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Quashing the gift-tax assessment: Transfer of shares

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Court :
Supreme Court

Brief :
The facts: The assessee, being the owner of 6000 fully paid up equity shares executed a deed of revocable transfer in favour of M/s Yogesh Chandra and Brothers Associates Under the deed, the assessee could, on completion of 74 months from the date of transfer but before the expiry of 82 months from the said date, exercise the power of revoking the gift.- The deed of revocable transfer specifically stated that the gift shall not include any bonus shares or right shares coming to the transferee from(the company),therefore, only a gift of 6000 equity shares was made by the assessee to the transferee.- The company issued bonus shares and since the transferee was a holder of the gifted equity shares, 4000 bonus shares of the said company were allotted tothe transferee. Another 10,000 bonus shares were allotted to the transferee by the company.Thereafter, during the window of eight months, the assessee revoked the gift with the result that the 6000 shares gifted to the transferee came back to the assessee. - Gift Tax Officer passed an assessment order and held that the revocable transaction entered into by the assessee was only for the purpose of reducing the tax liability. - Assessee preferred an appeal before the Commissioner of Gift Tax but found no success.- assessee then preferred a further appeal to the Tribunal - it was held that if the assessee “does not exercise an option to revoke the gift within the provided for period of 82 months, then at that point of time also, there will be a further valuation of the residuary interest….”. - Tribunal, the Revenue took up the matter in appeal before the Punjab & Haryana High Court. - Appeal dismissed - contn....

Citation :
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3914 OF 2010 Satya Nand Munjal …..Appellant Versus Commissioner of Gift Tax …..Respondent WITH CIVIL APPEAL NO. 3915 OF 2010

REPORTABLE
 
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3914 OF 2010
 
Satya Nand Munjal …..Appellant
Versus
Commissioner of Gift Tax …..Respondent
 
WITH
CIVIL APPEAL NO. 3915 OF 2010
 
JUDGMENT
 
Madan B. Lokur, J.
 
1. Civil Appeal No. 3914/2010 (Assessee: Satya Nand Munjal) and Civil Appeal No. 3915/
2010 (Assessee: Om Prakash Munjal) arise out of G.T.A. No. 3/2001 and G.T.A. No. 2/2001
respectively both decided by the High Court of Punjab & Haryana on 17th December,
2008. The relevant Assessment Year is 1989-90.
 
2. At the instance of the Revenue, the High Court was called upon to decide the following
common substantial question of law:-
 
“Whether, on the facts and in the circumstances of the case, the ITAT was right in law in
quashing the gift-tax assessment in the assessee’s case.”
 
3. The High Court set aside the order of the Income Tax Appellate Tribunal (the Tribunal)
and held in favour of the Commissioner of Gift Tax by upholding the assessment order. It is
in these circumstances that the assessee is now before us.
 
4. For convenience, we refer to the facts in the case of Satya Nand Munjal.
 
The facts:
 
5. On 20th February 1982 the assessee, being the absolute owner of 6000 fully paid up
equity shares of the face value of Rs. 25 each of M/s Hero Cycles (P) Ltd. executed a deed of
revocable transfer in favour of M/s Yogesh Chandra and Brothers Associates (the transferee).
Under the deed, the assessee could, on completion of 74 months from the date of transfer but
before the expiry of 82 months from the said date, exercise the power of revoking the gift. In
other words, the assessee left a window of 8 months within which the gift could be revoked.
 
6. The deed of revocable transfer specifically stated that the gift shall not include any bonus
shares or right shares received and/or accruing or coming to the transferee from M/s Hero
Cycles (P) Ltd. (the company) by virtue of ownership or by virtue of the shares gifted by the
assessee and standing in the name of the transferee. Effectively, therefore, only a gift of 6000
equity shares was made by the assessee to the transferee.
 
7. On 29th September 1982 the company issued bonus shares and since the transferee was
a holder of the gifted equity shares, 4000 bonus shares of the said company were allotted to
 
the transferee. Similarly, on 31st May 1986 another 10,000 bonus shares were allotted to the
transferee by the company.
 
8. Thereafter, during the window of eight months, the assessee revoked the gift on 15th June
1988 with the result that the 6000 shares gifted to the transferee came back to the assessee.
 
However, the 14,000 bonus shares allotted to the transferee while it was the holder of the
equity shares of the company continued with the transferee.
 
Assessment proceedings for AY 1982-83:
 
9. For the Assessment Year 1982-83, the Gift Tax Officer passed an assessment order on
17th February 1987 in respect of the assessee. He held that the revocable transaction entered
into by the assessee was only for the purpose of reducing the tax liability. As such, it could
not be accepted as a valid gift. For arriving at this conclusion, the assessing officer relied
upon McDowell & Co. v. Commercial Tax Officer, [1985] 154 ITR 148. Accordingly, the
assessing officer, while holding the gift to be void, made the assessment on a protective basis.
 
10. Feeling aggrieved by the assessment order, the assessee preferred an appeal before the
Commissioner of Gift Tax (Appeals) but found no success. The Commissioner of Gift Tax
(Appeals), however, held that since the gift was void, a protective assessment could not be
made.
 
11. The assessee then preferred a further appeal to the Tribunal and by its order dated 23rd
August 1991 allowing the appeal; the Tribunal held the revocable gift to be valid. It was
noted that the concept of a revocable transfer by way of gift is recognized by Section 6(2) of
the Gift Tax Act, 1958 (the Act). The value of the gift in such a case was to be calculated in
terms of Rule 11 of the Gift Tax Rules, 1958.
 
12. Although the decision was rendered by the Tribunal after the gift had been revoked by the
assessee, it was held that if the assessee “does not exercise an option to revoke the gift within
the provided for period of 82 months, then at that point of time also, there will be a further
valuation of the residuary interest….”.
 
13. Feeling aggrieved by the decision of Tribunal, the Revenue took up the matter in appeal
before the Punjab & Haryana High Court. By its judgment and order in Commissioner of
Gift-tax v. Satya Nand Munjal, [2002] 256 ITR 516 the High Court dismissed the appeal and
held:
 
“It is a legitimate attempt on the part of the assessee to save money by following a legal
method. If on account of a lacuna in the law or otherwise the assessee is able to avoid
payment of tax within the letter of law, it cannot be said that the action is void because it is
intended to save payment of tax. So long as the law exists in its present form, the taxpayer
is entitled to take its advantage. We find no ground to accept the contention that merely
because the gift was made with the purpose of saving on payment of wealth-tax, it needs to
be ignored.”
 
14. The position as it stood, therefore, was that the revocable gift made by the assessee was
held to be a valid gift and the assessee was liable to pay gift tax on the value of the gift as
determined under Rule 11 of the Gift Tax Rules, 1958.
 
Assessment proceedings for AY 1989-90:
 
15. All of a sudden, on 30th January 1996 the Gift Tax Officer issued a notice to the assessee
under Section 16(1) of the Act to the effect that for the Assessment Year 1989-90 the gift
made by the assessee was chargeable to gift tax and that it had escaped assessment for that
Assessment Year. The assessee responded to the notice by simply stating that there is no gift
that had escaped assessment.
 
16. On 24th March 1998 the assessing officer passed a reassessment order for the Assessment
Year 1989-90. While doing so, he framed two issues for consideration: firstly, whether
the transferee becomes the owner of the bonus shares particularly because the shares have
been received by it as a result of a revocable transfer; secondly, whether the bonus shares
received by the transferee could be described as a benefit derived by the transferee from the
transferred shares.
 
17. The assessing officer held that the transferee does not become the owner of the gifted
shares until the transfer is an irrevocable transfer. Proceeding on this basis, it was held that
the 14,000 bonus shares allotted to the transferee were a part and parcel of the gifted shares
and the assessee only took back 6000 shares from the transferee pursuant to the revocable
gift. Consequently, it was held that the assessee had surrendered his right to get back 14,000
bonus shares which were treated as a gift by the assessee to the transferee in view of the
provisions of Section 4(1)(c) of the Act. The assessee was taxed accordingly.
 
18. Feeling aggrieved by the reassessment order, the assessee preferred an appeal to
the Commissioner of Gift Tax (Appeals). By his order dated 8th September 1998 the
Commissioner held that since there was no regular transfer of the bonus shares, the transferee
could not claim any ownership of the shares. In fact he was only a trustee of the assessee in
respect of the bonus shares. The Commissioner also referred to McDowell & Co. And held
that the assessee had carefully planned his affairs in such a manner as to deprive the Revenue
of a substantial amount of gift tax. The reassessment order was accordingly upheld.
 
19. The assessee then took up the matter with the Tribunal which held in its order dated 23rd
May 2000 that in view of the assessment to gift tax made in respect of the assessee for the
Assessment Year 1982-83, the notice issued under Section 16(1) of the Act was merely a
change of opinion and, as such the reassessment proceedings could not have been taken up.
On the merits of the case, it was noted that neither the dividend income on the bonus shares
nor their value had been taxed in the hands of the assessee. Consequently, the assessee was
liable to succeed on the merits of the case also. The gift tax reassessment was accordingly
quashed by the Tribunal.
 
20. The Revenue then came up in appeal before the High Court with the substantial question
of law mentioned above.
 
21. In the impugned order, the High Court held that the assessee was liable to gift tax on the
value of the bonus shares which were a gift made by the assessee to the transferee. It was
held that the bonus shares were income from the original shares by relying upon Escorts
Farms (Ramgarh) Ltd. v. Commissioner of Income Tax, [1996] 222 ITR 509. Accordingly,
the order of the Tribunal was set aside and the reassessment order upheld.
 
Discussion and conclusions:
 
22. Although learned counsel for the assessee seriously doubted the correctness of the
impugned judgment and order on several grounds, we find that it is not necessary for us to go
into all the issues raised by him.
 
23. The fundamental question before the High Court was whether there was in fact a gift of
14,000 bonus shares made by the assess to the transferee. The answer to this question lies in
the interpretation of Section 4(1)(c) of the Act which reads as follows :-
 
“Gifts to include certain transfers.
 
4. (1) For the purposes of this Act,-
 
(a) xxx
(b) xxx
(c) where there is a release, discharge, surrender, forfeiture or abandonment of any debt,
contract or other actionable claim or of any interest in property by any person, the value
of the release, discharge, surrender, forfeiture or abandonment to the extent to which it has
not been found to the satisfaction of the Assessing Officer to have been bona fide, shall be
deemed to be a gift made by the person responsible for the release, discharge, surrender,
forfeiture or abandonment; (d) to (e) xxx”
 
24. A perusal of the impugned judgment and order facially indicates that there has been
no consideration of the provisions of Section 4(1)(c) of the Act. From the rather elaborate
narration of facts, it is quite clear that the assessee had made a valid revocable gift of 6000
equity shares in the company on 20th February 1982 to the transferee. This is a finding of fact
conclusively determined by the High Court in the assessee’s own case.
 
25. The only event that took place in the previous year relevant to the Assessment Year 1989-
90 was the revocation of the gift by the assessee on 15th June 1988. Was this event enough
for the Gift Tax Officer, in 1996, to re-open the assessment for the year 1989-90, while
keeping in mind the fact that bonus shares were allotted to the transferee on 29th September
1982 and 31st May 1986? It is possible, on an interpretation of Section 4(1)(c) of the Act to
answer this question either way, but unfortunately the High Court did not even notice this
provision of the Act. Of course, the submission of learned counsel for the assessee is that on
an interpretation of Section 4(1)(c) of the Act, it cannot be said by any stretch of imagination,
that the assessee had made a gift of 14,000 bonus shares to the transferee in the previous year
relevant to the Assessment Year 1989-90.
 
26. However, we are not inclined to decide this issue finally since we do not have the view of
the High Court on the interpretation of Section 4(1)(c) of the Act. Nor do we have the view
of the High Court on the applicability or otherwise of the principle laid down in McDowell &
Co.
 
27. As far as the applicability of Escorts Farms is concerned, the question that arose for
consideration in that case was the determination of the cost of acquisition of the original
shares when bonus shares are subsequently issued. That is the second part of Section 4(1)(c)
of the Act and that question would arise (if at all) only after a finding is given by the High
Court on the first part of Section 4(1)(c) of the Act. But, as we have noted above, the High
Court has not considered the interpretation of Section 4(1)(c) of the Act.
 
28. Under the circumstances we have no option but remand the matter for de novo
consideration by the High Court keeping in mind the provisions of Section 4(1)(c) of the Act
as well as the orders passed in the case of the assessee for the Assessment Year 1982-83. We
do so accordingly.
 
29. In view of the above, both the Civil Appeals are allowed and the impugned judgment and
order of the High Court is set aside but without any order as to costs.
 
30. We make it clear that the parties are entitled to raise all contentions before the High Court
and are at liberty to file additional documents, if necessary.
 
….…….……………………..J.
(D.K. Jain)
 
….…….……………………..J.
(Madan B. Lokur)
 
New Delhi;
January 22, 2013 
 

Praveen Sharma
on 12 April 2013
Published in Income Tax
Views : 1996
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