M/s. Patnaik and Co.Ltd. Vs. The Commissioner of Income Tax, Orissa
EmailAppeal: Civil Appeal No. 1359 (NT) of 1974.
Petitioner: M/s. Patnaik and Co.Ltd.
Respondent: The Commissioner of Income Tax, Orissa
Apeal: Civil Appeal No. 1359 (NT) of 1974.
Judges: R.S.PATHAK AND SABYASACHI MUKHARJI,JJ.
Date of Judgment: Jul 16, 1986
Head Note:
Income Tax Act – Loss whether Revenue or Capital – Tribunal found sequence of events & close proximity of the investment with the receipt of the Government orders – Investment did not bring in an asset of a capital nature – Assessee sustained loss on disposing of the subscription to the Orissa Government Floated Loan, 1972 – Loss sustained is Revenue Loss – High Court fell into serious error in re-examining the evidence and arriving at its own findings of fact – Appellate Tribunal is the final fact finding authori-ty.
The assessee claimed some loss sustained by it on disposing of its subscription to the Orissa government Floated Loan, 1972. The I.T.O. & the Appellate Assistant Commissioner disal-lowed the loss in the view that it was a capital loss in the view that it was a capital loss. The Tribunal found that the assessee was told that if it subscribed for the Government Loan, preferential treatment would be granted to it in the placing of orders for motor vehicles required by the various Government Departments and to the further benefit of an advance from the Government upto 50% of the value of the orders placed. The Tribunal found that having regard to the sequence of events & the close proximity of the investment with the receipt of Government orders the conclusion was inescapable that the investment was made in order to further business. The Tribunal held that the investment was made by way of commercial expedi-ency for the purpose of carrying on the assessee’s business & therefore the loss suffered by the assessee on the sale of the investment must be regarded as a revenue loss. The High Court took the view that the factual substratum of the case has been misconceived by the Appellate Tribunal and it is, therefore, entitled to re-examined the evidence & arrive at its own find-ings of fact.
Held:
(i) It is now well settled that the Appellate Tribunal is the final fact-finding authority under the Income Tax Act and that the court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appallate older. The court may do so only if there is no evidence- to support them or the Appellate Tribunal has misdirected itself in law in arriving at the find-ings of fact. But even there the court cannot disturb the find-ings cf fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidnce to support them or they are the result of a misdirection in law. (Para 4)
(ii) It difficult to hold that an enduiring benefit wig brouqht about by the assessee investing in the loan. So far is orders from the government departments were concerned the materi-al on record shows that on August 30. 1961 it was decided to purchase 16 Jeeps,8 trucks and 4 one-Tonn pick-up vans. There is nothing to show that there was any reason for the assessee to hold on to the investment in the loan indefinitely. There was no enduring advantage. Accordingly we hold that the investment did not bring in an asset of a capital nature, and that in the cir-cumstances of the case the loss suffered by the assessee was a revenue loss and not a capital loss. (Para 6)
Cases Reffered:
1. India Cements Ltd. v. C.I.T. 60 ITR 52,64.
2. Hazarat Pirmahomed Shah Saheb Roza Committee v. C.I.T. 63 ITR 490, 495-6
3. C.I.T. v. Meenakshi Kills Ltd. 63 ITR 609, 613
4. C.I.T. v. Greaves Cotton & Co. Ltd. 68 ITR 200.
5. C.I.T. v. Madan Gopal Radhey lal 73 ITR 652 656
6. Hoogly Trust Ltd. v. C.I.T. 73 ITR 685,690.
7. C.I.T. v. Imperial Chemical Industries (India) Ltd. 74 ITR 17
8. Aluminium Corpon. of India Ltd. v. C.I.T. 86 ITR 11.
9. C.I.T., Bihar & Orissa v. S.O. Jain 87 ITR 370
10.C.I.T. v. Industry & Commerce Enterprises (P) Ltd. (1979) 110 ITR 606
11. Additional C.I.T., Madras-II v. B.M.S. (P) Ltd. (1979) 119 ITR 321.
12. C.I.T. Tamil Nadu-V v. Dhandayuthapant Foundry (P) Ltd. (1980) 123 ITR 709.
2. Hazarat Pirmahomed Shah Saheb Roza Committee v. C.I.T. 63 ITR 490, 495-6
3. C.I.T. v. Meenakshi Kills Ltd. 63 ITR 609, 613
4. C.I.T. v. Greaves Cotton & Co. Ltd. 68 ITR 200.
5. C.I.T. v. Madan Gopal Radhey lal 73 ITR 652 656
6. Hoogly Trust Ltd. v. C.I.T. 73 ITR 685,690.
7. C.I.T. v. Imperial Chemical Industries (India) Ltd. 74 ITR 17
8. Aluminium Corpon. of India Ltd. v. C.I.T. 86 ITR 11.
9. C.I.T., Bihar & Orissa v. S.O. Jain 87 ITR 370
10.C.I.T. v. Industry & Commerce Enterprises (P) Ltd. (1979) 110 ITR 606
11. Additional C.I.T., Madras-II v. B.M.S. (P) Ltd. (1979) 119 ITR 321.
12. C.I.T. Tamil Nadu-V v. Dhandayuthapant Foundry (P) Ltd. (1980) 123 ITR 709.
JUDGEMENT:
PATHAK, J.:
1. This appeal by special leave is directed against.the judg-ment of the High Court of Oiissa and raises the familiar question whether a loss suffered by the assessee is a capital loss,or a revenue less.
2. The assessee deals in automobiles and also sells spare motor parts. For the assessment year 1963-64, the relevant accounting period being the year ended March 31, 1963, the asses-see claimed a loss of Rs 53,650 sustained by it on disposing of its subscription to the Orissa Government Floated Loan, 1972. It claimed that the loss suffered by it was revenue loss and, there-fore deductible against its profits for the year. The Income Tax Officer disallowed the loss in the view that it was a capital loss. The asszssee’s appeal was dismissed by thei Appellate Assistant Commissioner of Income Tax. But on second appeal the Incom- Tax Appellate Tribunal accepted the contention of the assessee that the subscription to the Government Loan was condu-cive to its business and that the loss arose in the course of the business, and that, therefore, the assessee was entitled to a deduction of the less claimed by it. The Accountant Member and the Judicial Member wrote separate but concurrent orders. At the instance of the revenue the App.-llate Tribunal r@-ferred the case to the High Court of Orissa for its cpinic.n on the follow-ing question of law :
Whether, in the facts and circumstances of the case, the loss of Rs 53,659 sustained by the ass.l.ssee on the sale of the Gcverrment Lean is a capital loss or a revenu- loss ?
3. Disagreeing with the findings of the Appellate Tribunal’ the High Court held that the loss was a capital less and accordingly answered the reference in favour of the revenue and against the assessee.
4. At the outset, we find it necessary to note that the High Court has taken the view that the factual substratum of the case has been misconceived by the Appellate Tribunal and that it is, therefore, entitled to re-examine the evidence and arrive at its own findings of fact. We think the High Court fell into serious error in doing, so. It is now well settled that the Appellate Tribunal is the final fact-finding authority under the Income Tax Act and that the court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate older. The court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriv-ing at the findings of fact. But even there the court cannot disturb the findings cf fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidnce to support them or they are the result of a misdirection in law. There is a long line of cases decided b); tiiis Court laying down this proposi-tion. See India Cements Ltd. v. C.I.T. 60 ITR 52,64., Hazarat Pirmahomed Shah Saheb Roza Committee v. C.I.T. 63 ITR 490, 495-6, C.I.T. v. Greaves Cotton & Co. Ltd. 68 ITR 200, C.I.T. v. Meenakshi Kills Ltd. 63 ITR 609, 613, C.I.T. v. Madan Gopal Radhey lal 73 ITR 652 656, Hoogly Trust Ltd. v. C.I.T. 73 ITR 685,690, C.I.T. v. Imperial Chemical Industries (India) Ltd. 74 ITR 17 and Aluminium Corpon. of India Ltd. v. C.I.T. 86 ITR 11. The High Court has relied on Commissioner of Income-tax, Bihar & Orissa v. S.p. Jain 87 ITR 370, to justify its re-examination of the evidence and to supersede the findings of fact rendered by the Appellate Tribunal by findings of fact reached by itself. In that case, however, the questions raised in the reference before the High Court included questi,-ns spe-cifically challenging the findings of fact reached by the Ap-pellate Tribunal as being invalid in law. In the present case the question referred to the High Court was framed on the assump-tion that it had to be decided in the factual matrix delineated by the Appellate Tribunal : In the circumstances, the findings of fact set forth in the judgment of the High Court must be vacated. We would have sent the case back to the High Court requiring it to answer the question.of law referred to it on the basis of the facts found by the Appellate Tribunal but we refrain from doing so, and propose to dispose of the reference ourselves on the statements of fact contained in the, appellate order of the Appellate Tribunal. The case has remained pending through its successive- stages for the last over 20 years, and it is appro-priate that it should be disposed of now without further delay.
5. According to the statement of the case drawn up on the basis of the appellate order of the Appellate Tribunal the assessee was told that if it subscribed for the Government Loan preferential treatment would be cranted to it in the placing of orders for motor vehicles required by the various government departments and to the further benefit of an advance from the Rovernment up to 50 per cent of the value of the orders placed. Pursuant to that understanding an advance to the extent of Rs 18,37,062 was re-ceived by the assessee and a circular was also issued by the State Government to various departments to make purchases of the vehicles required by them rom t,’lt assessee. ecause of the advance received from the government, the assessee was able to save Rs 45.000 as bank interest during the year. It was also noticed that the sales shot up substantially. On September 4, 1961 the assessee made a deposit of Rs 5 lakh, consequent upon a Resolution of the Board of Directors passed about 6 weeks before after a statement made by the Chairman during the Board meeting that the government had approached him to subscribe to the Gov-ernment Loan and that the company should do so as good orders could be expected. The purchase of the loan was approved by the Board of Directcrs and was ratified in the Annual General Meeting of the shareholders held on December 31, 1961. The Appellate. Tribunal found that having regard to the sequence of events and the close proximity,, of the investment with the receipt of government orders the conclusion was ‘inescapable- that the in-vestment ,was made in order to, further the sales of the assessee and boost its business. In the circumstances. the Appllate Trib-unal held that the investment was made by may of commercial ex-pediency for the purpose of carrying on the assesee’ business and that therefore, the loss suffered by the assessee on the sale of the investment must be regarded as a revenue loss. We are of opinion that the Appellate Tribunal is right.
6. The High Court, his been mentioned, re-examined the facts on the record and found that the investment was not connected with the orders placed by the ‘ Government with the assessee and the advance payment made by the government departments to the. assessee. and it was in that context that the High Court held that the investment in the loan was a capital asset and the loss was a capital loss. The High Court took the view that the in-vestment was of enduring benefit to the assessee and therefore it could not be allowed. We find it difficult to hold that an enduiring benefit wig brouqht about by the assessee investing in the loan. So far is orders from the government departments were concerned the material on record shows that on August 30. 1961 it was decided to purchase 16 Jeeps,8 trucks and 4 one-Tonn pick-up vans. There is nothing to show that there was any reason for the assessee to hold on to the investment in the loan indefinitely. There was no enduring advantage. Accordingly we hold that the investment did not bring in an asset of a capital nature, and that in the circumstances of the case the loss suffered by the assessee was a revenue loss and not a capital loss. It was held by the Orissa High Court in Additional Commissioner of Income-Tax, Madras-II v. B.M.S. (P) Ltd. (1979) 119 ITR 321 and against in Commissioner of Income-Tax, Tamil Nadu-V v. Dhandayuthapani Foundry (P) Ltd. (1980) 123 ITR 709, that where government bonds or securities were purchased by the assessee with a view to increasing his business with the government or with the object of retaining the goodwill of the authorities for the purpose of his business, the loss incurred on the sale of such bonds or securities was allowable as a business loss.
7. We hold that the High Court has erred in the view taken by it and that the Tribunal was right in allowing the appeal.
8. In the result the appeal is allowed, the judgment of the High Court is set aside and inasmuch as the loss a revenue loss the question referred to the High Court is answered in favour of the assessee and against the Revenue. The assessee is entitled to its costs of this appeal.
Appeal dismissed.
1. This appeal by special leave is directed against.the judg-ment of the High Court of Oiissa and raises the familiar question whether a loss suffered by the assessee is a capital loss,or a revenue less.
2. The assessee deals in automobiles and also sells spare motor parts. For the assessment year 1963-64, the relevant accounting period being the year ended March 31, 1963, the asses-see claimed a loss of Rs 53,650 sustained by it on disposing of its subscription to the Orissa Government Floated Loan, 1972. It claimed that the loss suffered by it was revenue loss and, there-fore deductible against its profits for the year. The Income Tax Officer disallowed the loss in the view that it was a capital loss. The asszssee’s appeal was dismissed by thei Appellate Assistant Commissioner of Income Tax. But on second appeal the Incom- Tax Appellate Tribunal accepted the contention of the assessee that the subscription to the Government Loan was condu-cive to its business and that the loss arose in the course of the business, and that, therefore, the assessee was entitled to a deduction of the less claimed by it. The Accountant Member and the Judicial Member wrote separate but concurrent orders. At the instance of the revenue the App.-llate Tribunal r@-ferred the case to the High Court of Orissa for its cpinic.n on the follow-ing question of law :
Whether, in the facts and circumstances of the case, the loss of Rs 53,659 sustained by the ass.l.ssee on the sale of the Gcverrment Lean is a capital loss or a revenu- loss ?
3. Disagreeing with the findings of the Appellate Tribunal’ the High Court held that the loss was a capital less and accordingly answered the reference in favour of the revenue and against the assessee.
4. At the outset, we find it necessary to note that the High Court has taken the view that the factual substratum of the case has been misconceived by the Appellate Tribunal and that it is, therefore, entitled to re-examine the evidence and arrive at its own findings of fact. We think the High Court fell into serious error in doing, so. It is now well settled that the Appellate Tribunal is the final fact-finding authority under the Income Tax Act and that the court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate older. The court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriv-ing at the findings of fact. But even there the court cannot disturb the findings cf fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidnce to support them or they are the result of a misdirection in law. There is a long line of cases decided b); tiiis Court laying down this proposi-tion. See India Cements Ltd. v. C.I.T. 60 ITR 52,64., Hazarat Pirmahomed Shah Saheb Roza Committee v. C.I.T. 63 ITR 490, 495-6, C.I.T. v. Greaves Cotton & Co. Ltd. 68 ITR 200, C.I.T. v. Meenakshi Kills Ltd. 63 ITR 609, 613, C.I.T. v. Madan Gopal Radhey lal 73 ITR 652 656, Hoogly Trust Ltd. v. C.I.T. 73 ITR 685,690, C.I.T. v. Imperial Chemical Industries (India) Ltd. 74 ITR 17 and Aluminium Corpon. of India Ltd. v. C.I.T. 86 ITR 11. The High Court has relied on Commissioner of Income-tax, Bihar & Orissa v. S.p. Jain 87 ITR 370, to justify its re-examination of the evidence and to supersede the findings of fact rendered by the Appellate Tribunal by findings of fact reached by itself. In that case, however, the questions raised in the reference before the High Court included questi,-ns spe-cifically challenging the findings of fact reached by the Ap-pellate Tribunal as being invalid in law. In the present case the question referred to the High Court was framed on the assump-tion that it had to be decided in the factual matrix delineated by the Appellate Tribunal : In the circumstances, the findings of fact set forth in the judgment of the High Court must be vacated. We would have sent the case back to the High Court requiring it to answer the question.of law referred to it on the basis of the facts found by the Appellate Tribunal but we refrain from doing so, and propose to dispose of the reference ourselves on the statements of fact contained in the, appellate order of the Appellate Tribunal. The case has remained pending through its successive- stages for the last over 20 years, and it is appro-priate that it should be disposed of now without further delay.
5. According to the statement of the case drawn up on the basis of the appellate order of the Appellate Tribunal the assessee was told that if it subscribed for the Government Loan preferential treatment would be cranted to it in the placing of orders for motor vehicles required by the various government departments and to the further benefit of an advance from the Rovernment up to 50 per cent of the value of the orders placed. Pursuant to that understanding an advance to the extent of Rs 18,37,062 was re-ceived by the assessee and a circular was also issued by the State Government to various departments to make purchases of the vehicles required by them rom t,’lt assessee. ecause of the advance received from the government, the assessee was able to save Rs 45.000 as bank interest during the year. It was also noticed that the sales shot up substantially. On September 4, 1961 the assessee made a deposit of Rs 5 lakh, consequent upon a Resolution of the Board of Directors passed about 6 weeks before after a statement made by the Chairman during the Board meeting that the government had approached him to subscribe to the Gov-ernment Loan and that the company should do so as good orders could be expected. The purchase of the loan was approved by the Board of Directcrs and was ratified in the Annual General Meeting of the shareholders held on December 31, 1961. The Appellate. Tribunal found that having regard to the sequence of events and the close proximity,, of the investment with the receipt of government orders the conclusion was ‘inescapable- that the in-vestment ,was made in order to, further the sales of the assessee and boost its business. In the circumstances. the Appllate Trib-unal held that the investment was made by may of commercial ex-pediency for the purpose of carrying on the assesee’ business and that therefore, the loss suffered by the assessee on the sale of the investment must be regarded as a revenue loss. We are of opinion that the Appellate Tribunal is right.
6. The High Court, his been mentioned, re-examined the facts on the record and found that the investment was not connected with the orders placed by the ‘ Government with the assessee and the advance payment made by the government departments to the. assessee. and it was in that context that the High Court held that the investment in the loan was a capital asset and the loss was a capital loss. The High Court took the view that the in-vestment was of enduring benefit to the assessee and therefore it could not be allowed. We find it difficult to hold that an enduiring benefit wig brouqht about by the assessee investing in the loan. So far is orders from the government departments were concerned the material on record shows that on August 30. 1961 it was decided to purchase 16 Jeeps,8 trucks and 4 one-Tonn pick-up vans. There is nothing to show that there was any reason for the assessee to hold on to the investment in the loan indefinitely. There was no enduring advantage. Accordingly we hold that the investment did not bring in an asset of a capital nature, and that in the circumstances of the case the loss suffered by the assessee was a revenue loss and not a capital loss. It was held by the Orissa High Court in Additional Commissioner of Income-Tax, Madras-II v. B.M.S. (P) Ltd. (1979) 119 ITR 321 and against in Commissioner of Income-Tax, Tamil Nadu-V v. Dhandayuthapani Foundry (P) Ltd. (1980) 123 ITR 709, that where government bonds or securities were purchased by the assessee with a view to increasing his business with the government or with the object of retaining the goodwill of the authorities for the purpose of his business, the loss incurred on the sale of such bonds or securities was allowable as a business loss.
7. We hold that the High Court has erred in the view taken by it and that the Tribunal was right in allowing the appeal.
8. In the result the appeal is allowed, the judgment of the High Court is set aside and inasmuch as the loss a revenue loss the question referred to the High Court is answered in favour of the assessee and against the Revenue. The assessee is entitled to its costs of this appeal.
Appeal dismissed.
