# COMMISSIONER OF INCOME-TAX, GUJARAT v. MIS. B. M. KHARWAR

- **Citation:** [1969] 1 S.C.R. 651
- **Court:** Supreme Court of India
- **Decided:** 1968-08-13
- **Bench:** J. C. Shah, v. R.AMASWAMI, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-income-tax-gujarat-v-mis-b-m-kharwar-4462
- **Pages:** 9

## Headnote

Indian Income-tax Act 1922, s. !0(2) (vii) proviso (ii)-Fai:tory belonging to partnership firm
transferred to private limited companyPurtners continuing to hGve same interest in company as in firm-Transfer
of assets of finn to company at value higher than written down valueProfit whether can be taxed under s.
10(2) (vii)
proviso (ii)-Section
whether applies to realisation sales-Trc.nsfer must amount to sale before
C
section can apply.
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Machinery of a factory belonging to the respondents firm, was transferred to a p'rivate limited company.
In the share capital of company
the partners of the respondents firm had the same interest as they had
in the assets and profits of the partnership.
The transaction resulted in
excess realisation over written down value of the machinery. This excess
was brought to tax under s. 10(2) (vii) proviso (ii) of the Income-tax
Act, 1922 by the Income-tax Officer.
But the Appellate Tribunal held
that the firm transferred the machinery only with a view to carry on the
business as a company rather than as a firm and by that transfer no profit
in a business sense could be deemed to have resulted to the furn. The
High Court answered the question, on reference, against the Revenue.
In appeal, this cOurt :
•
HELD :-The appeal must be allowed.
Assuming that by the transaction in question, readjustment of the
business relationship was intended, the liability to be taxed in respect of
the readjustment had to be determined according to the strict legal form
of the transaction. The company was a legal entity distinct from
the
partnership under the general law. Transfer of the machinery Was by the
:firm to the company; and the legal effect of the transaction was to convey
for consideration the rights of the firm in the machinery to the company.
The transaction resulted in excess realization over the written down value
of the machinery to the firm. and the liability to tax if any arising under
the Act could not be avoided on the ground that in consequence of the
transfer the interest of the partners in the machinery was substituted by
an interest in the shares of thei company which owned the machinery. The
taxing authority is entitled, and is indeed bound, to determine the true
1egal relation resulting from a transaction.
If the parties have chosen to
conceal by a de,ice the legal relation. it is open to the taxing authorities
to unravel the device and ,to determine the true character of the relationship. But the legal effect of a transaction cannot be displaO"..-d. by probing
into the usubstance of the transaction". This principle applies alike to
cai;es in which the legal relation is recorded in a formal document, and
to cases where it has to be gathered from evidence--0ra1 and documentary-and conduct of the parties to the transaction. [656 E-G; 655 E G]
Comn1issioner of Income-tax v. Sir Ho1ni Melita's Executors 28 l.T.R.
928; Rogers & Co.
v. Commissioner of Income-tax,
34 l.T.R.
336;
Mugneeram Bangur's & Company's case,' 47 I.T.R. 565; Commissioner of
Income-tax v. Morning Srar Bus Service, 49 I.T.R. 927; M. C. Cherian v.
Commissioner of Income-tax, 51 I.T.R. 631, disapproved.
652
SUPREME COt:RT REPORTS
[1969] I SCR
Maharaja Dhiraj Sir Ko111e~h1var Singh v. Conzmissioner of lnco1ne-ta:c,
A.
48 l.T.R. 483, approved.
Inland Re~·enue Co111111isrioncrs v. Duke of JYesr111ins1t'r, 19 ·r.C. 490,
referred to.
Bank of Chettinnd ltd. v. Couunis.\·ioncr of /11co111e-1ax 8 I.T.R. 522,
applied to.
·
Com1nis.sioner of lnron1c-tax v. Motors &: Gl'neral Stores (P) Ltd.
B
66 l.T.R. 692, followed.
Sir Kikabhai Pre1nclu111d \'. Co1nmissio11er of lnco111e-tax1
24 I.T.R.
506, referred lo.
(ii) By virtue of the amendment made in s. 10(2) (vii) proviso (ii)
of the Indian Income-tax Act, 19'22, bv s. 11 of the Taxation Laws (Extension to Mer~ed State< and Amendment) Act 67 of 1949. even under
a "realization sale'' excess ovl~r the written down value not exceeding the
difference hetv•een the original cost and the \.\'fitlcn

## Text

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COMMISSIONER OF INCOME-TAX, GUJARAT
V.
MIS. B. M. KHARWAR
August 13, 1968
651
B
[J. C. SHAH, v. R.AMASWAMI AND A. N. GROVER, JJ.]
Indian Income-tax Act 1922, s. !0(2) (vii) proviso (ii)-Fai:tory belonging to partnership firm
transferred to private limited companyPurtners continuing to hGve same interest in company as in firm-Transfer
of assets of finn to company at value higher than written down valueProfit whether can be taxed under s.
10(2) (vii)
proviso (ii)-Section
whether applies to realisation sales-Trc.nsfer must amount to sale before
C
section can apply.
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G
H
Machinery of a factory belonging to the respondents firm, was transferred to a p'rivate limited company.
In the share capital of company
the partners of the respondents firm had the same interest as they had
in the assets and profits of the partnership.
The transaction resulted in
excess realisation over written down value of the machinery. This excess
was brought to tax under s. 10(2) (vii) proviso (ii) of the Income-tax
Act, 1922 by the Income-tax Officer.
But the Appellate Tribunal held
that the firm transferred the machinery only with a view to carry on the
business as a company rather than as a firm and by that transfer no profit
in a business sense could be deemed to have resulted to the furn. The
High Court answered the question, on reference, against the Revenue.
In appeal, this cOurt :
•
HELD :-The appeal must be allowed.
Assuming that by the transaction in question, readjustment of the
business relationship was intended, the liability to be taxed in respect of
the readjustment had to be determined according to the strict legal form
of the transaction. The company was a legal entity distinct from
the
partnership under the general law. Transfer of the machinery Was by the
:firm to the company; and the legal effect of the transaction was to convey
for consideration the rights of the firm in the machinery to the company.
The transaction resulted in excess realization over the written down value
of the machinery to the firm. and the liability to tax if any arising under
the Act could not be avoided on the ground that in consequence of the
transfer the interest of the partners in the machinery was substituted by
an interest in the shares of thei company which owned the machinery. The
taxing authority is entitled, and is indeed bound, to determine the true
1egal relation resulting from a transaction.
If the parties have chosen to
conceal by a de,ice the legal relation. it is open to the taxing authorities
to unravel the device and ,to determine the true character of the relationship. But the legal effect of a transaction cannot be displaO"..-d. by probing
into the usubstance of the transaction". This principle applies alike to
cai;es in which the legal relation is recorded in a formal document, and
to cases where it has to be gathered from evidence--0ra1 and documentary-and conduct of the parties to the transaction. [656 E-G; 655 E G]
Comn1issioner of Income-tax v. Sir Ho1ni Melita's Executors 28 l.T.R.
928; Rogers & Co.
v. Commissioner of Income-tax,
34 l.T.R.
336;
Mugneeram Bangur's & Company's case,' 47 I.T.R. 565; Commissioner of
Income-tax v. Morning Srar Bus Service, 49 I.T.R. 927; M. C. Cherian v.
Commissioner of Income-tax, 51 I.T.R. 631, disapproved.
652
SUPREME COt:RT REPORTS
[1969] I SCR
Maharaja Dhiraj Sir Ko111e~h1var Singh v. Conzmissioner of lnco1ne-ta:c,
A.
48 l.T.R. 483, approved.
Inland Re~·enue Co111111isrioncrs v. Duke of JYesr111ins1t'r, 19 ·r.C. 490,
referred to.
Bank of Chettinnd ltd. v. Couunis.\·ioncr of /11co111e-1ax 8 I.T.R. 522,
applied to.
·
Com1nis.sioner of lnron1c-tax v. Motors &: Gl'neral Stores (P) Ltd.
B
66 l.T.R. 692, followed.
Sir Kikabhai Pre1nclu111d \'. Co1nmissio11er of lnco111e-tax1
24 I.T.R.
506, referred lo.
(ii) By virtue of the amendment made in s. 10(2) (vii) proviso (ii)
of the Indian Income-tax Act, 19'22, bv s. 11 of the Taxation Laws (Extension to Mer~ed State< and Amendment) Act 67 of 1949. even under
a "realization sale'' excess ovl~r the written down value not exceeding the
difference hetv•een the original cost and the \.\'fitlcn dov.·n vaJue is liable
to be brought to tax.
If 'iince the an1endment of the proviso. liability to
pay l~1x on the excess over the \\Tittcn down value ari~es, whether the
sale of building. machinery or plant is before or aftc'r the closure of the
business. it would be illogical to sav that the excess is not taxahle if the
sale is for the closing do\\:n or in the course of winding up of the husincss.
[657 C-D; 658 E F)
Contn1issioncr oj lncon1r-t:1x V, w('St ('oast Chcniica/ & /11dustrics Ltd.
46 l.T.R. 135, referred to.
(iii) Bys. 10(2)(vii) proviso (ii) excess over the \\Tittcn down value.
suhjcct to the maximum prc~cribcd thereby, may be brought to charge to
tax only if the huilding, machinery, or plant is sold.
If the tranc;action
docs not ;1mount fo a sale the proviso is not attracted. [<158 GJ
Conunissioner of lnco1n<·-t<Lt v. R. R. Ranrakrishna Pillai, 66 I.T.R.
715. relied on.
(In the present case since the trihun;1l had not r.ivcn any fiading on the
question \\'hether the tran-.fcr was a sale, the Supreme \..ourt declined to
answer the question.)
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Ctv11. APPELLATE JURISDICTION°: Civil Appeal No. 1678 of
F
1966.
Appeal from the judgment and order, dated September 22.
1965 of the Gujarat High Court in Income-tax Reference No. IO
of 1965.
T. A. Ramaclwndran and R. N. Sachthey, for the appellant.
Dalip D•rarkadas, G. L. Sanghi, M. L. Bhakta, A. K. Varma
and 0. C. Marh11.", for the respondent.
·
The Judgment of the Court was delivered by
Shah, J. ·nie respondents-a firm which carries on the
business of manufacturing. purchasing and selling cloth-dosed
its manufacturing side of the business and transferred its machinery to a private limited comrany in the share capital of which
the partners of the finn had the same interest as they had in the
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C.I.T. v. KHARWAR (Shah, J.)
653
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assets and profits of the partnership.
In the
assessment year
1959-60 the Income-tax Officer, Surat, brought to tax under s. 10
(2) (vii) proviso (ii) of the Income-tax Act, 1922, Rs. 40,743
being the excess realized over the written do.wn value of
~e
machinery. But the Income-tax Appellate Tnbunal held •. relym~
upon the decisions in Commissioner of lncone-tax v. Sir Rom1
B
Mehtds Executors;(') Rogers & Co. v. Commissioner of lncometax-(2) and Commissioner of Income-tax v. Mugneeram Bangur
& Co. (3) that the firm "transferred the machinery only with a view
tD carry on the business as a company rather than as a firm",
and by that transfer no profit in a business sense could be deemed
to have resulted to the firm.
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The following question referred by the TribunalD
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"whether, on the facts and in the circumstances of
the case, the sum of Rs. 40,743 is assessable to tax by
applying second proviso to s. 10(2) (vii) of the Indian
Income-tax Act, 1922 ?",
was answered by the High Court of Gujarat in the negative. The
Commissioner of Income-tax appeals with certificate of fitness
granted by the High Court.
Counsel for the Commissioner contended that the decisions
'in Sir Romi Mehta's Executors case, (1) Rogers & Company
case(') and Mugneeram Bangur's & Company's case(3 ) on which
the Tribunal and the High Court relied are inconsistent with the
judgments of this Court.
He submitted that the assessee could
not in a case falling within the 2nd proviso to s. 10(2Hvii) of
the Income-tax Act, 1922, avoid liability to be taxed in respect
of the excess realized over the written down value of the machinery
sold by the firm on the plea that the "substance of the transaction"
which resulted in transfer of the rights of the firm to the company
was of the nature of a step to readjust the business relations of
the partners inter se.
In Sir Romi Mehtds Executors case(') a group of individuals
who were carrying on business in shares transferred their holding of shares in several joint stock companies to a private limited
company formed by them and entered in the books of the company the price of the shares ruling in the market on the date
of the commencement of its business.
The market value of the
shares was in excess if the cost to the transferors. It was held
that no profit may in law be said to have resulted, for the true
result of the transfer of the shares was only that instead of the
shares being jointly held as "individuals. they were held by those
very persons as a limited company-a procedure adopted merely
(l) 28 I.T.R. 928.
(2) 34 I.T.R. 336.
(3) 47 I.T.R. 565.
654
SL'PREME COURT REPORTS
[1969] I S.CR.
for readjustment of their business position as holders of the shares
in the various companies.
Rogers &
Company's case( 1 )
the
Bombay High Court held that where partners of a trading finn
were allotted shares in a private limited company floated by them
in the same proportion as the shares they held in the assets of the
firm transferred to the company, excess of price for which the
assets were sold over the written down value of the assets could
not be brought to tax under s. 10(2)(vii) Jiroviso (ii) of the
Income-tax Act, l 922.
In the view of the High Court tramfer
of assets of the firm to the company did not amount to sale within
the meaning of s. l 0 (2) (vii) proviso (ii).
The High Court
observed at page 3 3 9-
"But in all transactions which come up for consideration in a taxing statute we have to look at the
real nature of the transaction; we have not to look at
the form-the legal form-which a transaction has :
and when we look at the real nature of the transaction
before us. although legally it is a sale, substantially and
really it is only a readjustment made by certain pcrsOIJS
so as to carry on business in one form rather than in
another."
That view was adopted with some variation in the norms of expression by the Calcutta High Court in Mugneeram Bangur and
Company's case("), by the Kerala High Court in Commissioner
of Income-tax v. Morning Star B11s Service(') and by the Madras
High Court in M. C. Cherian v. Commissioner of lncome-tax.(4)
The Patna High Court expressed a different view in Maharajadhiraj Sir Kameshwar Singh v. Commissioner of Income-tax.(')
The principle which was expounded by the Bombay High
Court and adopted by the Calcutta. Madras and Kcrala High
Courts cannot in our judgment be accepted as correct. It is now
well-settled that the taxin.g authorities are not entitled in
determining whether a receipt is liable to be taxed to ignore the legal
character of the transaction which is the source of the receipt and
to proceed on what they regard as "the substance of the matter".
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In Inland Reven11e Commissioners
v.
Duke of WestG
minster('), Lord Russel of Killowcn observed at p. 524:
" ...... I view with disfavour the doctrine that in
taxation cases the subject is to be taxed if. in accord-
. ance with a Court's view of what it considers the substance of the transaction, the Court thinks that the case
----·-·---" -
.
fl) 34 1.T.R. Jl6.
(2)
47 J.T.R. 565.
(]) 49 J.T.R. 921.
(4)
51 l.T.R. 611.
(5)
48 1.T.R. 483.
(6)
19 T.C. 490.
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C.I.T. V. KHARWAR (Shah, J.)
falls within the contemplation or spirit of the statute .
. if .
. the doctrine means that
you may brush
aside deeds,
disregard
the legal
rights and liabilities arising under a contract between
parties, and decide the question of taxability or nontaxability upon the footing of the rights and liabilities
of the parties being different from what in law they are,
then I entirely dissent from such a doctrine."
655
In Bank of Chettinad Ltd. v. Commissioner of Income-tax('),
the Judicial Committee of the Privy Council observed at p. 526:
"Their Lordships think it necessary once more to
protest against the suggestion that in revenue cases "the
substance of the matter" may be regarded as distinguished from the strict legal position."
This Court in a recent judgment in Commissioner of Income-tax
v. Motors & General Stores (P) Ltd. (2 ) observed at p. 699 :
"In the absence of any suggestion of bad faith or
fraud the true principle is that the taxing statute has to
be applied in accordance with the legal rights of the
parties to the transaction. Then the transaction is embodied in a document the liability to tax depends upon
the meaning and content of the language used in accordance with the ordinary rules of construction."
The taxing authority is entitled, and is
indeed bound, to
determine the true legal relation resulting from a transaction. If
the parties have chosen to conceal by a device the legal relation,
it is open to the taxing authorities 10 unravel the device and to
determine the true character of the relationship.
But the legal
effect of a transaction cannot be displaced by probing into the
"substance of the transaction".
This principle applies alike to
cases in which the legal relation is recorded in a formal docnment, and to cases where it has to be gathered from evidence--
oral and documentary-and conduct of the parties to the transaction. The observations mad.e by Bose, J., in Sir Kikabhai Premchand v. Commissioner of lncome-tax(')-
"It is well recognised that in revenue cases regard
must be had to the substance of the transaction rather
than to its mere form. In the present case disregarding
technicalities it is impossible to get away from the fact
that the business is owned and run by the assessee himself.
In such circumstances we are of opinion that it
is wholly unreal and artificial to separate the business
(1)
8 T.T.R. 522.
(2) 66 T.T.R. 692.
(3) 24 I.T.R. 506.
656
SUPREME COURT REPORTS
[ 1969) I S.C.R.
from its owner and treat them as if they were separate
entities trading with each other and then by means of a
fictional sale introduce a fictional profit which in truth
and in fact is non-existent.",
cannot be read as throwing any doubt on the principle that the
true legal relation arising from a transaction alone determines the
taxability of a receipt arising from the transaction. The observation is casual; it was not necessary for the purpose of the case.
and was apparently recorded without any debate on the question.
In Sir Kikabhai Premchand's case(') a
dealer
in
silver
and
shares withdrew some silver bars and shares of the business and
settled them upon certain trust of which he was the Managing
Trustee.
In his books of account he credited the business with
the cost price of the bars and shares so withdrawn. The Income
tax authorities sought to bring to tax the difference between the
cost price of the assets withdrawn and their market value at the
date of withdrawal from the business.
It was held by this Court
that no income arose to the assessce as a result of the tra11sfcr
of shares and silver bars to the trustees, since tl1ere
could
be
no trading by the assessce with himself.
The legal effect of the
transaction in Sir Kikabhai's case(') was not to effect a sale or
transfer of the business assets from one person to another.
In the pm-sent cas" the machinery of the factory belonging to
the firm was transferred to the private limited company.
Assuming that thereby readjustment of the business relationship was
intended, the liability to be taxed in respect of the rcadjllstment
had to be determined according to the strict legal form of the
transaction.
111e Company was a legal entity distinct from the
partnership under tpe general law. Transfer of the machinery was
by the finn to the company; and the legal effect of the traHSaction
was to convey for consideration tl1e rights of tho firm
in
the
machinery to the company.
The transaction resulted in excess
realization over the written down value of the machinery to the
firm, and the liability to tax if any arising under the Act could
not be avoided merely because in consequence of the transfer the
interest of the partners in the machinery was substituted by an
interest in the shares of the company which owned the machinery.
Counsel for the as.scsscc also contended that where a transfer
of the assets is effected with a \~CW to close down the business,
no taxable profits result, because the transfer is not in the course
of business of the assessee.
This Court held in Commissioner of
Income-tax v. West Coast Chemical & Industries Ltd.(')
that
where the business is sold as a going concern and the sale of the
assets is a realisation sale, the difference between the written down
value and the price attributable to th: assets which were admitted
(I) 24 I. T. R. 506.
(2)
46 1.T.R. IJ5
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C.I.T. V. KHARWAR (Shah, J.)
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to depreciation is not taxable under s. 10(2) (vii) proviso (ii)
as it stood enacted before it was amended by Act 67 of 1949. In
the present case the Tribunal has recorded no finding that the
transfer was "a realization sale" or in the course of winding up
of the business.
The observations made by the Revenue authorities suggest that only the manufacturing side of the bnsiness
was closed and not the business of purchasing and selling the
cloth. The High Court observed that it was not possible to say
that the entire business carried on by the firm at Surat, namely,
the manufacturing of art silk cloth and sale thereof, was not taken
over by the Company. We do not propose to express any opinion
on the correctness of that view, for, in our judgment, by virtue
of the amendment made in s. 10(2) (vii) proviso (ii) of the
Indian Income-tax Act, 1922, by s. 11 of the Taxation Laws
(Extension of Merged States and Amendment) Act 67 of 1949.
even under a "realization sale" excess over the written down value
not exceeding the difference between the original cost and the
written down value is liable to be brought to tax. In the West
Coast Chemical & Industries Ltd.'s case(') income received in
the accounting year ending April 30, 1944, was sought to be
bronght to tax and the second proviso to s. 10(2) (vii) in the
relevant assessment year read as follows :
"Provided further that where the amount for which
any such machinery or plant is sold, exceeds the written
down value, the excess shall be deemed to be profits of
the previous year in which the sale took place :"
Clause (vii) and the second proviso were amended by Act 8 of
1946, and further amended by Act 67 of 1949. The relevant
part of cl. (vii) of s. 10(2) which falls to be construed in the
present case reads as follows :
"Such profits or gains shall be computed after making
the following allowances, namely :-
(vii) in respect of any such buildings, machinery or
plant which has been sold or discarded or
demolished or destroyed, the amount by which
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the written down value thereof exceeds the
amount for which the building, machinery or
plant, as the case may be, is actually sold or its
scrap value :
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Provided
Provided further that where the aniount for
which any such ~milding, .machinery or plant is
sold, whether dunng the continuance of the busi-
-cc----c-c~-~----
• (I) 46 LT.R. 135.
SU'REME COCRT REPORTS
[ 1969] I S.C.R·
ness or after the cessation thereof, exceeds tlv!
written down value, so much of the excess as does
not exceed the difference between the original
cost and the written down value shall be deem-·
ed to be profits of the previous year in which the
sale took place:•·
In Cqmmissio11er of Income-tax v. Ajax Products Ud.(1)
this
·Court observed that under the Act before it was amended by
Act 67 of 1949, three conditions had to be satisfied: (i) during
the entire previous year or a part thereof, the
business
shoulu
have been carried on by the assessee; (ii) the building, machinery
or plant should have been used in the business; and
(iii)
the
building, machinery or plant should have been sold when the
business was being carried on and not for the purpose of closing it
down or winding it up; but by the insertion of the words "whether
during the continuance of the business or af1er
the
cessation
thereof' in the proviso by the amend1m:nt of 1949, the third condition for the exigibility of the excess to tax was removed.
The
Court observed that if during the entire previous year or a pan
thereof the business was carried on by the assessee and the building, machinery or plant was used in the business, the excess over
the written down value was liable to tax by virtue of the second
proviso to s. I 0 ( 2) (vii), even though the sale took place in the
year of account after the closure of the business.
If since the
amendment of the proviso, liability to pay tax on th~ excess over
the written down value arises. whether the sale of builJing, machinery or plant is before or after the closure of the business, it would
be illogical to say that the excess is not taxable if the sale is for
the closing down or in the course o! winding up of the busincs>.
The pica that the sale was in the course of realization of assets
of the business and on that account the excess over the
written
down value was not taxable cannot be accepted.
But counsel for the as.sessce is right in contending that the
Tribunal has recorded no finding whether the transfrr was of the
nature of a sale, and on the materials on the record no answer
to the question submitted by the Tribunal can be recorded.
By
s. 10(2) (vii) proviso (ii) excess over the written down value,
subject to the maximum prescribed thereby, may be brought to
charge to tnx only if the building. machinery or pbnt is
sold.
This Court pointed out in Conunis.rioncr af Income-lax v. R. R.
Ranwkrish11a Pillai(') that a transaction
by which
a
person
carrying on business transfers the assets of that business to another assessable entity may take different forms and may have
·different legal effects.
TI1c assets of a business may be sold at a
(I) [t965j I S.C.R. 71~>.
<2)
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fixed price to a company promoted by a person who carried on
the business if the price paid for or attributable to
an asset
exceeds the written down value of the asset proviso (ii) to s. 10(2)
(vii) of the Indian Income-tax Act, 1922, would ex facie be
attracted. Where the person carrying on the business transfers
the assets to a company in consideration of allotment of shares,
it would be a case of exchange, and not of sale, and the true
nature of the transaction will not be altered, because
for
the
purpose of stamp duty or other reasons the value of the assets
transferred is shown as equivalent to the face value of the shares
allotted. A person carrying on business may agree with a company that the assets belonging to him shall be transferred to the
company for a certain money consideration and that in satisfaction
of the liability to pay that money consideration, shares of a certain
face value shall be allotted to him. In that case there are in
truth two transactions--one a transaction of sale and the other
a contract under which the shares are allotted in satisfaction of
the liability to pay the price.
The Court further observed that
s. 10 ( 2) (vii) proviso (ii) , on the plain terms used therein, is
attracted if there be a sale of the building, machinery or plant
and the amount for which the sale takes place exceeds the written
down value of the assets transferred. If there be no sale, the
proviso has no application.
-
In the absence of a clear finding by the Tribunal that there
was a sale of the machinery by the firm to the company which
resulted in excess realization of Rs. 40, 7 43 over the written down
value, it is impossible to answer the question which has been
referred.
We, therefore, discharge the answer recorded by the
High Court. It will be open to the Tribunal to re-hear the parties
under s. 66 ( 5) of the Income-tax Act and to record clear findings
in the light of the observations made in this judgment.
The appeal is allowed. There will be no order as to costs
in this Court and in the High Court.
Y.P.
Appeal allowed.
13 Sup. C.l./68-11