COMMISSIONER OF INCOME TAX Vs. SRINIVAS BUS SERVICE

JUDGEMENT

(1.) AT the instance of the Commissioner of Income-tax, Andhra Pradesh, Hyderabad, under Section 256(1) of the Indian Income-tax Act, 1922 (hereinafter called " the Act "), the following question has been referred for our opinion :

(2.) IN order to appreciate the scope of the question it is necessary to refer briefly to the facts that gave rise to the same. Srinivasa Bus Service, Puttur, the respondent-assessee, was a registered firm of three partners carrying on business in bus transport. For the assessment year 1960-61, corresponding to the relevant accounting period ending with March 31, I960, the assessment was completed on February 27, 1963, by the INcome-tax Officer who determined its total income at Rs. 1,09,932. The firm was dissolved with effect from April 1, 1960. As per the terms of the dissolution of the firm, two vehicles belonging to it, viz., ADO. 840 and ADC. 854 were taken over by two partners of the firm and thereafter, run on their own account. At the time of the division the value of those two vehicles was taken at the written down value arrived in at the order of assessment of the firm for the year 1960-61. The INcome-tax Officer was of the view that the value at which the partners took over the vehicles from the firm at the time of its dissolution represented a profit under the second proviso to Section 10(2)(vii) of the Act as the written down value of the vehicles was nil if the initial depreciation allowed on them was also taken into account, The contention of the assessee that there was no sale of the vehicles by the firm to the two partners in order to attract the provisions of Section 10(2)(vii) did not find favour with the INcome-tax Officer. He, therefore, held that, as the value of the vehicles was ascertained and the same had been adopted in the assessment of the individual partners for subsequent years and necessary depreciation was allowed, it was a clear case where the profit arising out of the sale had to be taxed. IN the result, he included a sum of Rs. 9,136 in the assessment as provided under Section 10(2)(vii) of the Act. On appeal to the Appellate Assistant Commissioner, it was held that there was no transfer of the two vehicles by the assessee to the two partners on April 1, 1960, when the firm was dissolved and, hence, the provisions of Section 10(2)(vii) are not attracted. He, therefore, deleted the addition of Rs. 9,136 from the assessment. Aggrieved by the decision of the Appellate Assistant Commissioner, an appeal before the INcome-tax Appellate Tribunal was preferred by the INcome-tax Officer contending, inter alia, that the transaction in substance amounted to sale attracting the provisions of Section 10(2)(vii) of the Act. Reliance was placed by the department in support of its plea on the decision of the Mysore High Court in Y.V. Srinivasamurthy v. Commissioner of INcome-tax, 1967 64 ITR 292 (Mys.). However, the Tribunal, on a consideration of the facts and circumstances and relying upon the decision of the Madhya Pradesh High Court in Dewas Cine Corporation v. Commissioner of INcome-tax, 1965 55 ITR 456 (M.P.), held that there was no sale so as to attract the provisions of Section 10(2)(vii) of the Act and affirmed the decision of the Appellate Assistant Commissioner. Hence, this reference.

(3.) THOUGH Clause (vii) of Sub-section (2) of Section 10 provides for the deduction of the difference between the written down value and the sale price of any building, machinery or plant which has been sold or discarded or demolished or destoryed, from the business income chargeable under Section 10(1), the second proviso empowers the Income-tax Officer to add so much of the sale price which is in excess of the written down value of such building, machinery or plant as the same shall be deemed to be profits of the previous year in which the sale took place. The second proviso will apply when there is sale of any building, machinery or plant either during the continuance of the business or after its cessation. Where the sale price is more than the original cost price, the depreciation allowed in respect of such building, machinery or plant in the prior years would be deemed to be the profit of the previous year and the price received in excess of the original cost price would be considered as capital gains of the previous year in which the sale took place. In order to attract the second proviso to Sub-clause (vii) of Sub-section (2) to Section 10, it must be established by the department that a sale of any such building, machinery or plant in the previous year had taken place. The profits and gains sought to be charged under the aforesaid proviso are not actual profits earned or received by the assessee, but they are deemed to be profits of the previous year if the requisite conditions specified therein are established. Hence, this proviso should be strictly construed as it is a deeming provision in a taxing statute. The burden is undoubtedly on the revenue to establish the ingredients of this provision in order to bring the case within its purview.