2003 (8) TMI 30 - HC - Income Tax

Whether, Tribunal was justified in entertaining miscellaneous application filed by the assessee and allowing the same by quashing the order of the Commissioner (Appeals) by holding that the transaction did not result in taxable capital gains? Whether, when the Tribunal held under order dated November 27, 1986, that there was no genuine conversion of the shares and debentures into stock-in-trade before transferring the same into partnership firm, the Tribunal was right in law in entertaining the claim of the assessee that the transfer did not result into taxable capital gains? Questions are answered in the affirmative, i.e., in favour of the assessee and against the Revenue.

Summary

Issues:
1. Entertaining miscellaneous application by the Appellate Tribunal and quashing the order of the Commissioner (Appeals).
2. Determining the existence of capital gains in a transaction.
3. Validity of entertaining the claim that the transfer did not result in taxable capital gains.

Analysis:

Issue 1:
The case involved a reference under section 256(2) of the Income-tax Act, 1961, where the Appellate Tribunal entertained a miscellaneous application filed by the assessee and quashed the order of the Commissioner (Appeals). The Tribunal accepted the application, holding that there were no taxable capital gains arising from the transactions in question. The Tribunal's decision was based on the interpretation of the Supreme Court's decision in a similar case, emphasizing that the consideration for the transfer of personal assets to a firm as capital did not fall within the scope of capital gains taxation.

Issue 2:
Regarding the determination of capital gains in the transaction, the Assessing Officer initially taxed the difference in cost of shares and their market value when transferred to a partnership firm. The Commissioner of Income-tax (Appeals) upheld this decision, considering the conversion of capital assets into stock-in-trade as a legal device to avoid tax. However, the Tribunal later held that there was no genuine conversion of shares into stock-in-trade before transferring them to the partnership firm. The Tribunal also noted that the transaction amounted to a transfer within the meaning of the Income-tax Act.

Issue 3:
The Tribunal's acceptance of the miscellaneous application filed by the assessee was challenged by the Revenue, arguing that the Tribunal should not have entertained the claim that the transaction did not result in taxable capital gains. The Revenue contended that the Tribunal's decision was based on the assumption that the firm was genuine, which was not the case. However, the Tribunal's decision was supported by the principles laid down by the High Court, emphasizing that non-consideration of relevant judgments constituted a mistake apparent from the record. The Tribunal was justified in exercising its powers under the Act to rectify the order based on the Supreme Court's decision.

In conclusion, the High Court answered all three questions in favor of the assessee and against the Revenue, disposing of the reference accordingly with no order as to costs.