{"id":23479,"date":"2002-05-03T00:00:00","date_gmt":"2002-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-late-sh-gulshan-kumar-through-on-3-may-2002"},"modified":"2017-08-17T08:26:19","modified_gmt":"2017-08-17T02:56:19","slug":"commissioner-of-income-tax-vs-late-sh-gulshan-kumar-through-on-3-may-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-late-sh-gulshan-kumar-through-on-3-may-2002","title":{"rendered":"Commissioner Of Income Tax vs Late Sh. Gulshan Kumar Through … on 3 May, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Commissioner Of Income Tax vs Late Sh. Gulshan Kumar Through … on 3 May, 2002<\/div>\n
Author: D Bhandari<\/div>\n
Bench: D Bhandari, V Sen<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Dalveer Bhandari, J.  <\/p>\n
1. The appellant, Commissioner of Income Tax, has
\nfiled this appeal under Section 260A of the Income
\nTax Act, 1961 (for short “the Act”) against the
\norder passed by the Income Tax Appellate Tribunal
\n(for short “the Tribunal”).\n<\/p>\n
2. Brief facts which are relevant for the disposal of
\nthe appeal are recapitulated as under.\n<\/p>\n
3. The respondent assessed on 27.8.1987 filed his
\nincome tax return declaring income of Rs.
\n3,60,448\/- for the assessment year 1987-88. On
\n27.3.1990 this amount was revised to an income of
\nRs. 4,18,400\/-. The assessment was completed
\nunder Section 143(3) of the Act on 29.3.1990 and
\nthe total income was assessed at Rs. 16,31,125\/-.\n<\/p>\n
4. The Assessing Officer issued a notice under
\nSection 148 of the Act on 18.3.1991 and in
\ncompliance of the said notice the assessed filed
\nreturn on 2.7.1991 declaring income of Rs.
\n4,18,400\/- for the assessment year 1987-88.\n<\/p>\n
5. On 7.6.1986 and 5.8.1986 the respondent assessed
\nhad transferred 1250 fully paid up shares and 5000
\npartly paid up shares of M\/s Tony Electronics to
\nhis employees, declares and close relations at Rs.
\n100\/- each per fully paid up share and Rs. 50\/-
\neach per partly paid up share. The sale
\nconsideration was also the cost price of each
\nshare to the assessed.\n<\/p>\n
6. The assessing Officer arrived at the conclusion
\nthat in the case of transfer of shares at the cost
\nprice the respondent assessed had deliberately
\nfurnished inaccurate particulars and income was
\nunder assessed. He accordingly completed the
\nassessment at a total income of Rs. 19,74,805\/-.\n<\/p>\n
7. The respondent assessed preferred an appeal before
\nthe Commissioner of Income Tax (Appeals) (for
\nshort “the CIT(A)”). After examining the facts,
\ngrounds of appeal and after hearing the assessed
\nthe CIT(A) deleted the addition on account of
\ndeemed capital gains. According to the CIT(A) it
\nis not in dispute that the shares were transferred
\nat cost price. He further observed that there is
\nabsolutely no material on
\nrecord to show that the sale consideration was
\nunderstand or that the appellant received
\nanything directly or indirectly over and above the
\ndeclared value of shares.\n<\/p>\n
8. The CIT(A) observed that the legal position has
\nbeen settled by a celebrated judgment of the
\nApex Court in the case of  KP Varghese v.  ITO
\nreported in 131 ITR 597. The CIT(A) mentioned
\nthat the Section 52 was altogether omitted from
\nthe statute w.e.f. 1.4.88 because of the K.P.
\nVerghese case (supra). He also observed that the
\nsale consideration is fully backed by one
\nrecognised method of determining the fair market
\nvalue of shares i.e. the yield method. Under the
\ncircumstances, the addition of Rs. 11,66,000\/-
\nbeing the amount of deemed capital gains made by
\nthe Assessing Officer cannot be upheld and the
\nsame is deleted.\n<\/p>\n
9. The appellant revenue had preferred an appeal
\nbefore the Tribunal against the said judgment of
\nthe CIT(A). The Tribunal observed that the order
\nof the CIT(A) was reasonable and justified and
\nconsequently the appeal filed by the Revenue was
\ndismissed.\n<\/p>\n
10. The Revenue aggrieved by the order of the Tribunal
\npreferred appeal under Section 260A of the Act.
\nThe Revenue submitted that the ITAT has wrongly
\ninterpreted Section 52 of the Act. The Revenue
\nalso submitted that the Assessing Officer rightly
\ninvoked Section 52(1) of the Act and correctly
\nincluded Rs. 11,66,000\/- as income from capital
\ngains on transfer of shares.\n<\/p>\n
11. Section 52(1) of the Act was considered in great
\ndetail by their Lordships in the case of K.P.
\nVerghese (supra). The judgment of K.P. Verghese
\nwas followed in the subsequent judgment of the
\nSupreme Court in  Commissioner of Income Tax v.
\n Godawari Corporation reported as 200 ITR 567.\n<\/p>\n
12. Section 52 of the Act, which was omitted by the
\nFinance Act, 1987 with effect from 1.4.1988, on
\nwhich this case hinges heavily reads as under:-\n<\/p>\n
 “52.(1) Where the person who acquires a capital
\nasset from an assessed is directly or indirectly
\nconnected with the assessed and the Income-tax
\nOfficer has reason to believe that the transfer
\nwas effected with the object of avoidance or
\nreduction of the liability of the assessed under
\nSection 45, the full value of the consideration
\nfor the transfer shall, with the previous
\napproval of the Inspecting Assistant
\nCommissioner, be taken to be the fair market
\nvalue of the capital asset on the date of the
\ntransfer.\n<\/p>\n
 (2)  Without prejudice to the provisions of
\nSub-section (1), if in the opinion of the
\nIncome-tax Officer the fair market value of a
\ncapital asset transferred by an assessed as on
\nthe date of the transfer exceeds the full value
\nof the consideration declared by the assessed in
\nrespect of the transfer of the value so declared,
\nthe full value of the consideration for such
\ncapital asset shall, with the previous approval
\nof the Inspecting Assistant Commissioner, be
\ntaken to be its fair market value on the date of
\nits transfer;\n<\/p>\n
 Provided that this sub-section shall not apply in
\nany case –\n<\/p>\n
 (a) where the capital asset is transferred to the
\nGovernment, or  <\/p>\n
(b) where the full value of the consideration for
\nthe transfer of the capital asset is determined
\nor approved by the Central Government or the
\nReserve Bank of India.\n<\/p>\n
 13. This section came up for consideration before
\ntheir Lordships of the Supreme Court in the case
\nof  K.P. Varghese (Supra). While interpreting
\nSection 52(1) their Lordships in this case
\nobserved that “Section 52(1) does not deem income
\nto accrue or to be received which in fact never
\naccrued or was never received. It seeks to bring
\nwithin the net of taxation only that income which
\nhas accrued or is received by the assessed as a
\nresult of the transfer of the capital asset. But
\nsince it would not be possible for the ITO to
\ndetermine precisely how much more consideration is
\nreceived by the assessed than that declared by
\nhim, Sub-section (1) provides that the fair market
\nvalue of the property as on the date of the
\ntransfer shall be taken to be the full value of
\nthe consideration for the transfer which has
\naccrued to or is received by the assessed.” The
\ncourt also observed that “the net effect of this
\nprovision is as if a statutory best judgment
\nassessment of the actual consideration received by
\nthe assessed is made, in the absence of reliable
\nmaterials. The onus of establishing that the
\nconditions of taxability are fulfillled is always
\non the Revenue. A statutory provision must be so
\nconstrued, if possible, that absurdity and
\nmischief may be avoided. Where the plain literal
\ninterpretation of a statutory provision produces a
\nmanifestly absurd and unjust result which could
\nnever have been intended by the legislature, the
\ncourt may modify the language used by the
\nlegislature or even do some violence to it, so as
\nto achieve the obvious intention of the
\nlegislature and produce a rational construction.”\n<\/p>\n
14. In the said case of K.P. Varghese (supra) their
\nLordships of the Supreme Court observed that “on a
\nplain and natural construction of the language of
\nSection 52, Sub-section (2), the only condition
\nfor attracting the applicability of that provision
\nwas that the fair market value of the capital
\nasset transferred by the assessed as on the date
\nof the transfer exceeded the full value of the
\nconsideration declared by the assessed in respect
\nof the transfer by an amount of not less than 15%
\nof the value so declared. Once the Income Tax
\nOfficer or the Assessing Officer is satisfied that
\nthis condition exists, he can proceed to invoke
\nthe provision in Section 52, Sub-section (2), and
\ntake the fair market value of the capital asset
\ntransferred by the assessed as on the date of the
\ntransfer as representing the full value of the
\nconsideration for the transfer of the capital
\nasset and compute the capital gains on that
\nbasis.” The Court further observed that “To
\nintroduce any further condition such as
\nunderstatement of consideration in respect of the
\ntransfer would be to read into the statutory
\nprovision something which is not there; indeed,
\nit would amount to re-writing the section.\n<\/p>\n
15. Their Lordships observed in the said case that the
\nargument was based on a strictly literal reading
\nof Section 52, Sub-section (2), but the Court
\nobserved that “…we do not think such a
\nconstruction can be accepted. It ignores several
\nvital considerations which must always be borne in
\nmind when we are interpreting a statutory
\nprovision.” The Court observed that the task of
\ninterpretation of a statutory enactment is not a
\nmechanical task. It is more than a mere reading
\nof mathematical formulae because few words possess
\nthe precision of the mathematical symbols. It is
\nan attempt to discover the intent of the
\nLegislature from the language used by it and it
\nmust always be remembered that the language is at
\nbest an imperfect instrument of the expression of
\nhuman thought and, as pointed out by Lord Denning,
\nit would be idle to expect every statutory
\nprovision to be “drafted with divine prescience
\nand perfect clarity”. In the said judgment their
\nLordships also quoted the distinguished American
\nJudge, Justice Hand which reads as under:-\n<\/p>\n
“…it is true that the word used, even in their
\nliteral sense, are the primary and ordinarily the
\nmost reliable source of interpreting the meaning
\nof any writing; be it a statute, a contract or
\nanything else. But it is one of the surest
\nindexes of a mature and developed jurisprudence
\nnot to make a fortress out of the dictionary;
\nbut to remember that statutes always have some
\npurpose or object to accomplish, whose
\nsympathetic and imaginative discovery is the
\nsurest guide to their meaning.”\n<\/p>\n
16. Their Lordships of the Supreme Court further
\nobserved as under:-\n<\/p>\n
“We must not adopt a strictly literal
\ninterpretation of Section 52, Sub-section (2), but we must
\nconstrue its language having regard to the object
\nand purpose which Legislature had in view in
\nenacting that provision and in the context of the
\nsetting in which it occurs. We cannot ignore the
\ncontext and the collection of the provisions in
\nwhich Section 52, Sub-section (2), appears, because, as
\npointed out by judge Learned Hand in the most
\nfelicitous language:\n<\/p>\n
“…..the meaning of a sentence may be
\nmore than that of the separate words, as
\nmelody is more than the notes, and no
\ndegree of particularity can ever obviate
\nrecourse to the setting in which all
\nappear, and which all collectively
\ncreate.”\n<\/p>\n
17. The Court observed that the primary objection
\nagainst the literal construction of Section 52,
\nSub-section (2) is that it leads to manifestly
\nunreasonable and absurd consequences. It is true
\nthat the consequences of a suggested construction
\ncannot alter the meaning of a statutory provision
\nbut it an certainly help to fix its meaning. It
\nis a well-recognised rule of construction that a
\nstatutory provision must be so construed, if
\npossible, that absurdity and mischief may be
\navoided. There are many situations where the
\nconstruction suggested on behalf of the revenue
\nwould lead to a wholly unreasonable result which
\ncould never have been intended by the Legislature.
\nTheir Lordships gave an illustration which is
\nquite apt and we think it proper to reproduce it.
\nIt reads as under:-\n<\/p>\n
“A agrees to sell his property to B for a
\ncertain price and before the sale is completed
\npursuant to the agreement – and it is quite
\nwell known that sometimes the completion of the
\nsale may take place even a couple of years
\nafter the date of the agreement – the market
\nprice shoots up with the result that the market
\nprice prevailing on the date of the sale
\nexceeds the agreed price, at which the property
\nis sold, by more than 15% of such agreed price.
\nThis is not at all an uncommon case in an
\neconomy of rising prices and in fact we would
\nfind in a large number of cases where the sale
\nis completed more than a year or two after the
\ndate of the agreement that the market price
\nprevailing on the date of the sale is very much
\nmore than the price at which the property is
\nsold under the agreement. Can it be contended
\nwith any degree of fairness and justice that in
\nsuch cases, where there is clearly no
\nunder-statement of consideration in respect of
\nthe transfer and the transaction is perfectly
\nhonest and bona fide and, in fact, in
\nfulfilment of a contractual obligation, the
\nassessed, who has sold the property, should be
\nliable to pay tax on the capital gains which
\nhave not accrued or arisen to him? It would
\nindeed be most harsh and inequitable to tax the
\nassessed on income which has neither arisen to
\nhim nor is received by him, merely because he
\nhas carried out the contractual obligation
\nundertaken by him. It is difficult to conceive
\nof any rational reason why the Legislature
\nshould have thought it fit to impose liability
\nto tax on an assessed who is bound by law to
\ncarry out his contractual obligation to sell
\nthe property at the agreed price and honestly
\ncarries out such a contractual obligation. It
\nwould indeed be strange if obedience to the law
\nshould attract the levy of tax on him.”\n<\/p>\n
18. The Court observed that it is now a well-settled
\nrule of construction that where the plain literal
\ninterpretation of a statutory provision produces a
\nmanifestly absurd and unjust result which could
\nnever have been intended by the legislature, the
\ncourt may modify the language used by the
\nlegislature or even “do some violence” to it, so
\nas to achieve the obvious intention of the
\nlegislature and produce a rational construction.\n<\/p>\n
19. Their Lordships of the Supreme Court observed that
\nthe Court must obviously prefer a construction
\nwhich renders the statutory provision
\nconstitutionally valid rather than that which
\nmakes it void. The Court held that the
\nSub-section (2) of Section 52 can be invoked only
\nwhere the consideration for the transfer has been
\nunderstated by the assessed or, in other words,
\nthe consideration actually received by the
\nassessed is more than what is declared or
\ndisclosed by him and the burden of proving such an
\nunderstatement or concealment is on the revenue.
\nThis burden may be discharged by the revenue by
\nestablishing facts and circumstances from which a
\nreasonable inference can be drawn that the
\nassessed has not correctly declared or disclosed
\nthe consideration received by him and there is an
\nunderstatement or concealment of the consideration
\nin respect of the transfer. Sub-section (2) has
\nno application in the case of an honest and bona
\nfide transaction where the consideration received
\nby the assessed has been correctly declared or
\ndisclosed by him, and there is no concealment or
\nsuppression of the consideration.\n<\/p>\n
20. Reverting to the facts of this case the respondent
\nassessed had transferred the share at the cost
\nprice to the employees and near relations. The
\nlearned Tribunal held that the provision of
\nSection 52 of the Act comes into operation only
\nwhen actual consideration received by the assessed
\nis not disclosed and the consideration declared in
\nrespect of the transfer is shown at a lesser
\nfigure than that actually received. The onus to
\nprove that the assessed has not declared the
\nactual consideration and that the consideration
\ndeclared in respect of the transfer is shown at a
\nlesser figure rests upon the revenue. It may be
\npertinent to mention that it is extremely
\ndifficult, if not impossible, for the revenue to
\ndischarge the onus placed by the Legislature.
\nPerhaps for this reason and for the other reasons
\nincorporated in K.P. Varghese’s case (supra) led
\nto deletion of Section 52 from the Act with effect
\nfrom 1.4.1988. The Tribunal observed that in the
\npresent case the revenue has not made out a case
\nthat any consideration was concealed or not
\ndeclared by the assessed. The learned CIT(A) has
\ngiven finding in his order dated 10.1.1996 that
\n“There is no material on record to show that the
\nsale consideration was understated or that the
\nappellant received anything directly or indirectly
\nover and above the declared value of shares. In
\nfact, this is not the case of the Assessing
\nOfficer.” The findings of the CIT (A) have been
\nupheld by the learned Tribunal.\n<\/p>\n
21. We have carefully considered the relevant
\nprovision and the decision of K.P. Varghese
\n(supra) in extenso. The orders of the CIT(A) and
\nthe Tribunal have correctly reached to the
\nconclusion that there is no material on record to
\nshow that the sale consideration was understated
\nor the respondent assessed had received anything
\ndirectly or indirectly over and above the declared
\nvalue of the shares. In view of these findings,
\nthe provisions of Section 52 of the Act are not
\nattracted. In view of the judgment of their
\nLordships of the Supreme Court in K.P. Varghese’s
\n(supra) the revenue is under an obligation to
\ndischarge that there is material to show that the
\nsale consideration was understated or the assessed
\nhad received anything directly or indirectly over
\nand above the declared value. It is always a
\ndifficult task for the revenue to establish this
\nand perhaps for this reason the legislature in its
\nwisdom had rightly decided to delete Section 52 of
\nthe Income Tax Act, 1961 from the statute book with
\neffect from 1.4.1988.\n<\/p>\n
22. In our considered opinion, no interference is
\ncalled for. The appeal filed by the Commissioner
\nof Income Tax is devoid of any merit and is
\naccordingly dismissed. In the facts and
\ncircumstances of the case, we direct the parties
\nto bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Commissioner Of Income Tax vs Late Sh. Gulshan Kumar Through … on 3 May, 2002 Author: D Bhandari Bench: D Bhandari, V Sen JUDGMENT Dalveer Bhandari, J. 1. The appellant, Commissioner of Income Tax, has filed this appeal under Section 260A of the Income Tax Act, 1961 (for short “the Act”) against […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-23479","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nCommissioner Of Income Tax vs Late Sh. 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