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Issues Involved:
1. Whether the gift of Rs. 75,000 to the managing director's daughter could be treated as part of the accumulated profits available with the company at the time of winding up for the purpose of dividend u/s 2(22)(c) of the Income-tax Act, 1961. Summary: Issue 1: Treatment of Gift as Accumulated Profits The primary issue was whether the gift of Rs. 75,000 to the managing director's daughter could be treated as part of the accumulated profits available with the company at the time of winding up for the purpose of dividend u/s 2(22)(c) of the Income-tax Act, 1961. The Income-tax Officer treated the gift and the gift-tax paid thereon, totaling Rs. 82,000, as accumulated profits available with the company at the time of winding up, based on the provisions of section 531A of the Companies Act, 1956, which renders certain transfers void against the liquidator. Appellate Assistant Commissioner's View The Appellate Assistant Commissioner disagreed, holding that even if the gift was void against the liquidator u/s 531A, the amount had been expended and irretrievably gone out of the company's hands, and thus could not be treated as "accumulated profits" available for distribution as dividend. The appeals were allowed. Tribunal's Decision The Income-tax Appellate Tribunal reversed the Appellate Assistant Commissioner's order, upholding the assessing authority's decision to treat the amount as accumulated profits for the purpose of computing dividend u/s 2(22)(c) of the Act. The Tribunal held that the liquidator was entitled to treat the transfer as non est and void, thus considering the amount as accumulated profits available at the time of winding up. High Court's Analysis The High Court analyzed whether section 531A of the Companies Act renders the gift non est and void. It concluded that section 531A treats transfers as void only against the liquidator, not against the whole world. The liquidator has the option to treat the transfer as void or to affirm it. Since the liquidator did not choose to avoid the transfer, it remained valid and operative. The court held that the assessing authority and the Tribunal were not entitled to ignore the gift and treat the amount as accumulated profits in the hands of the liquidator. Requirement of Actual Distribution The court further held that section 2(22)(c) requires an actual physical distribution of accumulated profits, which did not occur in this case as the amount never reached the liquidator. The court emphasized that a notional distribution of amounts not actually available with the liquidator is not contemplated by the provision. Conclusion The High Court concluded that the amount of Rs. 75,000 gifted to the managing director's daughter was not liable to be treated as accumulated profits in the hands of the liquidator for the purpose of section 2(22)(c) of the Income-tax Act, 1961. The decision of the Tribunal was found to be incorrect, and the conclusion reached by the Appellate Assistant Commissioner was deemed correct. The reference was answered in the negative, in favor of the assessee and against the Revenue.
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