2017 (9) TMI 1236 - HC - Income Tax

Additions - whether stocks transferred on cost price can be assessed to tax on a notional price? - fix the price of the stock and transfer the same at a price less than the market value - principles of assessing the value of the stock of a dissolved firm for assessing the mutual adjustment of partner s shares can be applied to a running company? AO observed that the outgoing Directors of the Company were entitled only to an amount of ₹ 40.00 lacs being share held by them and it was observed that amount of goodwill shown in the balance sheet was only to create an impression that no amount was due towards the company and that assets were equal to that of the liabilities. Accordingly, the Assessing Officer came to the conclusion that it was merely a device to evade tax. He applied gross profit @ 9.6 per cent and estimated profit to transfer tradable assets worth R. 70,11,090/- and made an addition of ₹ 6,35,204/- Held that - The profit so transferred would form part of cost of acquisition of the shares, dealership rights and the goodwill. The transferee was required to incur extra cost for acquisition of these assets. Such cost being capital in nature is not an allowable expenditure. Therefore, component of gross profit on the transfer of trading assets belonging to the assessee at cost price is a profit liable to tax in the hands of the company. In our considered view the Tribunal has rightly applied the ratio laid down in the case of A.L.A Firm (1991 (2) TMI 1 - SUPREME Court ) to the fact situation of the case. Even otherwise, the fact that the Assessing Officer has made the addition in the hands of the Directors would not make any difference in the present case for the reason that such income actually belongs to the assessee and therefore, taxable as such in its hand. - Decided in favour of revenue.

Summary

Issues:
1. Assessment of stocks transferred on cost price for tax purposes.
2. Right of the assessee to fix stock price and tax implications.
3. Application of principles for assessing dissolved firm's stock to a running company.

Analysis:

Issue 1: Assessment of stocks transferred on cost price for tax purposes
The appeal raised substantial questions of law regarding the assessment of stocks transferred on cost price for taxation. The case involved a company with a change in management and shareholdings, where dealership rights and shares were transferred for consideration. The Assessing Officer observed discrepancies in the valuation of assets and liabilities post-transfer. Despite the absence of proper accounting records, the Officer issued a Show Cause Notice and made additions to the taxable income based on estimated profits from the transfer of tradable assets. The Tribunal upheld the Officer's decision, emphasizing that the profit component transferred to outgoing Directors belonged to the company and was taxable in the company's hands. The Court concurred, stating that the profit on transfer of trading assets at cost price constituted taxable income for the company.

Issue 2: Right of the assessee to fix stock price and tax implications
The second question of law focused on the right of the assessee to fix stock prices and the consequent tax implications. The appellant argued that the principles applied to dissolve a firm could not be extended to a continuing company. It was contended that any profits should be attributed to the outgoing Directors individually, not the assessee. However, the Revenue contended that the case involved a transfer of capital assets, justifying the Assessing Officer's actions. The Court held that the profit transferred to the outgoing Directors actually belonged to the assessee, making it taxable in the company's hands. The Tribunal's application of legal precedent in a similar case was deemed appropriate by the Court.

Issue 3: Application of principles for assessing dissolved firm's stock to a running company
The third issue pertained to the application of principles used to assess dissolved firm's stock to a running company. The appellant argued against such application, citing differences in the situations. However, the Court upheld the Tribunal's decision, stating that the Assessing Officer's addition of income in the Directors' hands did not alter the fact that the income belonged to the assessee and was taxable as such. Consequently, the Court answered the substantial questions of law in the negative for the first issue, affirming tax levied on actual profits, and in the affirmative for the third issue in favor of the Revenue. Ultimately, the appeal was dismissed for lack of merit.