2013 (12) TMI 543 - HC - Income Tax

Addition on account of difference between the sale price declared by the assessee and the market price of the shares quoted at the recognised stock exchange - applicability of section 69B - Held that - The primary contention of the Revenue is that the so-called oral trust, under which the shares were sold, is sham. HEICL could not have sold or transferred the shares. The fact is that the shares were sold and transferred and HEICL had acted as a trustee . - The sales were duly recorded and there is no allegation that money or under table consideration was paid. There is no such finding by the Assessing Officer and the tribunal has categorically stated that there is no evidence or material to the said effect. Remanding back the issue to decided afresh - Held that - on mere suspicion, the matter cannot be remitted to the Assessing Officer to conduct fresh inquiry without there being any concrete foundation justifying and asserting a firm apprehension. Even before us during the course of hearing, the standing counsel for the Revenue did not press or make any headway. The suspicions raised remained in the realm of conjectures and surmises and do not have a firm basis. The substantial question of law has to be treated as partly answered in favour of the Revenue and against the respondent insofar as transfer of 77929 shares by HEICL to V.C. Vaidya or ATPPL is concerned, on which we have passed an order of remit to the tribunal. However, on other aspects/transactions of HEICL, the appeal is dismissed and the question of law is answered in favour of the respondent-assessee and against the appellant-Revenue.

Summary

Issues Involved:
1. Deletion of the addition of Rs. 2,39,86,572/- by ITAT.
2. Applicability of Section 69B of the Income Tax Act to the facts of the case.

Detailed Analysis:

Issue 1: Deletion of the Addition of Rs. 2,39,86,572/- by ITAT

The primary issue was whether the ITAT was correct in deleting the addition of Rs. 2,39,86,572/- being the difference between the sale price declared by the assessee and the market price of the shares quoted at the recognized stock exchange. This issue pertained to the transactions carried out by HCL Employees and Investment Company Limited (HEICL) and Associated Techno Plastics Private Limited (ATPPL).

Facts and Findings:
1. HEICL's Transactions: HEICL had transferred 12,70,000 shares of HCL to 62 different persons at prices varying between Rs. 18.91 to Rs. 6.02, while the market price on the date of sale was significantly higher. The Assessing Officer added Rs. 2,39,86,572/- to HEICL's income, considering the difference between the market price and the sale price declared.
2. Tribunal's Decision: The tribunal held that HEICL acted as a trustee and did not acquire ownership of the shares. The tribunal noted that the sales were recorded, and there was no evidence of any under-the-table consideration. The tribunal concluded that the transaction was not a sham and the consideration received was the actual sale consideration.

Court's Analysis:
- The court observed that HEICL acted as a trustee and sold the shares as per the directions of the principal promoters. The shares were not registered in the name of HEICL, and no additional consideration was received beyond the declared amount.
- The court noted that the Revenue's primary contention was that the oral trust was a sham, but there was no evidence to support this claim. The court emphasized that once the consideration received is accepted as the actual amount paid, there cannot be any notional addition to the income of HEICL.

Conclusion:
The court found no sustainable reasons to hold the tribunal's order as perverse or contrary to evidence. The substantial question of law regarding the deletion of the addition was answered in favor of HEICL, except for the transaction involving 77,929 shares sold to ATPPL, which was remanded to the tribunal for fresh adjudication.

Issue 2: Applicability of Section 69B of the Income Tax Act

The second issue was whether the Tribunal was justified in holding that Section 69B of the Income Tax Act has no application to the facts of the case, particularly concerning ATPPL.

Facts and Findings:
1. ATPPL's Transactions: ATPPL had purchased 3,90,181 equity shares of HCL Limited from different persons at prices lower than the market price on the date of purchase. The Assessing Officer invoked Section 69B and added the difference between the sale consideration paid and the quoted market price to ATPPL's income.
2. Tribunal's Decision: The tribunal held that Section 69B could not be applied as the Assessing Officer did not dispute the actual sale consideration paid by ATPPL. The tribunal relied on the Supreme Court decision in K.P. Varghese v. Income Tax Officer, which required proof of understatement of consideration.

Court's Analysis:
- The court noted that the tribunal had not examined the factual aspects in detail and relied on the principle that the actual sale consideration paid was not disputed by the Assessing Officer.
- The court observed that the shares were transferred to ATPPL, and the consideration was paid by cheque. However, the tribunal did not delve into how the shares were transferred by Y.C. Vaidya to ATPPL.

Conclusion:
The court remanded the matter to the tribunal for fresh adjudication regarding the transaction of 77,929 shares to ATPPL. The substantial question of law regarding the applicability of Section 69B was answered in favor of the Revenue, with an order of remit to the tribunal for fresh decision.

Final Judgment:

- ITA No. 95/2002: The appeal was partly allowed. The substantial question of law was answered in favor of the Revenue concerning the transfer of 77,929 shares to ATPPL, with an order of remit to the tribunal. For other transactions, the appeal was dismissed, and the question of law was answered in favor of HEICL.
- ITA No. 20/2000: The question of law was answered in favor of the Revenue, with an order of remit to the tribunal for fresh decision. The tribunal was directed to examine the issues afresh, considering the observations made by the court.