of sale, exchange, relinquishment or transfer so as to attract Section 12B of the ActThis contention, in our opinion, is not well founded. It appears to us that the cases of the distribution of capital assets on dissolution of a firm or other association of persons or liquidation of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allay fears even though the language of sub-section (1) of S. 12B was not intended to apply to such cases. Provisos, as mentioned on page 221 of Craies on Statute Laws, Sixth Edition, are often inserted to allay fears. A proviso is inserted to guard against the particular case of which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all13. We have already stated earlier that the distribution of assets by a liquidator on the voluntary winding up of a company cannot constitute sale, transfer or exchange for the purpose of sub-section (1) of S. 12B of the Act. If the language of sub-section (1) of Section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer or exchange the said transaction of distribution of assets would not, in our opinion, change its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to sub-section (1) of Section 12B of the Act, even though such a clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition; page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Further, it the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso (see page 217 of Craies on Statute Law, Sixth Edition)14. In the light of what has been discussed above, the difference between the language of the first proviso to Section 12 (B) (1), as inserted by Finance (No. 3) Act of 1956 and the third proviso to Section 12 (b) (1), as inserted by Act 22 of 1947, cannot be of much material help to the revenueIt cannot, however, be said that such a liability would also arise even in the absence of such provisions under the Act of 1922.