{"id":232633,"date":"2005-09-19T00:00:00","date_gmt":"2005-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-george-williamson-assam-ltd-vs-commissioner-of-income-tax-on-19-september-2005"},"modified":"2018-02-13T20:40:46","modified_gmt":"2018-02-13T15:10:46","slug":"ms-george-williamson-assam-ltd-vs-commissioner-of-income-tax-on-19-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-george-williamson-assam-ltd-vs-commissioner-of-income-tax-on-19-september-2005","title":{"rendered":"M\/S George Williamson (Assam) Ltd vs Commissioner Of Income Tax, … on 19 September, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S George Williamson (Assam) Ltd vs Commissioner Of Income Tax, … on 19 September, 2005<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: Dr. Ar. Lakshmanan, P.P. Naolekar<\/div>\n
           CASE NO.:\nAppeal (civil)  6694-6698 of 2004\n\nPETITIONER:\nM\/s George Williamson (Assam) Ltd.             \t\t               \n\nRESPONDENT:\nCommissioner of Income Tax, Guwahati \t   \t\t\t  \n\nDATE OF JUDGMENT: 19\/09\/2005\n\nBENCH:\nDr. AR. Lakshmanan & P.P. Naolekar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
\tThe above appeals were filed against the judgment and order dated 17.07.2003
\npassed by the Division Bench of the Gauhati High Court whereby the Division Bench
\nallowed the appeal filed by the Commissioner of Income Tax being I.T. Appeal No. 6 of
\n2000 and reversed the order of the appellate tribunal dated 04.04.2000.\n<\/p>\n
The present case involves an important question of law with regard to the
\ninterpretation of Explanation 1 to Rule 2 of the Second Schedule to the Companies
\n(Profits) Surtax Act, 1964.\n<\/p>\n
The appellant company was formed mainly for the purpose of taking over the
\nIndian undertakings of several sterling tea companies operating in India.  These sterling
\ntea companies were registered in UK and were operating in India.  The acquisition of
\nthe Indian undertakings of the sterling tea companies was done in accordance with a
\nScheme of Arrangement under Sections 391 and 394 of the Companies Act.  The said
\nScheme of Arrangement was granted approval by the High Courts of Calcutta and
\nGauhati.  As per the Scheme of Arrangement, all the properties, rights and powers and
\nall liabilities of the sterling companies were transferred to and vested in the appellant
\nCompany.  The Reserve Bank of India was the designated authority for granting
\napproval for the price at which the undertakings including the assets were to be taken
\nover by the appellant.\n<\/p>\n
The Reserve Bank of India, by its letter No. EC.CO.FCS.3517\/T-117(Activity)\/79
\ndated June 26, 1979 accorded the aforesaid approval whereunder it permitted the
\nappellant to pay the aggregate lumpsum consideration at Rs. 490 lakhs.  Para 2 of the
\nsaid letter reads thus:\n<\/p>\n
“2. We are agreeable to your acquiring the entire business and undertakings
\nin India of (i) Attaree-khat Tea Company Attaree-khat Company Ltd., (ii)
\nBargang Tea Co. Ltd., (iii) Boroi Tea Co. Ltd., (iv) Corramore Tea Co. Ltd., (v)
\nKoomsong Tea Co. Ltd., (vi) Moabund Tea Co. Ltd., (vii) Rajmai Tea Co. Ltd.,\n<\/p>\n
(viii) Itakhooli Tea Co. Ltd., (ix) Tingri Tea Co. Ltd., (x) Bargang Tea Co. Ltd.,\n<\/p>\n
(xi) Borelli Tea Co. Ltd. and (xii) Rupajuli Tea Co. Ltd. (hereinafter referred to
\nas twelve sterling tea companies) with effect from the close of business as at
\n31st December, 1977 for a total consideration of Rs. 490 lakhs (Rupees Four
\nHundred Ninety lakhs only).  You also have our permission under section
\n19(1)(d) of the Foreign Exchange Regulation Act, 1973 to issue at par
\n21,61,000 and 2,89,000 equity shares of Rs.10\/- each of your company to
\nWilliamson Tea Holdings Ltd., U.K. and Borelli Tea Holdings Ltd., U.K.
\nrespectively, in part settlement of the consideration for the business and not
\nassets in India of the said twelve sterling tea companies to be taken over by
\nyou under the scheme of Indianisation.”\n<\/p>\n
As per paragraph 3(i) of the said letter, the Reserve Bank of India specifically
\ndirected the appellant that there shall not be any depletion in the net assets as on the
\nactual date of transfer of business from what was given in the balance sheets of the
\ntwelve sterling tea companies as on 31.12.1976.  Para 3(i) reads as follows:-
\n“There shall not be any depletion in the net assets as on the actual date of
\ntransfer of business from what was given in the balance sheets of the twelve
\nsterling tea companies as on 31st December, 1976 and an auditor’s certificate
\nto this effect shall be submitted to us after the formalities for transfer of
\nbusiness are completed.”\n<\/p>\n
As against the consideration of Rs.4,90,00,000\/- permitted by RBI to be paid by
\nthe appellant, the value of the net assets which was to be maintained by the appellant
\nas per the aforesaid requirement of RBI was Rs. 6,33,89,055\/- i.e. higher by Rs.
\n1,43,89,055\/- which was disclosed in the appellant company’s balance sheet as a
\nCapital Reserve as part of “other reserve”.\n<\/p>\n
In the assessment of the appellant company under the provisions of the
\nCompanies (Profits) Surtax Act, 1964, the question arose as to whether the said capital
\nreserve was to be included while computing the capital of the appellant company.  For
\nthe relevant years under appeal, Surtax was leviable under the said Act on chargeable
\nprofits of a year that exceeded the ‘statutory deduction’.  Statutory deduction was
\ndefined to mean an amount equal to 15% of the capital of the company as computed in
\naccordance with the provisions of the Second Schedule or an amount of Rs.2,00,000\/-
\nwhichever is greater.  Under the Second Schedule to the Act which provides for the
\nrules for computing the capital of a company for the purposes of Surtax, the capital of a
\ncompany is the aggregate of the following as on the first day of the previous year
\nrelevant to the assessment year\n<\/p>\n
1.\tPaid up Share Capital\n<\/p>\n
2.\tReserves created in accordance with the provisions of the Indian Income Tax
\nAct, 1922 and Income Tax Act, 1961.\n<\/p>\n
3.\tOther Reserves (as reduced by amounts credited to such reserves as have
\nbeen allowed as a deduction in computing the income of the company for the
\npurposes of the Income Tax Act, 1922 or the Income Tax Act, 1961.
\nExplanation 1 to Rule 2 of the Second Schedule to the said Act reads as under:
\n“Explanation 1  A paid up share capital or reserve brought into existence by
\ncreating or increasing (by revaluation or otherwise) any book asset is not capital
\nof a company for the purposes of this Act.”\n<\/p>\n
The Revenue treated the impugned reserve as being covered under the said
\nExplanation 1.   This contention is rejected by the Appellate Tribunal.  However,
\nthe stand of the Revenue has been upheld by the High Court.\n<\/p>\n
It was submitted by Mr. S.Ganesh, learned senior counsel for the appellant that
\nthe said Explanation 1 to Rule 2 operates only where the reserve in question was
\nbrought into existence by creating or increasing (by revaluation or otherwise) the value
\nof any book asset.  It was further contended that in the present case, the said
\nExplanation 1 has no application at all since the assets taken over by the appellant
\ncompany were all real and tangible assets and not book assets.  Further, it is to be
\nnoted that the said reserve was not created by the appellant company but arose due to
\nstatutory requirements in following the directions of the RBI.\n<\/p>\n
  The Income Tax Appellate Tribunal has, in its order, holding in favour of the
\nappellant, given the specific finding that the said reserve was not brought into existence
\nby creating or increasing the value of any book asset.  However, the High Court in its
\njudgment and order completely overlooked this specific and categorical finding of the
\nTribunal and has come to the conclusion that the said reserve is hit by the provision of
\nExplanation 1 to Rule 2.\n<\/p>\n
Mr. S. Ganesh, learned senior counsel for the appellant invited our attention to
\nthe judgment of this Court in Commissioner of Income Tax (Central), Calcutta vs.
\nStandard Vacuum Oil Co.<\/a> reported in [1966] 59 ITR 685 which, according to him,
\ndirectly and squarely covered in favour of the appellant and that the said judgment was
\nfollowed by the Tribunal in deciding the case in favour of the appellant.  However, even
\nthough strongly relied upon by the appellant before the High Court, the High Court has
\nnot dealt with the said judgment of this Court in its impugned judgment whereby the
\nHigh Court has reversed the order of the Tribunal and allowed the appeal of the
\nRevenue.  He also drew our attention to the findings of the Commissioner of Income
\nTax and also of the Income Tax Appellate Tribunal.\n<\/p>\n
Mr. Harish Chandra, learned senior counsel for the respondent submitted that
\nthe RBI permitted the assessee company to pay a lump-sum consideration of
\nRs.4,90,00,000\/- as against the book value of the assets at Rs. 6,33,89,055\/- and that
\nthe difference of Rs.1,43,89,055\/- between the approved consideration to be paid and
\nthe book value of the assets were shown by the company in its balance sheet as capital
\nreserve as part of other reserve.  He would further submit that the High Court has
\nelaborately interpreted the Explanation 1 of Rule 2 of Second Schedule of Surtax Act,
\n1964 and has held that the assessee company, in the instant case, acted on the net
\nvalue of its assets as appearing in the books of sterling tea companies resulting in
\ndifference between the book value and the consideration paid and by this exercise on
\nthe part of the assessee, the reserve equivalent to the short fall was brought into
\nexistence by the assessee.  Arguing further, the learned senior counsel submitted that
\nthe assets were valued by the RBI at a lower price considering the real status of the
\nassets which was the price fixed by the RBI and that the difference in the actual value
\nof the assets as determined by the RBI and book value is nothing but a reserve came
\ninto existence due to the valuation process which can be termed as revaluation of
\nassets.  According to the learned senior counsel, the judgment of Standard Vacuum
\nOil Co. (supra) is not identical with the assessee’s case as observed by the Assessing
\nOfficer.  Concluding his argument, he submitted that the High Court has correctly
\nobserved that the difference between the book value of assets and consideration paid
\nshown as other reserve could not be treated as capital for the purposes of Surtax
\nassessment and, therefore, there is nothing on law or on facts which warrants the
\nintervention of the judgment of this Court.\n<\/p>\n
In the above background of facts, the present appeals give rise to the following
\nquestions of law of public importance and of recurring nature which requires to be
\ndecided by us:-\n<\/p>\n
A.\tHas not the High Court misunderstood and has interpreted Explanation 1
\nto Rule 2 of the Second Schedule to the Companies (Profits) Surtax Act,
\n1964?\n<\/p>\n
B.\tCan Explanation 1 to Rule 2 of the Second Schedule to the said Act
\npossibly be considered to be attracted to the present case?
\nC.\tIs not the present case directly and squarely covered by the judgment of
\nthis Court in Commissioner of Income Tax (Central), Calcutta vs.
\nStandard Vacuum Oil Co.<\/a> reported in [1966] 59 ITR 685
\nWe have perused the said case of Standard Vacuum Oil Co. (supra). In that
\ncase, the assessee was a company incorporated with the object of taking over the
\nassets of certain other companies  Secony Vacuum Oil Co. and Standard Oil Co.  On
\nthe date of acquisition of the assets of these two companies, the book value thereof as
\nrecorded in their books of accounts was
\nSecony Vacuum Oil Co. \t$ 97,715,701\/-\n<\/p>\n
Standard Oil Co. \t\t$ 46,767,397\/-\n<\/p>\n
In consideration of transfer of these, the assessee company allotted to each
\ncompany 49,995 shares and to Secony Vacuum serial bonds of the value of $
\n13,093,300\/-.  The remaining 10 shares were divided equally between the two
\ntransferor companies for cash at par.  The assessee company entered in its books of
\naccount the book value of the assets so transferred over the par value of the stock
\nissued and the serial bonds were entered in the books under an account styled “Capital
\nPaid in Surplus”.  After some adjustments, the “Capital paid in Surplus” account was
\nreduced to $ 117,561,317\/-  and thereafter stood unchanged at that figure.  The
\nquestion which arose for consideration by this Court was whether the said sum
\nappearing in the balance sheet of the company under the head “Capital paid in Surplus”
\nconstituting the excess of the book value of the assets over the face value of the shares
\netc could be included in the capital base of the company.  It is also to be noted that the
\nabove case was under the provisions of the Business Profits Tax Act, 1947 which had
\nprovisions similar to the Companies (Profits) Surtax Act, 1964.  This Court was deciding
\nthe issue vis-`-vis the Explanation to Clause 2 of Schedule II of the said Act of 1947 (at
\npage 689)  which read as under:\n<\/p>\n
“Explanation.- A reserve or paid-up share capital brought into existence
\nby creating or increasing (by re-valuation or otherwise) any book asset
\nis not capital for the purposes of ascertaining the abatement under this
\nAct in respect of any chargeable accounting period.”\n<\/p>\n
It is to be noted that the provisions of the aforesaid Explanation and Explanation
\nI of the Second Schedule to the Act of 1964 are in pari materia and the relevant
\nportions are identical.\n<\/p>\n
This Court, in the above case, held at page 694as follows:-
\n“The Explanation to rule 2 has no relevance in the present case.  The
\ndifference between the assets received by the company and the par value of
\nthe shares issued cannot be called a book asset “brought into existence by
\ncreating or increasing (by re-valuation or otherwise)”.  The assets received by
\nthe assessee-company are real and tangible assets.”\n<\/p>\n
In this context, it is beneficial to refer to the specific finding of the Commissioner
\nof Income Tax (Appeals) which reads as under:-\n<\/p>\n
“Explanation 1 of Rule 2 of the Second Schedule of the Companies
\n(Profits) Surtax Act, 1964 relied upon by the A\/O reads as under:-\n<\/p>\n
“Explanation 1.  A paid-up share capital or reserve brought into
\nexistence by creating or increasing (by revaluation or otherwise) any
\nbook asset is not capital for computing the capital of a company for the
\npurposes of this Act.”\n<\/p>\n
The A\/O has noticed the words “brought into existence” without
\nnoticing the further words “by creating or increasing (by valuation or
\notherwise) any book asset”.  The appellant company in this case did not
\ncreate or increase any book asset at all as evident from the account.  As
\nhas already been stated the appellant took over all the existing assets
\nand liabilities of the erstwhile sterling tea companies at their book values
\nand incorporated them in its books of account which necessitated the
\ncreation of capital reserve as the consideration received fell short of the
\nnet worth of the businesses taken over by a consideration of
\nRs.1,43,89,055\/-.  In my view the A\/O erred in holding that the capital
\nreserve of Rs.1,43,89,055\/- was not includible in the appellant’s capital
\nfor sur-tax purposes by virtue of Explanation 1 of Rule 2 of the second
\nschedule of the Companies (Profits) Surtax Act, 1964.  With the
\naforesaid observation, I accordingly direct the A\/O to include the said
\nsum in the appellant’s Capital for the purpose of its surtax assessments
\nfor the years 1980-81, 1981-82 and 1982-83 respectively.\n<\/p>\n
Likewise, the Income Tax Appellate Tribunal while placing reliance on the
\njudgment of Standard Vacuum Oil Co. (supra) in paras 8-12 has observed as under:\n<\/p>\n
8. ..To support his argument, he relied on the ratio of the Hon’ble Supreme
\nCourt in the case of Commissioner of Income Tax (Control) Calcutta vs.
\nStandard Vacuum Oil Co.<\/a> (59 ITR 685) where the Hon’ble Supreme Court
\ndiscussed the Indian Income Tax Act, 1922 and also the similar Explanation
\n(supra).  The Hon’ble Supreme Court observed that the Explanation to Rule 2
\nhas no relevance as the difference between the assets of Company and the
\npar value of the shares issued cannot be called a book asset brought into
\nexistence by creating or increasing.  The assets received by the assessee-
\ncompany are real and tangible assets.  Needless to mention that the said
\nissue has already been discussed by the Commissioner of Surtax (Appeals) in
\nhis order.\n<\/p>\n
9. We have heard both the parties at length and gone through the materials
\navailable on record including the order of both the High Courts and the
\namalgamation scheme.  From the record it appears that the Reserve Bank of
\nIndia has allowed the consideration perhaps on ad-hoc basis as no basis has
\nappeared from the letter of the Reserve Bank of India dated 28th June, 1979,
\n(at pages 29-32 of the paper book).  The Reserve Bank of India in its approval
\nmentioned at para 3 (i) that:-\n<\/p>\n
“There shall not be any depletion in the net assets as on the actual
\ndate of transfer of business from what was given in the Balance sheets of the
\ntwelve sterling tea companies as on 31st December, 1976 and an auditor’s
\ncertificate of this effect shall be submitted to us after the formalities for
\ntransfer of business are completed.”\n<\/p>\n
On query from the Bench, we were told that the actual taken over was
\non 31.12.77 i.e. after one year of the amalgamation scheme.\n<\/p>\n
10. From the records the issue is whether the reserve of Rs.1,43,89,055\/- is a
\nreserve brought into existence by creating or increasing any book asset of
\nnot.  At the cost of repetition it may be mentioned that the assets which were
\ntaken over were real and tangible assets and there was no tangible assets
\nlike goodwill etc. which can form a book asset or artificial assets because the
\nReserve Bank of India has not given any reason for allowing the lump-sum
\nconsideration, therefore, this confusion has arisen.  Needless to mention that
\nthe value of the assets and consideration paid have bound to be
\ndifferentiated.  In other words, the real value of the book value has always a
\ndifference.\n<\/p>\n
11. In the instant case, the said amount had to be shown in the accounts as
\nother capital reserve in accordance with normal accounting principles
\nbecause the consideration received on transfer of the erstwhile sterling 12 tea
\ncompanies in India taken over by the assessee company as a going concern
\nfell short of the net worth of business taken over and without such entry the
\nbalance sheet of the assessee company on the date of taken over of the
\nbusiness would not have tallied and the difference has created this legal
\ndispute.\n<\/p>\n
12. Therefore, such capital reserve has to be treated as forming a part of the
\ncapital under rule 1 (iii) of the second schedule (supra) surtax Act, 1964.
\nNonetheless, it may be mentioned that the words, “brought into existence”
\nwere read in isolation without reading the subsequent words “by creating or
\nincreasing, (by valuation or otherwise) any book assets”.  By considering the
\ntotality of the facts and circumstances of the case, we are of the view that the
\nassessee had neither created nor increased any book asset in the instant
\ncase.  At the time of taking over no exercise was taken place to tally the
\nassets and the Reserve Bank of India has allowed the lump-sum
\nconsideration.  We are also of the view that the assets received by the
\ncompany are real and tangible assets as evidenced by the extracts of the
\nbalance sheet (pages 43-44) of the paper book).  In the absence of any
\nadditional materials\/evidence, we are of the view that the capital reserve of
\nRs.1,43,055\/- representing the difference between the value of assets taken
\nover and consideration allowed by the Reserve Bank of India was rightly
\nincluded by the assessee company for computing the capital to determine the
\nstatutory deduction under the Companies (Profits) Surtax Act, 1964.
\nTherefore, we find no infirmity with the direction given to the A.O. by the
\nCommissioner of Surtax (Appeals) to include the said sum in the assessee’s
\ncapital for the purpose of its surtax assessment for the assessment years
\nunder consideration.”\n<\/p>\n
As rightly pointed out by learned senior counsel for the appellant the judgment of
\nStandard Vacuum Oil Co. (supra). was cited before the High Court, the Division
\nBench failed to appreciate the applicability of the said judgment to the case on hand.
\nLikewise, the High Court has completely failed to appreciate the true meaning and real
\neffect in law of Explanation 1 to Rule 2 of the Second Schedule to the Companies
\n(Profits) Surtax Act, 1964.  The Division Bench, in our view, has grossly erred in stating
\nthat the appellant had obviously received benefits in computation of income tax on
\naccount of assets taken over by the appellant from other tea companies and that,
\ntherefore, the reserve in question could not be treated as a component of the capital for
\nthe purposes of surtax assessment.  Such a new case was neither at all advanced by
\nthe Revenue before the High Court, nor could such a case at all be considered by the
\nHigh Court inasmuch as it did not at all arise out of the order by the Appellate Tribunal.
\nThe provisions of the Business (Profits) Tax Act, 1947 which were interpreted by this
\nCourt in Standard Vacuum Oil Co. (supra).  are virtually identical to the provisions of
\nthe Companies (Profits) Surtax Act, 1964 and since the said judgment directly and
\nsquarely covered the instant case.  In our opinion, the High Court has committed a
\npatent error in completely dis-regarding the judgment of this Court in Standard
\nVacuum Oil Co. (supra).  and in reversing the well-considered order of the Appellate
\nTribunal which has decided the matter in favour of the appellant and as a consequence
\nof the impugned order of the High Court, the huge tax liability was created on the
\nappellant without any warrant or justification whatsoever.\n<\/p>\n
We, therefore, have no hesitation to set aside the order passed by the High
\nCourt impugned in these appeals and restore the order passed by the Tribunal.  In the
\nresult, these  appeals are allowed.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S George Williamson (Assam) Ltd vs Commissioner Of Income Tax, … on 19 September, 2005 Author: . A Lakshmanan Bench: Dr. Ar. Lakshmanan, P.P. Naolekar CASE NO.: Appeal (civil) 6694-6698 of 2004 PETITIONER: M\/s George Williamson (Assam) Ltd. RESPONDENT: Commissioner of Income Tax, Guwahati DATE OF JUDGMENT: 19\/09\/2005 BENCH: Dr. AR. 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