1997 (9) TMI 2 - SC - Income Tax

Whether a reduction of share capital with the company paying a part of the capital by reducing the face value of its share, results in extinguishment of right in the shares held by the shareholder so that the amount paid on reduction of the share capital would be exigible to capital gains tax - Held, yes - HC was right in concluding that the appellant was liable to pay capital gains tax on the capital gain of Rs. 28,710 as a result of reduction in the preference share in Sarabhai Limited

Issues Involved:
1. Whether the reduction of share capital by reducing the face value of shares constitutes an extinguishment of rights in the shares held by the shareholder.
2. Whether the amount paid on the reduction of share capital is exigible to capital gains tax under the Income-tax Act, 1961.

Detailed Analysis:

Issue 1: Reduction of Share Capital and Extinguishment of Rights
The primary issue is whether the reduction of share capital by decreasing the face value of shares results in the extinguishment of rights in the shares held by the shareholder. The appellant had purchased 90 non-cumulative preference shares at Rs. 420 per share, each originally having a face value of Rs. 1,000. In 1965, the face value was reduced to Rs. 500 per share, and the appellant received Rs. 500 in cash per share. Subsequently, in 1966, the face value was further reduced to Rs. 50 per share, and the appellant received an additional Rs. 450 per share in cash.

The appellant argued that the reduction of the face value did not amount to the extinguishment of any rights and, therefore, did not constitute a transfer under section 2(47) of the Income-tax Act, 1961. The appellant contended that they continued to be a shareholder of the company and cited the case of CIT v. R. M. Amin [1977] 106 ITR 368 (SC) to support the argument that no transfer occurred.

However, the court held that the reduction of share capital does result in the extinguishment of rights. Section 2(47) of the Act includes the "extinguishment of any rights" as a form of transfer. The court noted that while the appellant remained a shareholder, the reduction in share capital proportionately extinguished the right to dividends and the right to share in the distribution of net assets upon liquidation. The reduction in face value from Rs. 500 to Rs. 50 per share effectively reduced the appellant's rights as a shareholder.

Issue 2: Capital Gains Tax Applicability
The second issue is whether the amount received on the reduction of share capital is subject to capital gains tax. The Income-tax Officer initially held that the amount of Rs. 450 per share received by the appellant was liable to capital gains tax. The Appellate Assistant Commissioner reversed this decision, but the Income-tax Appellate Tribunal reinstated the original order, leading to the High Court's involvement.

The court referred to section 45 of the Act, which states that any profits or gains arising from the transfer of a capital asset are chargeable to income-tax under the head "Capital gains." The definition of "transfer" under section 2(47) includes the extinguishment of any rights in the capital asset. The court found that the reduction in the face value of shares resulted in the extinguishment of rights, thus constituting a transfer.

The court also referred to the case of Anarkali Sarabhai v. CIT [1997] 224 ITR 422 (SC), where it was held that the redemption of preference shares by a company amounted to a sale and was exigible to capital gains tax. The court found the principles in Anarkali's case applicable, noting that the reduction in share capital in the present case similarly resulted in the extinguishment of rights and was thus subject to capital gains tax.

The court distinguished the present case from R. M. Amin's case, where the company had gone into voluntary liquidation, and the payment received by the shareholder was not considered a transfer. In contrast, the reduction of share capital in the present case was an active transaction resulting in the extinguishment of rights.

In conclusion, the court upheld the High Court's decision that the appellant was liable to pay capital gains tax on the capital gain of Rs. 28,710 resulting from the reduction in preference share capital. The appeal was dismissed with costs.

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