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1997 DIGILAW 1394 (MAD)

Commissioner of Gift Tax v. S. Naganathan

1997-11-28

N.V.BALASUBRAMANIAN, P.THANGAVEL

body1997
Judgment :- N.V. BALASUBRAMANIAN, J. In pursuance of the directions of this court in T. C. P. Nos. 446 and 447 of 1983, dated January 9, 1984, the Appellate Tribunal has referred the following question of law for our consideration: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the Income-tax Officer was not justified in adding the difference between the fair market value of the shares and the consideration received as deemed gift under section 4(1)(a) of the Gift-tax Act, 1958 ?" The matter arises under the Gift-tax Act and relates to two assessment years, namely, 1972-73 and 1973-74. The assessee during the course of the previous year relevant to the assessment year 1972-73 sold fifty equity shares in Haritha Private Limited for a sum of Rs. 61, 808 apart from four shares gifted by him. The Gift-tax Officer, however, determined the value of the shares at Rs. 4, 577.94 per share based on the break-up value worked out by substituting the fair market value of Rs. 26, 92, 400 for land and buildings estimated by the District Valuation Officer of its Department in the reference made under section 15(6) of the Gift-tax Act, 1958 (hereinafter to be referred to as "the Act"), for the balance-sheet figure of Rs, 6, 07, 348 for the land and buildings as on September 30, 1971. The Gift-tax Officer adopted the market value of the land and buildings and determined the value of the shares transferred by way of gift as well as sale which came to Rs. 2, 47, 209 as against nil consideration in money's worth in respect of four shares gifted and a consideration of Rs. 61, 808 in respect of fifty shares sold. The Gift-tax Officer, accordingly, computed the chargeable gift at Rs. 1, 85, 401 comprising direct gifts of Rs. 18, 312 and deemed gift under section 4(1)(a) of the Act of Rs. 1, 67, 089. After deducting a sum of Rs. 4, 880 which was admitted as gift, the Gift-tax Officer added the difference of Rs. 1, 80, 521 and completed the assessment for the assessment year 1972-73. 1, 85, 401 comprising direct gifts of Rs. 18, 312 and deemed gift under section 4(1)(a) of the Act of Rs. 1, 67, 089. After deducting a sum of Rs. 4, 880 which was admitted as gift, the Gift-tax Officer added the difference of Rs. 1, 80, 521 and completed the assessment for the assessment year 1972-73. For the assessment year 1973-74, the assessee sold seventy-three shares held in Haritha Private Limited and the Gift-tax Officer computed the deemed gift following the same process adopted for the earlier assessment year and determined the deemed gift under section 4(1)(a) of the Act at Rs. 2, 40, 165 and completed the assessmentThe assessee went on appeals to the Appellate Assistant Commissioner of Gift-tax for the assessment year 1972-73 and to the Commissioner of Income-tax (Appeals) for the assessment year 1973-74. The Appellate Assistant Commissioner as well as the Commissioner (Appeals) held that the market value of the shares could not have been higher than the price at which the shares were sold or the value for which they were gifted away. They also found that the procedure adopted by the Gift-tax Officer for valuation of the immovable property separately and then valuing the individual shares was not correct and in this view of the matter, the Appellate Assistant Commissioner and the Commissioner (Appeals) held that the provisions of section 4(1)(a) of the Act were not attracted to the facts of the case The Revenue carried the matter by way of appeals before the Income-tax Appellate Tribunal. The Appellate Tribunal in a lengthy order found that the best evidence of the fair market value is the price of the shares at which the shares were purchased or sold. He noticed the working adopted by the assessee in the original assessment and the working adopted by the Department as under Assessee's working accepted in the original assessment Valuation of shares as on September 30, 1971, assessment year 1972-73 Rs. Rs Break-up Capital "paid up" 6, 00, 000 Reserves 61, 709 6, 61, 709 Capitalisation of profits Year ended : 30-9-1967 67, 834 30-9-1968 59, 567 30-9-1969 66, 725 30-9-1970 1, 14, 848 30-9-1971 88, 577 3, 97, 551 Maintainable profits 1/5th of Rs. Rs Break-up Capital "paid up" 6, 00, 000 Reserves 61, 709 6, 61, 709 Capitalisation of profits Year ended : 30-9-1967 67, 834 30-9-1968 59, 567 30-9-1969 66, 725 30-9-1970 1, 14, 848 30-9-1971 88, 577 3, 97, 551 Maintainable profits 1/5th of Rs. 3, 97, 551 79, 510 79, 510 x 100 Capitalised value : ------------------------------- = 8, 83, 444 9 15, 45, 153 15, 45, 153Average : ---------------------------- = 7, 72, 576.50 2 or say : 7, 72, 577 7, 72, 577 Value of each share ---------------------- = 1, 288 600 Department's working in the reassessment Rs. Rs Paid up capital 6, 00, 000 Reserves 61, 709 6, 61, 709 Value of land and buildings 26, 92, 400 Less: Book value 6, 07, 348 20, 85, 052 Value of 600 equity shares 27, 46, 761 Value of each share 27, 46, 761 -------------------- = 4, 577.94 600 The Tribunal found that there have been many transactions between the members of the family with reference to the shares as between them and the Union Motors Company Private Limited and all the transactions were at Rs. 1, 288 per share and in this view of the matter, the Tribunal came to the conclusion that the price paid is the real price in the absence of a suggestion that there was any collusion or the transactions were below the market value. The Tribunal, therefore, held that there was no warrant for assuming that the market value would be higher than the sum of Rs. 1, 288 per year which was the price when the shares were sold by the assessee. The Tribunal also found that the valuation of the shares was done in consequence of the Board's Circular No. 2(WT) of 1967 (see [1973] 92 ITR(St) 2), dated October 31, 1967, and when the assessee adopted a recognised method of valuation of shares, it is not open to the Revenue to substitute the book value of the assets for the market value of the shares. It also found that the method adopted was to find out the average of the break-up valuation of shares as per the balance-sheet and the capitalised value of shares on the basis of maintainable profits and it is only on the basis of the Board's circular, the valuation had been done by the assessee with reference to the shares sold by him. The Tribunal also held that the Board Circular No. 2(WT) of 1967 (see [1973] 92 ITR(St) 2), dated October 31, 1967, would equally apply for the proceedings under the Gift-tax Act and, therefore, the Tribunal came to the conclusion that the value at which the shares were sold by the assessee was correct and when the assessee adopted one method of valuation to value the shares, it is not open to the Assessing Officer to adopt another method in valuing the shares for the purpose of reassessment. The Tribunal, however, upheld the question of jurisdiction of the Assessing Officer in so far as the assessment year 1973-74 is concerned as it was a case of reassessment under section 16(b) of the Act. In this view of the matter, the Appellate Tribunal dismissed the appeals preferred by the Revenue though it upheld the question of jurisdiction of the Gift-tax Officer to reopen the assessmentsMr. C. V. Rajan, learned counsel for the Revenue, submitted that under the provisions of the Gift-tax Act, the valuation of the shares have to be done on the basis of the market value of the shares and there are no rules framed under the Act to determine the value of the shares held by the assessee in a company which is admittedly an investment company and in the absence of any statutory rule, the Gift-tax Officer will be only guided by the provisions of section 6 of the Act and it is open to the Gift-tax Officer to depart from the value shown in the balance-sheet of the company and to substitute the market value of the assets instead of the book value as shown in the balance-sheet. He, therefore, submitted that when the difference between the two values is so great, it is open to the Gift-tax Officer to adopt the market value of the assets and, therefore, the Appellate Tribunal was not correct in holding that the average between the yield method and the break-up method should be adopted. He further submitted that in so far as the assessment year 1972-73 is concerned, it is a case of original assessment and the Tribunal earlier applied the principles which are applicable for reassessment to the gift in the original assessment as well. He further submitted that in so far as the assessment year 1972-73 is concerned, it is a case of original assessment and the Tribunal earlier applied the principles which are applicable for reassessment to the gift in the original assessment as well. He also submitted that the Board's circulars made for the Wealth-tax Act are not applicable to the provisions of the Gift-tax Act and, therefore, the Gift-tax Officer was justified in valuing the land and buildings at the market value Mr. Janarthana Raja, learned counsel for the assessee, on the other hand, submitted that the assessee had valued the shares according to the method authorised by the Board though the circular was withdrawn subsequently and there is no reason to presume that there was any understatement and where the stated consideration of the assessee was justified on the basis of the recognised method of valuation, the value at which the shares were sold would represent the fair market valueWe have carefully considered the rival submissions of learned counsel for the respective parties. Mr. C. V. Rajan, is justified by his submission that the assets for the purpose of gift-tax should be valued at the fair market value under the provisions of section 6 of the Act and in the absence of any statutory rule, nothing forbids the Gift-tax Officer to value the shares to determine the correct fair market value of the shares on the date of transfer. However, it is significant to notice that the assessee had valued the shares on the basis of a circular issued by the Central Board of Direct Taxes in Circular No. 2(WT) (see [1973] 92 ITR(St) 2), dated October 31, 1967. The said circular in so far as it is relevant for the purpose of this case, reads as under (see [19731 92 ITR(St) 2). "Unquoted equity shares of investment companies other than those which are substantially holding companies.---An 'investment company' has been defined in rule 1A(g) of the Wealth-tax Rules, 1957, as a company whose total income consists mainly of income which, if it had been the income of an individual, would be regarded as unearned income. Unearned income means all income other than 'earned income' as defined in the Finance Act of the relevant year. Unearned income means all income other than 'earned income' as defined in the Finance Act of the relevant year. Although the definition of investment company would not cover a banking/insurance company, but to avoid all doubts in the matter, it is clarified that banking and insurance companies will not be treated as investment companies. Their shares will be valued under rule 1D of the Wealth-tax Rules, 1957. The average of (a) the break-up value of the shares based on the book value of the assets And liabilities disclosed in the balance-sheet, and (b) the capitalised value arrived at by applying a rate of yield of 9 per cent. of its maintainable profits, will be taken to represent the fair market value of the shares of an investment company. Maintainable profits of a company should be calculated as under(i) The book profits of the company for the five years immediately preceding the valuation date will be ascertained (ii) Adjustments will be made to the book profits of each of the said five years for all non-recurring and extraordinary items of income and expenditure and losses (iii) Adjustments will be made for expenditure, which is not of a revenue nature and is debited in the accounts and for receipts, which are revenue receipts, and are not accounted for in the profit and loss account (iv) The development rebate, in case it is debited in the books of account, will be added back (v) The appropriate tax liability of the company on the book profits so determined will be deducted (vi) The profits required for paying dividends on shares with prior rights, i.e., preference shares, shall be excluded (viii) The average of the company's book profits as adjusted above, will be determined The maintainable profits thus arrived at will be capitalised, as stated above, by adopting 9 per cent. rate of capitalisation." The Board subsequently issued another circular dated September 15, 1973 (see [1973] 92 ITR(St) 1), modifying some of the original instructions found in the earlier circular. The relevant portion of the subsequent circular dated September 15, 1973, reads as under: "In arriving at the estimated price which a share of such company would fetch if sold in open market on the relevant valuation date, its 'asset backing' must be carefully computed, in accordance with well-settled principles. The relevant portion of the subsequent circular dated September 15, 1973, reads as under: "In arriving at the estimated price which a share of such company would fetch if sold in open market on the relevant valuation date, its 'asset backing' must be carefully computed, in accordance with well-settled principles. In other words, the valuation should take into account the complete enterprise consisting of the parent investment company and its wholly owned subsidiary or subsidiaries as if they were only one company. In arriving at such computation, the reserves of the subsidiary company must necessarily be taken into account." The assessee undoubtedly valued the shares in accordance with the circulars of the Board by adopting the average of the break-up value of the shares based on the book value of the assets and liabilities disclosed in the balance-sheet, and the yield method on the basis of the maintainable profits. The company is undoubtedly an investment company. When the assessee had valued the shares on the basis of the circular issued by the Central Board of Direct Taxes, it can easily be said that the valuation of the shares made by the assessee was in accordance with a recognised method of valuation. In addition, it is also relevant to notice that the Board has merely modified the earlier circular after the decision of the Supreme Court in CWT v. Mahadeo Jalan which was decided by the Supreme Court on September 13, 1972, before the issue of the clarificatory circular on September 15, 1973 (see [1973] 92 ITR(St) 1). The fact that the Board has issued a circular retaining its earlier circular dated October 31, 1967 (see [1973] 92 ITR(St) 2), even after the decision of the Supreme Court in Mahadeo Jalan's case clearly shows that the circular was in force during the previous year relevant to the assessment year in question. The mere fact that the circulars were issued under the Wealth-tax Act would not prevent their application for the determination of valuation of the shares under the Gift-tax Act, as courts have taken the view that the principles adopted under the Wealth-tax Act to determine the value of an asset can equally be applied for the determination of the value of the asset for the gift-tax as well. The rules regarding valuation of shares under the provisions of the Gift-tax Act came into force only by the Direct Tax Laws (Amendment) Act, 1989, with effect from April 1, 1989, and prior to the introduction of the rules, the assessee had to value the shares on the basis of the circulars issued by the Central Board of Direct Taxes. The Board has issued the circular only with a view that there should be an uniform method of valuation in the valuation of shares. No doubt, it is open to the Gift-tax Officer or the Wealth-tax Officer to depart from the circulars issued by the Board where the difference between the market value determined according to the Board's circulars is so swelling and the value returned did not really reflect the fair market value of the shares and in the absence of any finding by the Gift-tax Officer to that effect, we are of the view that the Tribunal has come to the correct conclusion in holding that the value returned by the assessee cannot be stated to be inadequate to attract the provisions of section 4 of the Act. In this regard, the decision of the Gujarat High Court in Rajan Ramkrishna v. CWT, would also apply to the facts of the caseFurther, this court in CGT v. Indo Traders and Agencies (Madras) P. Ltd. was dealing with the question of applicability of section 4(1)(a) of the Act and held that the following test should be fulfilled to attract section 4(1)(a) of the Gift-tax Act "The investigation to be made under section 4(1)(a) of the Gift-tax Act, 1958, can only be to see whether there is any attempt at evasion of tax or whether the relevant transaction is bona fide. If the consideration which passed between the parties can be considered to be reasonable or fair, it cannot be considered to be inadequate. Adequate consideration is not necessarily what is ultimately determined by some one else as market value. If the consideration which passed between the parties can be considered to be reasonable or fair, it cannot be considered to be inadequate. Adequate consideration is not necessarily what is ultimately determined by some one else as market value. Unless the price was such as to shock the conscience of the court, it would not be possible to hold that the transaction is otherwise than for adequate consideration." Therefore, where the consideration which passed between the parties is fair and reasonable and it was done adopting a prescribed method of valuation and the price found did not shock the conscience of the final fact-finding authority, namely the Tribunal, it is not possible for us to hold that the transaction was made otherwise than for adequate consideration. Therefore, we hold that the Appellate Tribunal was right in holding that the provisions of section 4(1)(a) of the Act are not attracted to the facts of the case The question of law referred to us, in our opinion, should be reframed and accordingly, we reframe the question of law for both the assessment years as follows: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the provisions of section 4(1)(a) of the. Gift-tax Act, 1958, are not attracted to the facts of the case?" Accordingly, we answer the question of law as reframed by us in the affirmative and against the Revenue. However, in the circumstances, there will be no order as to costs.