TaxTMI 
TaxTMI 
1976 (1) TMI 18
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....amage to the machinery hired from the assessee and other machinery belonging to Messrs. Jasmine Mills Pvt. Ltd. The assessee's machinery was damaged to such an extent that it could not any longer be put to use as such. It appears that Messrs. Jasmine Mills Pvt. Ltd. has insured the assessee's machinery along with its own machinery and on a settlement of the insurance claim, it received certain amount out of which it paid a sum of Rs. 6,32,533 to the assessee on account of the destruction of its machinery. The difference between the actual cost of such machinery and its written down value worked out to Rs. 2,62,781 and in the course of proceedings for assessment to income-tax for the assessment year 1967-68 (the relevant previous year being the year ending December 31, 1966), the assessee returned the said amount of Rs. 2,62,781 as profit chargeable to tax under section 41(2) of the Act. The Income-tax Officer, in addition to bringing the aforesaid amount to tax, also subjected to tax the additional amount of Rs. 3,50,792, being the difference between the amount of Rs. 6,32,533 received as aforesaid by the assessee from Messrs. Jasmine Mills Pvt. Ltd. and the original cost o....
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....on 2(47) of the Act ? 2. Whether, on the facts and in the circumstances of the case, the sum of Rs. 3,50,792 being the excess over the cost of machinery received from Messrs. Jasmine Mills Pvt. Ltd. was chargeable to tax as capital gains under section 45 of the Act? " 4. The revenue fairly conceded before us that the transaction in the present case, which resulted in leaving in the hands of the assessee the surplus of Rs. 3,50,792 was not a sale, exchange or relinquishment of the capital asset in the shape of machinery nor was it compulsory acquisition thereof within the meaning of section 45 read with section 2(47). It was contended on its behalf, however, that the surplus was exigible to tax as profit arising from the extinguishment of the rights of the assessee in the said asset and, alternatively, as profit resulting from the transfer (as the said word is understood in its plain and natural meaning) of such asset under the said provision. According to the revenue, (1) the payment in question was made not in discharge of the legal obligation, if any, of Messrs. Jasmine Mills Pvt. Ltd. to make good the loss sustained by the assessee on account of the damage or destruc....
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....levant time came up for interpretation before the Bombay High Court in Provident Investment Co. Ltd. v. Commissioner of Income-tax [1953] 24 ITR 33 (Bom) and it took the view that the word "transfer" occurring in the said provision did not comprehend relinquishment of a capital asset and that, therefore, it did not subject to tax capital gains arising to an assessee by reason of the fact that he had relinquished some capital asset belonging to him or some rights vested in him. This decision was affirmed by the Supreme Court in Commissioner of Income-tax v. Provident Investment Co. Ltd. [1957] 32 ITR 190 (SC). 9. In the meantime, however, the levy of "capital gains" was again imposed by the Finance (No. 3) Act, 1956 (77 of 1956), and section 12B was reintroduced in wider terms so as to bring within its ambit " any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after 31st March, 1956", etc. The section was obviously recast with the end in view of setting at naught the decision of the Bombay High Court in Provident Investment Co. Ltd.'s case [1953] 24 ITR 33 (Bom) and of subjecting to tax any profit or gain arising even ....
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....ition thereof under any law is now subjected to tax under section 45. 12. It is against this background that the enactment in question will require to be interpreted, for, as earlier stated, it has been re-enacted in the present form in order to plug the lacuna which was found to exist in the old section 12B(1) which was construed by the Bombay High Court as aforesaid. It was to cure this mischief of the profits or gains resulting from certain transactions, which the legislature intended to tax as capital gains but which escaped taxation, that the legislature has adopted the present legislative device or formula of defining the word "transfer" by an inclusive definition which gives it an extended meaning and specifically brings within its wide ambit transactions such as relinquishment, extinguishment and acquisition. 13. Now, substituting the crucial words "the extinguishment of any rights therein" for the word "transfer" in section 45, the material part of the said section will read as under : "Any profits or gains arising from the extinguishment of any rights in a capital asset effected in the previous year shall, save as otherwise provided in sections 53 and 54, b....
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....ossible, unless, of course, there is any indication in the subject-matter or context to limit or qualify the ordinary wide construction of that word ...... There being no contrary intention in the subject-matter, or context, the words ' any rights ' must include all rights......" 17. It was there pointed out that where the capital asset consists of incorporeal property, such as a chose-in-action, the bundle of rights which constitutes such incorporeal property would be comprehended within the meaning of the words "any rights". It would thus appear that the expression "any rights therein" is wide enough to take in all kinds of rights--qualitative and quantitative--in the capital asset. 18. The Tribunal, however, thought, and the assessee has adopted the same posture before us, that having regard to the subject and context, two limitations were required to be read in the phrase "extinguishment of any rights therein", first, that since there could not be any transfer of a non-existing asset, if the capital asset is not in existence, there would be no question of transfer thereof, that is, of extinguishment of any rights therein and, secondly, that the words "effected in ....
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....e no application.......The word ' therein ' means nothing more than ' in the capital asset ' and all that the definition requires is that there must be extinguishment of rights in the capital asset. It does not go further and say that despite extinguishment of the rights in the capital asset, the capital asset must continue to exist." 20. These observations succinctly show that there is nothing in the subject or context which compels the conclusion that in order that transfer, that is, extinguishment of rights could take place, the asset must continue in existence. Therefore, even in cases where the asset is so extensively damaged by fire, flood, earthquake and the like as to render it useless, the rights therein, if any, could still be wiped out, and if profit arises from such a transaction, there is nothing to preclude the applicability of this provision. 21. The question of the implication of the second limitation was considered by this court in Vadilal Soda Ice Factory's case [1971] 80 ITR 711 (Guj) in the context of the word "transfer" in section 12B(1) of the 1922 Act as reintroduced by the Finance (No. 3) Act, 1956, and the relevant observations are....
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....hat its decision, in so far as it is based on those considerations, is vitiated in law. We must say in fairness to the Tribunal, however, that its attention was not drawn to the decisions of this court referred to above and that if those decisions were brought to its notice it would not possibly have taken the view that it did. 24. It was then urged on behalf of the assessee that those transactions which are covered within the extended meaning of the word "transfer" must still continue to bear the impress of "transfer" as it is understood in ordinary parlance and in its legal concept, for the legislature cannot by adopting the device of an inclusive definition command that an act may be treated as "transfer" although in reality it is not, and that since "extinguishment", if construed so widely, does not bear such impress, it should be construed narrowly in order to be called "transfer". Now, in the first place, it is not open to the assessee to urge this point in view of the decisions in Vadilal Soda Ice Factory's case [1971] 80 ITR 711 (Guj) and R. M. Amin's case [1971] 82 ITR 194 (Guj). In the next place, the argument is thoroughly misconceived. It is well-settled that....
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....ference between the actual cost and the written down value of such asset. The argument in substance was that the legislature has already taxed profits arising out of the demolition or destruction of a capital asset to the extent that it thought fit under section 41(2), and that it could not have intended to tax profits in excess of the amount so brought to tax, and that if it really intended to do so, it would have said so in so many words in section 2(47) by specifically providing in the inclusive definition for the cases of demolition and destruction. We are unable to agree. In the first place, as stated earlier, "extinguishment", in its ordinary meaning, takes in destruction or demolition and since there is nothing in the subject or context cutting down the wide operation of its meaning, it is futile to urge that a specific provision covering the cases of demolition or destruction was required to be made in section 2(47). It is well settled that a construction which requires the legislature to indulge in tautology of language must, as far as possible, be avoided. In the next place, merely because the legislature has levied the "balancing charges", it cannot be said that it could....
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....asset and the profit or gain accruing to or received by the assessee. In other words, it is such extinguishment which must have occasioned the profit or gain and not any other independent transaction as a result of which some different rights are terminated by satisfaction or otherwise. However, merely because a transaction resulting in extinguishment consists of a series of steps, it would not necessarily follow that each step is a separate or disjointed transaction which successively extinguishes distinct rights. In such a case, on an overall view of the entire transaction, it must be ascertained whether each step is really a link in the chain and whether the cessation of any right in the asset and the profit that has accrued or has been received are still substantially connected with each other as cause and effect despite these several intermediate steps. This is really the ratio of the decision of the court in R. M. Amin's case [1971] 82 ITR 194 (Guj) also in which this court read section 48, which says that the income chargeable to tax as "capital gains" shall be computed by deducting from the "full value of the consideration received or accruing as a result of the transfe....
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....id on a pro rata basis the sum of Rs. 6,32,533 to the assessee ; and (viii) that the amount so received by the assessee exceeded the original cost of the machinery by Rs. 3,50,792. 30. The net effect of the transaction as a whole was that there was an extinguishment of the proprietary interest of the assessee in the capital asset, namely, the machinery, and that profit arose to it in consequence of the payment made for such extinguishment. On account of fire, the machinery was so extensively damaged that, for all practical purposes, it ceased to be useful as such. Since the entire machinery in the premises of the insured was covered by insurance, the insurer paid the value of the machinery to the insured and took away the damaged machinery. The insured, in its turn, paid proportionate amount out of the compensation received from the insurer to the assessee and in the course of this transaction the bundle of proprietary rights which the assessee had in the machinery, including the rights to claim its possession back from the hirer on the termination of the contract of hire and to hold, enjoy and dispose it of, came to an end. There was thus a clear extinguishment of the ....
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....ved as under (at pages 466-467) (36 Comp Cas 438, 442) : " There can be no doubt that a bailee has an insurable interest in goods entrusted to him,....... A bailee can if he chooses merely insure to cover his own loss or personal liability to the owner of the goods either at common law or under contract and if he does that of course he can recover no more under the policy than sufficient to make good his own personal loss or liability. But equally he can if he chooses insure up to his full insurable interest--up to the full value of the goods entrusted to him. And if he does that he can recover the value of the goods though he has suffered no personal loss at all. But in that case the law will require him to account to the owner of the goods who has suffered the loss or, as Lord Campbell says, he will be trustee for the owners." 32. Lord Hodson, who delivered a concurring opinion, said with regard to a policy insuring the owner's proprietary interest in the goods (at page 472) (36 Comp Cas 438, 447) : "Sufficient to say that at all material times such a policy would be illegal if the assured intended to retain the proceeds of his claim on the insurer for hi....
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....spect of that part of the amount realised on the policy and the assessee was the beneficial owner thereof, right from the time the payment was made. Under the circumstances, the fact that there was no privity of contract between the insurer and the assessee and that there was an intervening agency can make no difference in the ultimate conclusion that the "transfer", even if it is treated as in favour of the insurer, is covered by section 45 read with section 2(47). 35. The Tribunal felt some difficulty, however, in reaching this conclusion because it thought that M/s. Jasmine Mills Pvt. Ltd. was under a legal obligation to take proper care of the machinery which it had taken on hire from the assessee and that since the machinery was destroyed on account of fire which occurred in its premises, it was bound to make good the loss to the assessee and, therefore, the payment was made to the assessee not as a result of the extinguishment of its rights in the machinery but for the satisfaction of a distinct liability which arose under the law of bailment. This aspect was emphasised before us on behalf of the assessee also and it was urged : (i) that under sections 151 and 152 of the C....
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....there was any clause in the contract of hire as a result of which the bailee had contracted himself out of the obligation imposed by section 151. In our opinion, therefore, this assumption, namely, that the payment was necessarily received by the assessee in discharge of an independent liability and not on account of extinguishment of the assessee's rights in the machinery is, in the absence of relevant factual data, misconceived in law. 36. There is also another way in which the matter can be looked at. Section 148 of the Indian Contract Act, 1872, in so far as it is relevant, provides that a "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. Section 151 enacts that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Under section 152, the bailee, in the absence of any special contract, is not responsib....
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....however, that the policy insured the bailee in respect only of his own loss or personal liability, the insurer could not have paid any money under the policy to indemnify M/s. Jasmine Mills Pvt. Ltd. unless a claim for damages was made by the assessee and it was adjudicated upon or settled and payment was made in consequence thereof to the assessee. Such is not the course of events here. In view of the circumstances abovementioned also, the conclusion is inevitable that it cannot be deduced as a matter of necessary legal inference that the payment in question was made in discharge of any other independent liability or satisfaction of a distinct right. 37. It would thus appear that even assuming without deciding that profit arising from the settlement or adjudication of a claim for damages against the bailee in the event of loss or destruction of the thing bailed would not be exigible to capital gains because it could not be said to have arisen from the extinguishment of the assessee's rights in the asset but on account of the satisfaction or working out of some distinct right, namely, the owner's right under law or contract to be compensated for the loss or destruction o....
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....ok the view that the surplus in the hands of the assessee did not arise from the relinquishment of any capital asset or from the extinguishment of any rights therein and that there was, therefore, no capital gain chargeable to tax under section 45. An alternative finding, with which we are not concerned in this case, was also given. The matter was brought to this court by way of reference by the revenue and the only contention raised on its behalf was that the transaction in question was "the extinguishment of any rights therein" within the meaning of section 2(47) and that the surplus was taxable as capital gains under section 45. It is in this context that the question as to the true connotation of the words "the extinguishment of any rights therein" arose in that case. 40. The court first ascertained the nature of the capital asset in that case, namely, a share and observed that (See [1971] 82 ITR 194, 199) : "...it is in its true nature what the English law calls, a chose-in-action, which entitles its owner to certain rights in action as distinguished from rights in possession." 41. It was then pointed out that a share represents the interest of the shareholder i....
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....y him ; it is rather because moneys representing his share in the distribution are received by him that his rights in the share are extinguished." 43. In this view of the matter, it was there held that when a shareholder receives his share on final distribution of the net assets of the company in liquidation, there is no transfer of capital asset by him which would attract the charge of capital gains. 44. In Mohanbhai Pamabhai's case [1973] 91 ITR 393 (Guj) the assessees and seven other persons carried on business in partnership but, as a result of some disputes, the assessee retired from the firm leaving the other seven as continuing partners of the firm. According to the terms and conditions of retirement, which were recorded in a document, each assessee received a certain amount in respect of his share in the partnership and this amount was worked out by taking the proportionate value of his share in the net partnership assets after deduction of liabilities and prior charges. The amount so received included, in its break-up, an amount representing his proportionate share in the value of the goodwill, which constituted one of the assets of the partnership. It is this la....
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....tnership assets by the retiring partner to the continuing partners .......We must, therefore, hold it to be clear beyond doubt that, even if goodwill be assumed to be capital asset within the charging provision enacted in section 45, there was, in the present case, no transfer of interest of any assessee in the goodwill within the meaning of section 2(47) when the assessee retired from the firm. Each assessee, undoubtedly, received certain amount on retirement, but this amount represented his share in the net partnership assets after deduction of liabilities and prior charges and it was received in satisfaction of his share in the partnership ; each of them realised his share in the partnership when the amount coming to is are was paid over to him." 45. The decision was, however, not rested on this point alone and an alternative finding was also given, proceeding on the assumption that when a partner retires from the partnership his interest in the partnership assets is extinguished and there was, therefore, in that case "transfer" of interest of each of the assessees in the goodwill when the assessee retired from the firm. In that context reference was made to R. M. Amin's ....
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....to believe that the amount which the assessee received from M/s. Jasmine Mills Pvt. Ltd. was paid to it in satisfaction or working out of its right, if any, to recover damages under law or contract, for the loss or damage caused to the machinery. The situation in this case is, therefore, not at all comparable with that obtaining in those two cases, where, admittedly, moneys were received in realisation of or working out of rights which inhered in the concerned assessee in his capacity as a shareholder in one-case and as a partner in the other. In the next place, the alleged right, if any, of the assessee to recover damages, as found earlier, was not an absolute statutory right but one which was subject to a contract to the contrary and, even if there was no such contract, it was merely an inchoate or contingent right in respect of which some investigation or legal proceeding and settlement or adjudication would be necessary for its satisfaction or fulfilment. In those two cases, on the other hand, there was a crystallised and unqualified right in the concerned assessee from the very day the share was acquired or partnership came into existence to share in the distribution of the ne....
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....e assessee; (4) the assessee, therefore, was under an obligation to purchase new machinery and had in fact done so ; and (5) the moneys having been received and utilised for replacement of capital asset, the transaction was not covered within the ambit of section 45. 49. The whole of this argument, in our opinion, is legally misconceived and has no foundation in fact. In the first place, M/s. Jasmine Mills Pvt. Ltd. had an insurable interest in the assessee's machinery as bailees and they must be taken to have insured the machinery in exercise of such right. There is nothing to show that they were at any time constituted the agents of the assessee and there is no place here for the introduction of a presumption that they must have acted as agents while insuring and receiving insurance money. Secondly, a reinstatement clause in an insurance policy does no more than confer upon the insurer the option of making good the loss by reinstatement, that is to say, by replacing what is lost or repairing what is damaged. The contract contained in the policy, nevertheless, remains a contract to pay a sum of money, subject to the right of the insurer, if he thinks fit, ....