High Court Of Bombay
Accra Investments (P.) Ltd. Vs. ITO, Range -3(1)(1)
Assessment Year : 2006-07
Section : 45, 28(i)
Mohit S. Shah, Cj. And M.S. Sanklecha, J.
IT Appeal No. 953 Of 2012
September  6, 2013
JUDGMENT
M.S. Sanklecha, J. – This appeal under Section 260A of the Income Tax Act, 1961 (“the Act”) from the order dated 25 April 2012 of the Income Tax Appellate Tribunal (“the Tribunal”) relates to assessment year 2006-07.
2. On 25 September 2012 this appeal was admitted on the following substantial questions of law:—
| “1. | Whether on the facts and in the circumstances of the case and in law, an investment made in the shares of a private limited company for purposes of acquiring control over the business conducted by it, can be said to be stock-in-trade and not a capital asset especially when the shares were not freely transferable and were held by the assessee for 31 months? |
| 2. | Whether on the facts and in the circumstances of the case and in law, the Tribunal’s finding that the appellant had purchased the shares of Millennium Alcobev Pvt. Ltd. with the object of trading in them and not to hold as a capital asset is perverse and such that no person reasonably instructed as to the facts and the law could come to?” |
3. While this appeal was pending, the appellant took out a notice of motion being Notice of Motion No.2189 of 2012 seeking a stay on the recovery of the disputed tax and interest, payable consequent to the impugned order dated 25 April 2012. This Court by order dated 15 January 2013 disposed of the above notice of motion staying the recovery of the disputed tax and interest till the appellant’s Miscellaneous Application filed under Section 254(2) of the Act was disposed of by the Tribunal.
4. On 10 May 2013, the Miscellaneous Application filed by the appellant under Section 254(2) of the Act was dismissed by the Tribunal. The appellant thereafter amended the present appeal and also challenged the order dated 10 May 2013 dismissing the Miscellaneous Application. However, no substantial questions of law have been raised by the appellant as arising out of the order dated 10 May 2013 on its Miscellaneous Application.
5. While amending its memorandum of appeal the appellant took out another notice of motion being Notice of Motion Lodging No.1135 of 2013 seeking stay of recovery of disputed tax and interest aggregating to Rs.6.46 crores till the disposal of the appeal. When this second notice of motion came up for hearing, Counsel for both the sides requested that the appeal itself be taken up for hearing as the controversy is within a narrow compass viz. whether the profit made on sale of shares by the appellant was chargeable to tax under the head of capital gains or under the head of profits and gains of business. We acceded to the joint request of the Counsel, heard the appeal and are finally disposing the appeal by this order.
6. Brief facts leading to this appeal are as under:—
| (a) | The appellant assessee is a private limited company inter alia engaged in the business of investments having dividend, interest and capital gains as its sources of income 99.99% of the appellant’s share holding is held by one Mr. R. K. Jain. |
| (b) | For the assessment year 2006-07, the appellant assessee had declared long term capital gains at Rs.9,64,26,643/-after indexation arising from sale of 30,70,000 shares in one M/s. Millennium Alcobev Private Limited (“M/s. MABL”) an unlisted company. The above shares were sold by the appellant to the other two shareholders of M/s. MABL i.e. M/s. Scottish & Newcastle (S&N) and United Breviaries Ltd. (UB). The appellant in its return of income claimed benefit of deduction of the entire capital gains as the same was invested in specified bonds under Section 54EC of the Act. The appellant had invested a sum of Rs.6,54,28,660/- in M/s. MABL in the assessment year 2004-05 (May 2003) and sold it for Rs.16,66,60,000/- during the assessment year 2006-07 (December 2005). |
| (c) | During the course of assessment proceedings, it was noticed that M/s. MABL is a private limited company engaged in the business of brewing and distribution of beer in India, Bhutan and Nepal. M/s. MABL was having manufacturing facilities spread over all over the country. On 16 May 2002 two agreements namely Subscription agreement and Shareholders Agreement were entered between S&N, UB and the appellant inter alia laying down the ground rules of their inter se relationship as the only shareholders of M/s. MABL. The above Shareholders agreement include the right of the appellant to be appointed Manager of M/s. MABL. Pursuant to the above agreements all the above three shareholders contributed by subscription to the share capital of M/s. MABL in May 2003 i.e. assessment year 2004-05. The contribution of S&N and UB was by subscribing to 40% of the issued equity share of M/s. MABL at share price of Rs. 87.95 per share and Rs. 35.83 per share respectively while the appellant subscribed to 20% of the issued equity shares of M/s. MABL at a price of Rs. 21.30 per share. |
| (d) | The Assessing Officer by order dated 29 December 2009 held that the amounts earned on sale of shares by the appellant would be taxable under the head profit and gains of business and not under the head capital gains. This was after negating the appellant’s contention that they had subscribed to the shares in M/s. MABL as a strategic investment in an unlisted company. The Assessing officer held that the appellant was not an investor in shares as it had subscribed to the shares in May 2003 out of borrowed funds, which according to him no investor would do. Besides holding that the appellant had subscribed to 20% of the issued equity shares capital of M/s. MABL at the price of Rs. 21.30 per share even when the book value of the shares was almost Nil. This according to the Assessing Officer would also not be done by an investor. In the alternative the Assessing Officer held that the consideration received on sale of shares by the appellant was in the nature of compensation for termination of the appellant’s position as Manager of M/s. MABL. Therefore, the excess received on sale of the shares was consideration received by the appellant for termination/surrender of its management of M/s. MABL and therefore taxable under the head Business Income as provided in Section 28(ii) of the Act. Consequently, the Assessing Officer by order dated 29 December 2008 assessed the income of Rs.10,12,31,340/- arising on the sale of shares of M/s. MABL by the appellant- assessee to other two shareholders of M/s. MABL as business income. |
| (e) | Being aggrieved by the order dated 29 December 2008, the appellant preferred an appeal to Commissioner of Income Tax (Appeals) (CIT(A)). By order dated 29 July 2009 to CIT(A) while allowing the appeal of the appellant – assessee relied upon the Shareholders agreement and Subscription agreement both dated 16 May 2002 which regulated and restricted the sale of shares in M/s. MABL. The above agreements provided that the sale could only be by any one of the shareholders to any of the other two shareholders during the three year lock-in period and even thereafter all the three shareholders would continue to have a right of preemption if any of the other shareholders sought to disinvest/sell its shareholding or part thereof. Further the CIT(A) also held that Shareholders agreement dated 16 May 2002 provided that the appellant would be the Manager of M/s. MABL. On all the above facts it was concluded that the subscription to the shares of M/s. MABL made by the appellant was with intent to running the business of M/s. MABL as a Manager and make it dividend paying company. In any event the CIT(A) also held that the issue arising in the present appeal is covered in favour of the appellant-assessee by the decision of the Apex Court in Ramnarain Sons (P.) Ltd. v. CIT [1961] 41 ITR 534 when purchase of shares in excess of market price with object of acquiring managing agency was held to be a capital asset and not stock in trade. So far as borrowed funds was concerned the CIT(A) was held that amount was borrowed from an outside party for a short span of 12 days and the same was without any interest only as a mode of bridge financing. Therefore, the subscription to the shares of M/s. MABL by borrowing of funds was not with a view to leveraging finance but with an intent to hold the shares. In the result, CIT (A) concluded that the intention of the assessee while investing Rs.6.54 crores at Rs.21.30 per share for acquiring 20% shares of M/s. MABL was not with an intention to trade in shares but to acquire the management in M/s. MABL. So far as the application of Section 28(ii) of the Act to the present facts is concerned the CIT(A) held that the amount received on sale of shares is not an amount received on surrendering its right to manage M/s. MABL. Therefore, application of Section 28(ii) of the Act to the present facts is not legally tenable. In these circumstances, the CIT(A) by order dated 29 July 2009 allowed the appellant-assessee’s appeal before it. |
| (f) | Being aggrieved by the order dated 29 July 2009 the revenue filed an appeal to the Tribunal. The Tribunal by its order dated 25 April 2012 allowed the revenue’s appeal holding that the amounts earned on sale of shares is to be brought to tax under the head business income and not under the head capital gains. The basis of arriving at the above conclusion was as under:- |
| (i) | In 2003, when the appellant invested/subscribed to the shares of M/s. MABL having face value of Rs.10/- of which the book value was Nil, yet the appellant-assessee had subscribed to 20% share holding in M/s. MABL at the rate of Rs.21.30 per share. Thus, the Tribunal concluded that no investor would purchase share at such high price when there is no return in the offing. Further, shares were purchased/subscribed to from borrowed funds and no investor would purchase shares of loss making company out of borrowed funds when there is no likelihood of earning any dividend income. Consequently, the purchase of shares had only been made with a view to make profits on resale of shares. |
| (ii) | In the shareholders agreement the appellant assessee is described as a Manager because day to day management was entrusted to Mr. R.K. Jain who was also the Managing Director of the appellant and that there is nothing in the shareholders agreement or subscription agreement to indicate that acquisition of 20% share holding in M/s. MABL was condition precedent for the appellant acquiring right to manage M/s. MABL. Alternatively, the share holders agreement provided that the Managing Director will exercise his authority in consultation with the executive committee. Therefore, the appellant assessee did not have any management rights in M/s. MABL. Consequently the subscription to 20% shares of M/s. MABL was not to acquire right to manage M/s. MABL. |
| (iii) | The decision of the Apex Court in Ramnarain Sons (P.) Ltd.’s case (supra) is inapplicable for the reason that in that case investment for purchase of shares was made at price higher than the market price so as to acquire managing agency rights of the company. It was in view of the above fact that the subsequent loss on sale of shares so acquired, the Apex Court held the loss to be capital loss. In the present case, the shares purchased by the appellant assessee does not give the appellant any controlling interest/rights in M/s. MABL Therefore, there is no justification to purchase at so high a price. Thus, by its order dated 25 April 2008 the Tribunal concluded that subscription to shares of M/s. MABL by the appellant was only with the intention to make profit from resale of the shares. Therefore, any profit arising therefrom was chargeable to tax under the head profit and gains of business and not under the head capital gains. |
7. Being aggrieved by the order dated 25 April 2012 of Tribunal the appellant assessee is in appeal before us on the two substantial questions of law referred to hereinabove.
8. Mr. J. D. Mistri, learned Senior Counsel in support of the appeal submits as under:—
| (i) | The issue arising in the present case is concluded in favour of the appellant by the decision of the Apex Court in the matter of Ramnarain Sons (P.) Ltd.’s case (supra). The distinction made by the Tribunal in the impugned order that in this case no managing agency right was acquired, failing to appreciate that right to manage M/s. MABL was acquired by subscribing to 20% of shares of M/s. MABL. Thus, in view of the Apex Court order Ramnarain Sons (P.) Ltd.’s case (supra), the appeal be allowed; |
| (ii) | The finding of the Tribunal in the impugned order that M/s. MABL had accumulated losses and its book value being Nil, no investor will purchase shares at such a high price when no dividend is likely to be declared in the foreseeable future, is perverse. The investor in this case was not a passive investor, but an investor with right to manage, who could perceive a potential in M/s. MABL leading to its investment. In fact it is stated that investors like Warren Buffet invest in companies having losses in which they see potential and hold shares in them for a fairly long time. Such purchase of shares is in the nature of investments. Therefore, only in view of the fact that the appellant had purchased the shares at a higher price then its book value would not by itself result in the investment made in shares becoming an activity of trading in shares. |
| (iii) | Moreover, the impugned order of the Tribunal completely over looked the fact that the appellant had subscribed to 20% of the shares of M/s. MABL at Rs. 21.30 per share while the other partners in the venture i.e. UB had acquired 40% at the price of Rs. 35.83 per share while S&N had acquired 40% interest at Rs. 87.95 per share. Thus people in the liquor industry could appreciate that given the M/s. MABL’s business model it had potential to be a successful business venture in the long run. |
| (iv) | The impugned order of the Tribunal records a perverse finding that no person would make an investment with borrowed funds. In this case the share subscription money was sourced by the appellant from M/s. Feedback Computers Ltd. which was a company belonging to the same group and one Mr. R. K. Jain Managing Director of the appellant also had substantial share holding 89.93% in M/s. Feedback Computers Ltd. The funding from outside was only for a period of 12 days and the same was without interest. |
| (v) | The impugned order of the Tribunal completely misreads the shareholders agreement dated 16 May 2002 which provides that the appellant would be the Manager of M/s. MABL and would have a right to nominate the Managing Director of M/s. MABL. This right was dependent upon the Subscription agreement dated 16 May 2002 between the same parties as is reflected in the preamble recital at Clause (D) and (E) of the Shareholders Agreement. It is in these circumstances the appellant invested in aggregate sum of Rs.6.54 crores on 7 May 2003 in M/s. MABL. Consequently, the acquisition of 20% share holding was a necessary condition to give the appellant management rights of M/s. MABL. The Tribunal incorrectly holds in the impugned order that as the appellant has to exercise its authority as Manager in consultation with others as provided in the Subscription agreement, the appellant company did not have any rights to manage M/s. MABL. This finding of the Tribunal is perverse as no Manager ever enjoys absolute/unbridled rights while managing a corporate enterprise. |
9. As against the above Mr. A. R. Malhotra, learned Counsel for the revenue in support of the impugned order submits as under:
| (i) | The impugned order of the Tribunal calls for no interference as the decision of the Apex Court in Ramnarain Sons (P.) Ltd.’s case (supra) is not applicable to the present facts. This is in view of the fact that in the case of Ramnarain Sons (P.) Ltd. (supra) the appellant had acquired control of the managing agency by virtue of purchase of shares at a price higher than the market value, while this case 20% acquisition of equity shares of M/s. MABL does not give the appellant controlling interest in M/s. MABL and therefore, the aforesaid decision is inapplicable. |
| (ii) | During the course of the hearing before the Tribunal the appellant has not pointed out the fact that the shares had been subscribed to by the other two partners namely UB and S&N at Rs. 39.85 per share and Rs. 89.95 per share respectively. Therefore, the Tribunal has had no occasion to consider this issue. Consequently the appellant is barred from relying upon the price at which other shareholders have subscribed to the shares of M/s. MABL in support of its contention that the price at which the appellant subscribed to the shares of M/s. MABL was more than justified. |
| (iii) | In any case, merely having the information tucked away in the appeal papers would not amount to disclosing those facts before the Tribunal. In support he draws attention to Explanation 1 to Section 147 of the Act which provides that production of accounts books before the Assessing Officer would not amount to disclosure before the Assessing Officer. It is therefore, submitted that the mere fact that share Subscription agreement as well Shareholders agreement both dated 16 May 2002 are a part of the proceeding before the Tribunal would not by itself lead to the conclusion that the shares subscribed at higher price by the others was noticed by the Tribunal. |
| (iv) | The impugned order has not held that the assessee was trader in shares. All that the Tribunal has held that the transaction was an adventure in nature of trade and therefore cannot be charged to tax under the head capital gains. |
In view of the above, he submits that the impugned order of the Tribunal calls for no interference.
10. We have considered the submissions. We find that the issue with regard to Section 28(ii) of the Act which was taken as an alternative by the Assessing Officer in his order dated 29 December 2008 was not canvassed during the hearing before the Tribunal by the revenue after the CIT(Appeals) had held that Section 28(ii) of the Act would have no application to the present facts. Thus, the Tribunal in the impugned order has rendered no finding with regard to applicability of Section 28(ii) of the Act to the transaction under consideration nor has the respondent revenue placed reliance upon Section 28(ii) of the Act, before us, to support the impugned order of the Tribunal. In the circumstances the only issue which is being considered by us is: whether the subscription to 20% of the issued equity shares of M/s. MABL and subsequent sale thereof resulting in gain was in the nature of capital gains or in the nature of business income.
11. So far as question No.1 is concerned we find that the facts in the matter of Ramnarain Sons (P.) Ltd.’s case (supra) before the Apex Court were similar to the facts arising in the present case. In the matter of Ramnarain Sons (P.) Ltd.’s case (supra) the Apex Court was concerned with the issue whether acquisition of shares in Dawn Mills Company Limited at a price higher than the market price for acquisition of it managing agency was a capital asset. The issue arose in the context of whether the sale of some of those acquired shares subsequently at a loss was a revenue loss or capital loss. In the above context, the nature of acquisition was considered by the Apex Court. In the above case, market price of shares of Dawn Mills was Rs. 1610/- while the appellant had purchased them at the rate of Rs. 2321/-per share. It was a assessee’s contention before the Supreme Court that the purchase of shares which led to the acquisition of managing agency was in the nature of carrying on trade in the shares and the subsequent sale of such shares or part thereof should is a revenue loss. The Apex Court negatived the assessee’s contention and held that the shares of Dawn Mills were purchased for the purpose of acquiring its managing agency. The fact that the Managing agency could be utilized for earning profit could not lead to the conclusion that shares so purchased were on revenue account in the absence of any intent to trade in those shares. The Apex Court did not accept the assessee’s submission that in view of being able to manage Dawn Mills, the purchase of shares should be held to be an adventure in nature of trade. The Apex Court also held that even though the shares had been purchased with borrowed money, that fact by itself, would not indicate that there was any intent to trade in those shares. The fact that shares were purchased at a price higher than what may be done by a prudent person is explained by the fact that it resulted in acquisition of managing agency. This would certainly lead to an inevitable conclusion that the intention in purchasing the shares was not to trade in the shares but for the purpose of obtaining managing agency of the Dawn Mills.
12. In the present facts also the appellant had subscribed to 20% of the issued equity share capital of M/s. MABL. This 20% share holding read in the light of the Shareholders agreement and Subscription agreement both dated 16 May 2002 would lead to the conclusion that the subscription for the 20% share holding was for the purpose of being able to manage/nominate the Manager of M/s. MABL. Thus, in the present case the assessee by purchasing the shares also acquired the right to manage M/s. MABL and in the absence of any other evidence to indicate that there was an intent on the part of the appellant to deal in the shares the only conclusion would be that the entire transaction of purchase and sale by the appellant was on capital account. The distinction sought to be made by the revenue to the effect that in Ramnarain Sons (P.) Ltd.’s case (supra) the Apex Court was concerned with the assessee acquiring a managing agency i.e. controlling interest in Dawn Mills Ltd. which is not the case here is a distinction without any difference. This is for the reason that by subscribing to 20% issued equity shares in M/s. MABL the appellant became entitled to manage M/s. MABL. Therefore, the acquisition here also was for being able to manage M/s. MABL as was also the case before the Supreme Court.
13. Moreover, the subscription of 20% shares in M/s. MABL subscribed to by the appellant were not freely transferable but regulated and restricted by the shareholders agreement dated 16 May 2002. In view of the above agreement dated 16 May 2002 there was a three years lock-in period in respect of the subscribed share capital and the appellant could not sell the same during that period. In case the appellant had to sell during three years lock in period the sale was restricted only to the other two parties to the shareholders agreement. Moreover, even after the three year lock in period was over, the other two parties to the agreement continue to have right of preemption in respect of the appellant’s shareholding. In view of the aforesaid restriction and prohibition the person who subscribes to such shares would not do so for the purpose of trading in it as the transferability of the shares is very restricted making it a most unsuitable instrument for purposes of trading. Further the fact that the appellant held shares for almost 31 months before selling them is another factor to indicate that these shares were not subscribed to by the appellant for the purpose of trading in them. In the matter of Ramnarain Sons (P.) Ltd.’s case (supra) also the shares had been purchased out of borrowed funds and yet the Apex Court held that the same would not by itself indicate/evidence an intent to deal in shares. In this case the appellant had borrowed funds from outside for a period of 12 days without interest. Thereafter, the amounts were sourced from its sister company M/s. Feedback Computers Ltd. in which the appellant’s 99.99 shareholder one Mr. R.K. Jain enjoyed majority interest to the extent of 83.93% shareholding. Thus the borrowing of funds even in this case is not evidence of the appellant, wanting to trade in the subscribed shares of M/s. MABL.
14. Therefore, taking all the cumulative factors including the decision of the Supreme Court in Ramnarain Sons (P.) Ltd.’s case (supra) the impugned order was incorrect in holding that 20% shares of M/s. MABL subscribed to by the appellant was stock in trade of the appellant and not its capital asset, as contended by the revenue.
15. So far as question No.2 is concerned, the impugned order proceeds on the basis that 20% of the equity shares, which were subscribed to by the appellant in M/s. MABL at a price much higher than its book value which was Nil and out of borrowed funds would by itself indicate that the subscription made by the appellant was not as an investment but as a trader in shares. This finding of the Tribunal is perverse for the reason that purchase of shares at a price higher than book value cannot be itself lead to the conclusion that the purchase was not in the nature of investment. It is a well known global phenomena that investors purchase shares of loss making companies because in their perception the company has inherent potential to do well either on account of its business model or on account of the management of the company. The potential perception is unique to each investor and there cannot be any universal yard stick to determine whether such perception was justified or not. In any case the other two subscribers in the shares of M/s. MABL had subscribed at the price of Rs.87.95 per share (S&N) and Rs.35.83 per share (UB) itself evidences the fact that others had also perceived great investment opportunity in the business of M/s. MABL The submission on behalf of the revenue that this particular argument with regard to investment being made by other two subscribers at a higher price was not brought to the notice of the Tribunal during the hearing, though not disputing that the same was part of the record and proceeding before the Tribunal. The analogy drawn on the basis of the explanation under Section 147 of the Act may not be a proper analogy. In any view of the matter, it is not necessary to resolve the above issue as the respondent revenue do not deny/dispute before us that the shares were subscribed to by S&N at Rs.87.95 per share and by UB at Rs.35.83 per share. Therefore, the fact that other share holders have subscribed at higher price is an undisputed position. This would also establish that perception of the potential of the M/s. MABL on the part of the appellant was not solitary and unique. To our mind even if the perception of the appellant was solitary and unique, it would make no difference.
16. Be that as it may, even if the price at which the shares were subscribed to were higher than its book value that again by itself would not lead to the conclusion that in such cases purchase has been done not by investor in share but by trader in shares. On the contrary the investor in shares would in the normal course hold shares for a longer period of time even in liquor business (though not affected by business cycle prevailing in most of the industries) as time would be taken to establish a place in the market. Therefore, the scrip may become profitable over a period of time. In contrast a trader in shares normally holds shares for a shorter period of time and looks for quick returns. In such circumstances, he is less likely to purchase share at price higher than the market value and in case of unquoted shares at a price higher than its book value. Therefore, test applied by the Tribunal in the impugned order to hold that subscription of 20% shares in M/s. MABL at a higher price then the book value of the equity shares to conclude that the appellant is a trader, is perverse.
17. Similarly the finding in the impugned order that because the shares were subscribed to by the appellant from borrowed funds the subscription/ purchase of shares cannot be said to be an investment, is perverse. In the facts of this case, the appellant had borrowed funds from an outside source (that is not from group companies) only for a period of 12 days without interest. Thereafter, the appellant had sourced its funds by subscription of its shares by its group company one Feedback Computers Ltd. in which substantial share holder to the extent of 83.93% was one Mr. R.K. Jain who holds 99.99% shares in the appellant company. Moreover, whether or not a particular purchase/subscription to shares was for the purpose of doing business or for purpose of investment cannot be determined on the basis of whether the amount required for the purchase of the same was borrowed or self generated funds. It is well known that capital assets, at times are acquired out of borrowed funds and the distinction between capital assets and stock in trade is not on the basis of source of funds i.e. borrowed funds or self generated funds but on the basis of assets itself and for the period for which it is held before the same is traded/sold. Thus, the finding of the Tribunal that the subscription to the extent to 20% in the equity shares of M/s. MABL was for trading in shares because the payment was not out of its own funds, is perverse.
18. Similarly, the impugned order holds that though the appellant had right to appoint its nominee as a Manager of M/s. MABL yet the nominee could not exercise authority as a Manager on his own but had to do so in consultation with others and therefore was not the Manager. Consequently, the conclusion by the Tribunal that no amount was paid while subscribing for the shares to enjoy the rights of Manager of M/s. MABL. Merely because the appellant’s nominee acts as Managing Director of M/s. MABL and such function of Managing Director as a Manager has to be discharged in consultation with others does not denude the Manager of its authority and function as a Manager. It is axiomatic that no Manager in any field of business activity enjoys on absolute and unfettered rights to manage his business without having to consult others. Therefore, the finding in the impugned order that because the appellant nominee has no absolute right to manage M/s. MABL as it desires, it must follow that the appellant has no right as a Manager of M/s. MABL, is perverse.
19. We shall now answer the two substantial questions of law which were admitted for our consideration as under:—
Question No.1 – In the negative i.e. in favour of the appellant – assessee and against the revenue.
Question No.2 – In the affirmative i.e. in favour of the appellant – assessee and against the revenue.
20. Accordingly, the appeal is allowed. No order as to costs.
21. As the main appeal is allowed, the Notice of Motion No.1135 of 2013 for stay of recovery of the disputed tax does not survive and the same is also disposed of.
[Citation :Â 359 ITR 116]
