Rameshwar Prasad Bagla versus Commissioner of Income-Tax, U.P., Lucknow

Sec. 10, Sec. 12, (b) ll'hctlu•r surplus realised on the sale of shares originally hou;.:ht for the contrul of the Co111pany and obtaining nianaging· axency, is lit1hle to tax ar _apital Rains or as profit ott sale of shares.

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The appcllant-a<Sessec is a partner in A. & Co. Managing Agency oi one textile Mill was assigned by the Managing Agents (S. & C9.) to A. & Co. for consiJcration of huying large nun1bcr of shares and cash. ·rhc appellant bought 31,250 shares. An equal nurnhcr of shares \'as iransfcrrcd in his favour by h.s hrothcr. In 1946, the appellant sold 43,700 shares resulting in the profit of Rs. 1,51.927. Before the income Tax Officer the appellant's content:on was that the surplus Y.'as in the natur~ of capital gains. The J.T.O. hoY.·cver, held that the amount y.·as liable to taxation u/s 10 of the Act as profits on the sale 0f share~. The tribunal remanded the case to the l.T.O. The appeal along with the remand report v.·as plt.11.:cd he'iorc the Tribunal for hca ing. After carefully considering al! the evidence the ·rrihunal heh.! th:.i.t the shares \'CfC purchased not 'as stuck-in·tra<le hut for securing the managing agency and co:itrol of the company. The Tribunal further held that the surplus on sale of 5harcs is not incon1e y.·hich is liabh: to income tax under sec. IO. Thereafter, the Tribunal, on the High Court's direction dre\v up a statement of case u/s 62 (2). The High Court reversed the findings of the Tribunal and hclJ against the appellant.

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HELD : There \'as enough m.itcrial a:id evidence referred to by the Tribunal \'hilc recon.ling its finding that the shares in question had been purchased by the asscssce with a view to acquire the manz.ging agency and control of the textile mill anJ that the shares did not constitute stock-in·tradc of the assessce. It is for the Tribunal to decide the question of fact and the High Court in a reference u/s 66 of the Act cannot go beh\nd the Tr;bunal's finding of fact. The High Court can only lay down the law applicable to the facts of the ca<;e found by the Tribunal. The High Court and the Supreme Court. in an appeal ag~;nst the Judgment of the High Court, in a reference u/s 66 of the Act are Flot COI'Mitituted courts o'f appeal. These courts only exercise advisory jurisd:ction in such references. Only in case Y.'here the finding is not based on any relevant evidence or is based on conjectures or suspicion, a qucs~·ion of Jaw is raised and interference with the finding of facts is permissible. The High Court was not justified in setting . aside the finding of fact in the instant case. (457 CJ

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On facts we arc of the opinion that the profit made by the sale of shares constituted capital gain chacgeable to income tax u/s 12 (b). Indeed it was the prayer of the assessee himself in his letter dated March 30, 1949.

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Ra1nnarain Sons (P't.) Ltd. v. Con1111issioner of !nC0111e-tax, [1961)41 l.T.R. 534 relied on. ·

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R: P. BAGLA ', C.I.T, (Khanna, J.)

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453

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A CIVIL APP ELLA TE JURISDiCTION : Civil Appeal No. 1718 of 1969.

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Appeal by special leave from the judgment and order dated February 20, 1967 of the Allahabad High Court in Misc. Case No. 561 of 1963.

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B Bhagirath Das, H. K. Puri, S. K. Hirajee and S. K. Dhingra, for the appellant.

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S. Mitra, -B. D. Sharma and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by

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KHANNA, J. This appeal by special leave is directed against the judgment of Allahabad High Court whereby that court answered the following two ques:ions in a reference made to it under section 66(2) of the Indian Income Tax Act, 1922 (hereinafter referred to as the Act) :

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. ·• ( i) Whether there was material for the finding that the shares in question were purchased by the assessee with a view to acquire the managing agency and the control of the company or the shares constituted his stock-in-trade '? (ii) Even if the shares in question did not constitute the stock-in-trnde of the assessee, whether the p10fit made on the sale of shares did not constitute capital gain chargeable to income tax under section 12-B of the Act?"

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On the first question, the answer of the High Court was that there was no material for the finding that the shares in question were F purchased by the assessee with a view to acquire the managing agency and co.1Lol of the company. It was further held that the shares constituted the stock-in-trade of the assessee. In view of the abeve, the High Court held in answer to question No. (ii) that the profits made by the sale of shares could not constitute capital gain chnrgeable to income tax under section 12-B of the Act.

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The matter relates to assessment year 1947-48, the relevant previous year for which was the Dassera year 2002-2003 corresponding to the period from October 16, 1945 to October 5. 1946.

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Rameshwar Prasad Bagla, the assessee-appellant, is a partner H of firm Agarwal & Co. having one-sixteenth share in the firm. Agarwal & Co. consisted of six groups of partners, viz., (1) Morarka Group, (2) Khetan Group, (3; Seksaria Group,. (4)

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454

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SUPREME COURT REPORTS

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Poddar Group, (5) Bagla Group, and (6) Kantilal Nahalchand. The Bagla Group consisted of the assessee and his brother.

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M/s E. D. Sassoon & Co. Ltd. were the managing agents of the India United Mills Ltd. The latter is a public lilhited company and was engaged in the manufacture of textiles in .Bomay. Large blocks of ordinary and deferred shares m the India Umted Mills Ltd. were held by M/s E. D. Sas>oon & Co. Ltd. and its associates. In 1943 there were negotiations between M/s. E. D. Sassoon & Co. Ltd. and one of the partners of Agarwal & Co. Those negotiations resulted in an agreement dated January 26, 1945 under which Mis E. D. Sassoon & Co. Ltd. agreed to assign the managing agency of the India United Mills Ltd. to Agarwal & Co. with effect from December !, 1943. The consideration for the sale of managing agency was Rs. 57,80,000/-. Agarwal & Co. also agreed to purchase 16,80,000 ordinary shares of the face value of Rs. 10/- each and twenty lac deferred shares of rupee one each of the India United Mills Ltd. The total issued shares of the India United Mills Ltd. were twenty lac ordinary shares of Rs. 10/- each and fifty lac defered shares of rupee one each. The price for this big lot of shares wcs fixed at Rs. 3,37,20,000 calculated at the rate of Rs. 16/8/- for an ordinary shares and Rs. 3 /- for a deferred share.

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At the time when the above mentioned large block of shares of the India United Mills Ltd. was agreed to be acquired, Agarwal & Co. was not in a position to pay for five lac ordinary shares involving an outlay of Rs. 82,50,000. Those five lac shares were purchased by Ramkumar Shivchandrai of Poddar Group of partners in Agarwal & Co. to the extent of three lac shares. The remaining two lac shares were purchased by Khetan Group of · partners. The two Groups, viz., Poddar and Khetan Groups, held the five lac sha;·es on behulf of Agarwal & Co. till 1944. The understanding with Poddar and Khetan Groups was that those shares would be taken up by the partners of Agarwal & Co. at the same price. In January 1945 the aforesaid five lac ordinary shares were taken over by Agarwal & Co. from Poddar and Khetan Groups. The assessee appellant was entitled with reference to his holding in Agarwal & Co. to 31,250 shares, i.e. one-sixteenth out of the five lac shares. The assessee's brother was likewise entitled to an equal number of shares out of those five lac shares. The assessee's brother relinquished his rights in the said 31,250 shares in favour of the assessee, as a result of which the assessee obtained 62,500 shares in the India United Mills Ltd. The shares were paid for at the rate of Rs. 16/8/- per ~hare in 1945. These shares had earlier stood in the name of Bombay Trust Corporation which was a company formed by Sasoon Group of companies. After the managing agency of the India Un.ited

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R. P. BAGLA V, C.I.T. (Khanna, J.)

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455

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A~ Mills Ltd. had been taken over by Agarwal & Co. on December I, 1943, those shares were transferred between March and August 1944 in the name of various persons residing in Jaipur. Those persons transferred the said shares in favour of the asscssee on fonuary 30, 1945. The assessec borrowed rupees ten lacs from Agarwal & Co. in order to pay for the price of those shares.

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Out of 62,500 shares acquired by the assessee, he sold 43,700 shares during the period from April 3, 1946 to July 19, 1946 in seven lots. The rest of the shares remained in the possession of the assessee during the relevant yer. The sale of 43,700 shares resulted in a profit of Rs. 1,80,220 to the assesee. The sale proceeds were thereafter utilised by the assessee for purr.hasing shares of Swadesh Mills Ltd., Kanpur.

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The assessee did not disclose the profit of Rs. 1,80,220 in the turn. In response to a notice issued by the income tax officer, the assessee wrote Jetter dated March 30, 1949 in the course of which he stated :

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"I have already brought to your honour's notice ir. the course of assessment proceedings and would like to confirm that I had certain share transaction in which there has been appreciation to the tune of Rs. 1,51,927/1/11. Since it is common ground that the assessee is not dealing in shares as business the said appreciation in capital should have been normally disclosed as capital gain in the return but I regret that the amount could not be shown, so the return already filed may be treated as amended accordingly."

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The amount of Rs. 1,51,927/1/11 ref11rred to in the assessee's letter included the surplus realised as a result of the sale of 43,700 F shares of the India Unitd Mills Ltd.

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The income tax officer rejected the plea of the assessee that the profit made by the sale of 43, 700 shares of the India United Mills Ltd. was not profit liable to be taxed as such, but was only capital gain. In the previous year with which we are not concerned, the assessec had not been treated as a dealer in shares. The income tax officer held the assessee to b~ a dealer in shares during the relevant year on the ground that the assessee had· entered into share transactions on a very exh:nsive "·ale. The income tax officer accordingly brought to tax the sum of Rs. 1,80.220 under section IO of the Act as profits on the sale of shares. On appeal the Appellate Assistant Commissioner held that 62.500 shares were stock-in-trade. The finding of the income tax officer was substantially upheld. Some relief was granted by reducing the taxable income. On further appeal by the assessec·

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(1973) 2 S.C.R.

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SUPREME COURT REPORTS

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to the Income Tax Appellate Tribunal, the matter was remanded to the inc0me tax officer on May 1, 1954. The income tax officer thereafter submitted a repo1t on June 12, 1956. The appeal along with the remand report of the income tax officer was put up before the Tribunal for hearing. The Tribunal, as per order dated September 26, 1956, held that the excess realised from the sale of shares was not income which was liable to income tax. Jn coming to this conclusion the Tribunal observed :

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"A large number of shares had to be purchased by Agarwal & Co. as a result of an agreement with the Sassoons. Agarwal & Co. was interested in the managing agency of some mills also which came to them as a result of the same agreement. We think that on the facts produced the purchase of the shares by the asses,see was not with a view to deal in those shares but with a view to obtain the managing agency and control of the company. It may also be noted here rhat if the price ruling at tl~e time of the transfer was to be taken into account, perhaps, t)lere is no profit. The profit has been shown as the iransfer is made at the price at which the shares were originally sold by the Sassoons. We think that on the facts before the Income-tax auth'orities the assessee's holding of shares in the India United Mills Ltd. was not the purchase of a stock in trade as held by the Department. We accept the assessee's appeal and direct that the excess realised on the sale of these shares is not income which is liable to income- tax."

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An application was thereafter filed on behalf of the respondent for s·tating a case to the High Court, but that application was rejected. The respondent then approached the High Court under section 66(2) of the Act. The High Court thereupon directed the Tribunal to draw up a statement of case and refer the questions reproduced earlier to the High Court. After the questions were referred, the High Court gave answers to the questions, as mentioned at the commencement of this judgment.

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We have heard Mr. Bhagirath Das on behalf of the appellant and Mr. Sukumar Mitra on behalf of the respondent and are of the opinion that the judgment of the High Court cannot be sustained. The question with which the High Court was concerned was whether there was material before the Tribunal for arrivin n at the finding that the shares in question had been purchased by the assessee with a view to acquire the managing agency and control of the India United Mills Ltd. Perusal of the judgment of the High Court shows that the High Court did not discuss this

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R. P. BAGLA v. C.I.T, (Khanna, I.)

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aspect of the matter. On the contrary, the High Court proceeded straightaway to deal with the matter as if it had itself to arrive at an independent finding on the point as to whether the shares in question had been purchased by the assessee with a view to acquire the managing agency and control of the company. This upproach of the High Court was wholly erroneous and not war-

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B ranted by law. It is for the Tribunal to decide questions of fact, and the High Court in ·a reference under section 66 of the Act cannot go behind the Tribunal's findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. TI1e ·High Court and the Supreme Court, in an <lppepl against the judgment of the High Court given in a reference under section 66 of the Act, arc not constitut~d courts or

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c appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence. If the High Court finds that there is no such evidence to support the finding

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D of fact o: the Tribunal, this circumstance would give rise to a question of law and can be agitated in a reference. It is also well established that when a Tribunal acts on material which is irrelevant to the enquiry or considers material which is partly relevant and partly irrelevant or bases its decision partly on conjectures, surmises and suspicions and partly on evidence, then in

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E such a situation an issue of law arises and the finding of the Tribunal can be interfered with. The finding may also be interfered with if it be found to be so unreasonable that no person acting judicially and properly instructed as to the relevant law could have arrived at it. None of the circumstances justifying interference with the finding of fact of the Tribunal has been shown to exist in this case. In the absence of any such circumstance, the High Court in our view was not justified in interfering with the finding of fact of the Tribunal. The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal. ·

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G The Tribun!J.l in arriving at the conclusion that the purchase of the shares in question by the assessee was with a view to obtain the managing agency and control of the India United Mills Ltd. and that those shares were not purchased as stock-in-trade referred to a number of circumstances. It was found by the Tribunal that the shares in question were out of the lot sold by Sassoons to

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H garwal & Co. It was also found that the shares had been transferred to the assessee at the original price at which these shares ha .been sold ~y the Sasoons and not at the price which was prevallmg at the time of transfer. The Tribunal further

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(1973) 2 S.C.R,

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SUPREME COURT REPORTS

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458

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found that 62,500 shares represented the portion of the assessee in the total number of shares originally purchased by Agarwal & Co. In the light of those findings, the Tribunal recorded its conclusion in the paragraph which has been reproduced earlier. The above conclusion of the Tribunal, in our opinion, was based upon relevant material and could not be interfered with in a reference under section 66 of the Act.

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The High Court in arriving at the conclusion that the shares in question had been purchased not with a view to obtain the managing agency but as a stock-in-trade has referred to the fact that the asscssee took loan for the purchase of those shares and subsequently transferred 43,700 shares out of 62,500 shares. This circumstance as observed by this Court in the case of Ramnarain Sons (Pr.) Ltd. v. Commissioner of Income Tax(') would not by itself go to show that the purchase of shares was not to facilitate the acquisition of the managing agency. In that case the appellant company was a dealer in shares and securities and carried on business as managing agents for some companies. In order to acquire the managing agency of a textile-mill, the appellant company purchased from Sassoon David and Co., who were the managing agents thereof, 1,507 shares of the mill at Rs. 2,321-8-0 per share at a time when the market pice of the shares was Rs. 1,610. The remaining 1,000 shares of the mill held by Sassoon David and Co. were acquired by the directors of the appellant company. Two months later the appellant company sold 400 of those shares at a loss of Rs. 1.78,438. The said loss was claimed as a trading loss. Question arose in this context whether the purchase of shares could be regarded as acquisition of stock-in-trade. Dealing the above question, this Court observed : "By purchasing the shares which facilitated acquisition of the managing agency, a capital asset was acquir· cd and merely because the managing agency cculd be utilised for earning profit, the acquisition of the shares which led to the acquisitio of the managing agency could not, tn the al,scncc of an intention to trade in th"sc shares, be regarded as acquisition of stock-intrade of the share business. The appellants had undoubtedly purchased the shares of t~c Dawn Mills with money borrowed at interest, but that circumstance by itself docs not evidence an intention to trade in the shares. Nor is the fact that the appellants are dealers in shares and their nwmorandum of association authorises them to carry on busine'5 in shares of any importance in the circumstances of the case."

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(I) [1961] 41 l.T.R. 51~.

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R. P. BAGLA V. C.I. r. (Khanna, I.)

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A It was further observed :

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"Subsequent disposal of some out of the shares by appellants could 1lso not convert what was a capital acquisition into an acquisition in the nature of trade."

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We are, therefore, of the view that the answer given by the B High Court to question No. ( l) was not correct. In our opinion, there was material for the finding that the shares in question had been purchased by the assessee with a view to acquire the managing agency and control of the India United Mills Ltd. and that the shares did not constitute the stock-in-trade of the assessee.

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So far as the second question is concerned, we find that it is

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c the common case of the partb that if the shares in question are held to be m1t stock-in-trade of the assessee, in that case the profits made on the sale of those shares would constitute capital gain chargeable to income 1;1.~ under section 12-B ot the Act. Indeed, this is what was prayed for by the assessee in his letter dated \1arch 30. 1949. Lookin~ to the facts also. we arc of the

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D opinion that the pwfit made on the sale of those shares constituted capital gain charge1bk to income tax under section 12-B of the f\ct. We would answer question No. (ii) accordingly.

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We, therefore, accept the appeal. set aside the judgment of the High Court and discharge the answers given by it to the questions referred and substitute the answers indicated above. The E appellant sbll be entitled to his costs of this Court as well as those in the High Court.

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S.B.W.

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12 -lA'JSSnpCI/73

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Rameshwar Prasad Bagla v. Commissioner of Income-Tax, U.P., Lucknow

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Rameshwar Prasad Bagla v. Commissioner of Income-Tax, U.P., Lucknow

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