2012 (9) TMI 768 - AT - Income Tax

Computation of long term capital gains - dubious method of declaration and payment of dividend to avoid payment of tax on LTCG by the assessee - Held that - It is important to bear in mind uncontroverted claim of the assessee that there were sufficient reserves and surplus, which were eligible for distribution as dividend , and the NIPL had sufficient cash balances as well. The nature of amounts distributed as dividend has not been altered as a result of, what the revenue authorities describe as, colourable device to evade taxes. As decided in Azadi Bachao Andolan s case(2003 (10) TMI 5 - SUPREME COURT) nowhere said that every action or inaction on the part of the taxpayer which results in reduction of tax liability to which he may be subjected in future, is to be viewed with suspicion and be treated as a device for avoidance of tax irrespective of legitimacy or genuineness of the act . - Undoubtedly, the course adopted by the assessee was tax advantageous inasmuch as if NIPL, assessee s wholly owned subsidiary, was not to distribute dividend and sell the shares without this exercise, the tax outgo would have been ₹ 94 lakhs more than under the present arrangement, but then every tax advantageous action or inaction cannot be treated as a colourable device unless such an action or inaction is not bonafide, it conceals the true nature of transaction or is an exercise without any commercial justification. Thus distribution of dividend by NIPL, prior to sale of its shares by the assessee, even though tax advantageous cannot be termed as a colourable device or sham transaction and the receipt of these dividends cannot be recharacterized as sale consideration of shares in the hands of the assessee - in favour of assessee.

Summary

Issues Involved:
1. Computation of long-term capital gains.
2. Valuation of equity shares.
3. Legitimacy of dividend payment to Nedllyod India Pvt Ltd.
4. Alleged violation of RBI guidelines in the transaction of sale of shares.

Detailed Analysis:

1. Computation of Long-Term Capital Gains:
The primary issue revolves around whether the CIT(A) erred in directing the Assessing Officer to compute the long-term capital gains at Rs. 2,58,76,551 instead of Rs. 17,12,57,331. The assessee sold 10,71,420 equity shares of its wholly owned subsidiary, Nedllyod India Pvt Ltd (NIPL), to Maersk India Private Limited for Rs. 5,20,28,155. The dispute arose due to the distribution of dividends amounting to Rs. 14,99,988,800 by NIPL just before the sale, which the Assessing Officer considered a colorable device to reduce capital gains. The CIT(A) disagreed, noting that the dividends were legally declared and the dividend distribution tax was paid.

2. Valuation of Equity Shares:
The second issue concerns the valuation of equity shares at Rs. 48.56 per share instead of Rs. 184.25 per share. The Assessing Officer argued that the valuation was manipulated by declaring dividends just before the sale to reduce the net asset value (NAV) of the shares. The CIT(A) held that the valuation was in accordance with the law and the RBI guidelines, and the dividends were declared from substantial reserves and surplus.

3. Legitimacy of Dividend Payment:
The third issue is whether the payment of dividends to Nedllyod India Pvt Ltd was a sham and a colorable transaction. The Assessing Officer viewed the dividend distribution as a device to evade taxes, citing the urgency and timing of the declaration and payment. The CIT(A) found no evidence that the dividend distribution was outside the legal framework, noting that the dividends were declared in a board meeting and the payment was reflected in the bank account.

4. Alleged Violation of RBI Guidelines:
The fourth issue is whether the transaction of sale of shares violated RBI guidelines. The Assessing Officer claimed that the sale occurred before obtaining the second valuation report required by the RBI guidelines. However, the CIT(A) and the Tribunal found no violation, as the sale price was determined in accordance with the guidelines, and the timing of the valuation report did not affect the legality of the transaction.

Tribunal's Conclusion:
The Tribunal upheld the CIT(A)'s decision, stating that the distribution of dividends by NIPL before the sale of shares was a legitimate action and not a colorable device. The dividends were declared from available reserves and surplus, and the dividend distribution tax was duly paid. The Tribunal emphasized that every tax-advantageous action cannot be deemed a colorable device unless it lacks commercial justification or conceals the true nature of the transaction. The appeal was dismissed, affirming the computation of long-term capital gains at Rs. 2,58,76,551 and the valuation of shares at Rs. 48.56 per share.