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

This appeal by certificate arises from the decision of the High Court of Calcutta in (Special Jurisdiction) Matter No. 9 of 1963 on its file. That was a reference made to the High Court under section 66(1) of the Indianx 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 Indianx 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 ag business but was a loss on realisation of investment ?"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 appealThe relevant assessment year is, the previous year ending in September/October, 1952

Reasoning: 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we have not the least doubt in our mind that the purchase of the shares on the sale of which the loss occurred had been originally made as capital investment and we agree with the observation of the Appellate Assistant Commissioner that it was only at the end of August, 1952, when the assessee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