Karnataka H.C : Not treating the income offered as capital gains as capital receipts on the facts and circumstances of the case

High Court Of Karnataka

Karnataka Instrade Corporation Ltd. vs. ACIT

Assessment Year : 2004-05

Section : 45

D.V. Shylendra Kumar And H.S. Kempanna, JJ.

IT Appeal No. 415 Of 2010

January 18, 2012


D.V. Shylendra Kumar, J. – The appeal under section 260A of the Income-tax Act, 1961 (for short, “the Act”) by an assessee, a public limited company registered under the provisions of the Companies Act, 1956, seeking to raise the following substantial questions of law for our examination in this appeal :

“1. Whether the Tribunal was justified in law in not treating the income of Rs. 11,15,44,005 being offered as capital gains as capital receipts on the facts and circumstances of the case ?

2. Whether the Tribunal was justified in law in not passing a speaking order in relation to the contention of the appellant regarding the issue of capital receipt on the facts and circumstance of the case ?

3. Whether the Tribunal was justified in law in not holding that consent cannot confer jurisdiction and a mere admission cannot be held against the appellant ?”

as questions that arise from out of the order dated July 21, 2008, passed by the Income tax Appellate Tribunal, Bangalore Bench in I.T.A. No. 856/ Bang/2008.

2. In respect of the assessment year 2004-05, the assessee had filed its return of income and had, amongst others, offered an income of Rs. 11,15,44,005 as capital gains. The assessee-company, it was claimed, was a sick company and had kept its manufacturing activity only to meet certain commitments and otherwise was dormant.

3. In so far as the present appeal is concerned, the dispute is only relating to the income attributable to capital gain as had been revealed by the assessee in its return of income. The assessing authority finalized the assessment on such premise, but found occasion to add back certain other sums under some other heads, etc., and arrived at the taxable income as Rs. 5,02,09,941 and raised a demand and also directed initiation of penalty proceedings under section 271(1)(c) of the Act separately.

4. The assessee was in appeal, inter alia, contending that out of Rs. 11,15,44,005 as capital gain as has been declared by the assessee in its income-tax return, while only a sum of Rs. 31,60,000 was assessable to tax being attributable to transfer of some capital assets, the balance sum of Rs. 10,83,84,005 could not be assessed as income attributable to capital gain, as the amount had been transferred to capital reserve account even in terms of the note appended to the return.

5. However, this ground did not find favour with the appellate authority, which opined that though the ground is considered, having regard to the fact that that the assessee had voluntarily shown the amount as capital gain and also had claimed a loss of Rs. 5,17,69,775 and the assessing authority having accepted the return as filed, but having added back certain deductions which were not allowable, the ground cannot be sustained and, therefore, dismissed the appeal on this aspect.

6. The assessee appealed further to the Income-tax Appellate Tribunal. The Tribunal also found that the assessing authority had in no way altered or disallowed the claim of the assessee in so far as it mentioned in the return of income relating to capital gain and if the version of the assessee in terms of its return had been accepted and if the assessing authority had finalized the same, the assessee cannot make a grievance out of such a situation and seek for relief in appeal, etc., and opined that the assessee’s contention was not tenable and to be rejected. However, the Tribunal also found support to its view from the judgment of the Supreme Court in the case of CIT v. Shelly Products [2003] 261 ITR 367/129 Taxman 271 and, therefore, dismissed the appeal of the assessee.

7. It is in this background, the assessee is before this court and has sought to raise the substantial questions of law as indicated above arising from the order of the Tribunal.

8. Appearing on behalf of the appellant-assessee, the submission of Sri A. Shankar, learned counsel is that both the Appellate Commissioner and the Tribunal have committed a mistake in not examining the case of the assessee that the entire amount of capital gain, though has been offered so in the return of income, was not taxable as income ; that it did not represent capital gain which was taxable ; that some part of if taxable as had been offered by the assessee itself but the amount that had been transferred to the capital reserve was not an amount which was, per se taxable as capital gain ; that though the assessee raised this contention not only before the Appellate Commissioner but also before the Appellate Tribunal, neither have examined this question and, therefore, the matter merits examination on the aspect of the entire amount of Rs. 11,15,44,005 being treated as capital gain, in the sense, whether it is the taxable income or only a part of it and, therefore, urges the matter to be remanded to the authorities below for examination of this aspect.

9. Sri Shankar also submits that the reliance placed by the Tribunal on the decision of the Supreme Court in the case of Shelly Products (supra) is inapt ; that in fact the decision was more favourable to the assessee than to the Revenue and, therefore, the order of the Tribunal cannot be sustained for the view that the Tribunal has on the strength of this decision of the Supreme Court.

10. On the other hand, Sri Shankar has placed reliance on a judgment of a Division Bench of this court in the case of Bhandari Metals &anp; Alloys (P.) Ltd. v. State of Karnataka [2004] 136 STC 292, which in turn relied upon an earlier decision of a Division Bench of this court in the case of Narsepalli Oil Mills v. State of Mysore [1973] 32 STC 599 to submit that there cannot be any estoppel against an assessee if an exemption or a deduction which the assessee is otherwise entitled to make in law had been wrongly omitted to be made or if the assessee had offered to tax certain turnover which was otherwise not taxable, to get necessary corrections made at the appeal stage, etc., and, therefore, submits that when the assessee had made a positive effort to seek correction of the assessment order in so far as it relates to the question of treating the entire capital gain as offered by the assessee to be taken as income of the assessee and to finalize the return, the appellate authorities were bound to examine this question, but having dismissed the appeals only on the principle of estoppel as the assessee had voluntarily offered, the judgment cannot be sustained, etc.

11. Sri Shankar also places reliance on yet another judgment of the Supreme Court in the case of CIT v. V. Mr. P. Firm, Muar [1965] 56 ITR 67 to submit that the principle of estoppel is one to be called in aid against the conduct of the parties and not against statutory provisions and, therefore, submits that taxability or otherwise of the amount as income is a question based on the statutory provision and not by mere concession or voluntary nature of disclosure and, therefore, submits that the matter requires adjudication, etc.

12. We find, in the instant case, that the return was filed by the assessee and the assessee disclosed a capital gain amount of Rs. 11,15,44,005. If at all a reservation or a caveat was put by the assessee, it was in the form of a footnote. We may at once make it clear that a footnote cannot guide or control a return which is filed by an assessee. A footnote if at all can be for the purpose of amplification or for further reference or any such thing, but not to indicate a stand contrary to the main thing.

13. Be that as it may, when the assessee filed its return of income, which is a statutory requirement, in fact statutory duty on the part of the assessee having income, the assessee is expected to make whole and true disclosure and when the assessee indicates that a particular amount as capital gain amount, but in the footnote indicates that it is merely transferred to capital reserve and, therefore, claimed not a taxable capital gain, the question is not really as is put forth by the assessee during the course of the argument in this appeal.

14. Whether capital gain arises or not is, no doubt, a question statutorily regulated but is not further conditioned or regulated as to in what manner the assessee treats a capital receipt and in what manner the assessee further makes use of the receipt, whether it is transferred to capital reserve or deployed as capital investment or utilizes in any other manner that does not control the amount becoming capital gain.

15. In this background, if the assessee had not made good as to for what reasons and in what manner the amount cannot be treated as capital gain before the Appellate Commissioner or before the Tribunal but merely raised a ground that it is not per se capital gain, though offered, the assessee had failed in making good the ground and, therefore, cannot be said that the Tribunal committed a mistake in law in rejecting the ground urged by the assessee.

16. We find that the instant case was not one of a principle of estoppel being put against the assessee to deny any examination but it was a more a case of non-production of relevant material by the assessee which would have compelled the Tribunal or the Appellate Commissioner to examine and opine on that and merely raising a ground is not a substitute for material to make good the ground. It is the conspicuous absence of such material which left no choice for the Appellate Commissioner and the Tribunal to reject the ground.

17. We do not find the questions as posed having been examined and answered erroneously by the Tribunal in deciding the appeal. Therefore, while, we answer questions Nos. 1 and 2 in the affirmative and against the assessee, the third question does not really arise out of the order and, therefore, it is not answered.

18. In the result, this appeal is dismissed.

[Citation : 342 ITR 1]

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