DDIT, NEW DELHI vs. M/S. DAIKIN INDUSTRIES LTD., JAPAN

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ITA 1215/DEL/2012Status: DisposedITAT Delhi18 January 2016AY 2005-066 pages

In favour of the Revenue: the Revenue's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal allowed the revenue's appeal, respectfully following the decision of the ITAT Special Bench in the case of Bennett Coleman & Co. Ltd. Vs. Addl. CIT (2011) 14 Taxmann.com 1 (Mum.). The Special Bench held that the loss arising on account of reduction in share capital cannot be subjected to the provisions of Section 45 read with Section 48 of the Act and is not allowable as capital loss. Such loss can at best be described as notional loss, and no notional loss or income can be subjected to the provisions of the Income Tax Act. Therefore, the Tribunal found that the cancellation of shares did not amount to a transfer under Section 2(47) and the capital loss claim was not allowable. The cross-objection filed by the assessee challenging the initiation of reassessment proceedings u/s 147 was dismissed, with the Tribunal agreeing with the CIT(A) that the AO had reason to believe that income had escaped assessment.

What were the facts?

The assessee, M/s Daikin Industries Ltd., a foreign company, filed its return for AY 2005-06 showing a loss. The Assessing Officer (AO) issued a notice u/s 148 after recording reasons, primarily to deny the assessee's claim of long-term capital loss of Rs. 15,60,00,000/- and short-term capital loss of Rs. 388,087,500/-. These losses arose from the cancellation of 5,480,000 equity shares held by the assessee in Daikin Airconditioning India Pvt. Ltd. under a capital reduction scheme, approved by the Delhi High Court on March 10, 2005. The assessee contended this cancellation constituted a 'transfer' u/s 2(47) as it involved relinquishment of an asset or extinguishment of rights. The AO rejected this claim, holding it was not a transfer u/s 2(47). The CIT(A) rejected the initiation of proceedings u/s 147 but allowed the assessee's claim on merits. The Revenue appealed this decision.

What were the issues?

1. Whether the cancellation of shares under a capital reduction scheme constitutes a 'transfer' within the meaning of Section 2(47) of the Income Tax Act, 1961, thereby allowing the claim of capital loss. Assessee's contentions: - The cancellation of shares resulted in relinquishment of an asset and extinguishment of rights, thus qualifying as a 'transfer' under Section 2(47). - Relied on the decision in Zyma Laboratories Ltd. Vs. ACIT 7 SOT 164. Revenue's contentions: - The cancellation of shares was for accounting and legal purposes only and was, in substance, an accounting transaction, not a transfer under Section 2(47). - The CIT(A) erred in deleting the addition of Rs. 544,087,500/- made by the AO on account of the wrong claim of capital loss. - The CIT(A) erred in not appreciating the AO's findings that the cancellation of shares was not a transfer.

Which sections of the Income-tax Act were involved?

Section 148,Section 2(47),Section 102,Section 147,Section 55(v),Section 45,Section 48

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH “B” NEW DELHI

Before: SHRI S._V. MEHROTRA : & Ms. SUCHITRA KAMBLE :

For Appellant: Shri Vishal Kalra Adv
For Respondent: Shri Anuj Arora CIT(DR), Shri Vishal Kalra Adv

Heard together (2 matters)

ITA no. 1215/Del/2012
C.O. 155/Del/2012

Read from the judgment's own cause title. This page is filed under one of them.

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B” NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND Ms. SUCHITRA KAMBLE : JUDICIAL MEMBER Asstt. Yr: 2005-06 DCIT, Circle-1(1), Vs. M/s Daikin Industries Ltd., International Taxation, Umeda Center Building New Delhi. 4-12, Nakazaki, Nishi 2, Chome, Kita Ku, Osaka, Japan. PAN: AACCD 2498 N C.O. 155/Del/2012 ( In Asstt. Yr: 2005-06 M/s Daikin Industries Ltd., Vs. DCIT, Circle-1(1), Umeda Center Building International Taxation, 4-12, Nakazaki, Nishi 2, Chome, New Delhi. Kita Ku, Osaka, Japan. ( Appellant ) (Respondent) Department by : Shri Anuj Arora CIT(DR) Assessee by : Shri Vishal Kalra Adv. Date of hearing : 03/12/2015. Date of order : 18/01/2016. O R D E R PER S.V. MEHROTRA, A.M:

The captioned appeal by the revenue and the cross objection by the assessee have been preferred against CIT(A)’s order dated 23.11.2011 relating to AY 2005-06.

2.

The assessee, a foreign company, had filed its return of income on 30.10.1985, showing loss of Rs. 5,44,087,500/-. Notice u/s 148 was issued on 13.02.2007, after recording reasons, primarily for denying the assessee’s claim of long term capital loss of Rs. 15,60,00,000/- and short term capital loss of Rs. 388,087,500/-, which was claimed to be carried forward to AY 2006-07. Brief facts apropos this issue are that during the previous year 2004-05, 5,480,000 equity shares held by assessee in Daikin Airconditioning India Pvt. Ltd. were cancelled under the capital reduction scheme, which was approved on 10.3.2005 by the Hon’ble Delhi High Court u/s 102 of the Companies Act, 1956 and the order of the High Court was registered by Registrar of Companies during the year ending March 31, 2005. The assessee had claimed that as per the definition of “transfer” u/s 2(47), since there was relinquishment of an asset/ extinguishment of right in shares, therefore, it amounted to transfer of a capital asset. The assessee’s claim was that the reduction in capital resulted in relinquishment of asset/ extinguishment of right in the shares held by the assessee in Daikin

3.

The AO, after considering the entire course of events, including the resolutions passed for cancellation of shares and after taking into consideration various decisions concluded that the portion of right which gets extinguished on cancellation in case of equity shareholder can be summarized as below:

“Rights in the company before cancellation or reduction Vis-à-vis Rights in the company after cancellation or reduction.

4.

He observed that in the present case there was neither relinquishment of the capital asset nor any rights in the capital asset. He, accordingly, held that it was not a transfer u/s 2(47) of the Act and rejected the assessee’s claim regarding carry forward of capital loss.

5.

Before Ld. CIT(A), the assessee had challenged the initiation of proceedings u/s 147 as well as on merits. Ld. CIT(A) rejected the assessee’s claim in regard to initiation of proceedings, however, allowed the assessee’s claim on merits.

6.

Ld. CIT(A) relied on the decision in the case of Zyma Laboratories Ltd. Vs. ACIT 7 SOT 164. Being aggrieved with the order of ld. CIT(A), the department has filed appeal on following grounds: “1. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition of Rs. 544087500/- made by the AO on account of wrong claim of capital loss, holding that the cancellation of shares resulted in extinguishment of capital asset held by the assessee the therefore is a 'transfer' within the meaning of provision of section 2(47) of the Act.

2. On the facts and in the circumstances of the case, the Ld CIT(Appeal) has erred in not appreciating the findings of the AO that the cancellation of shares was done for accounting and legal purpose only and in substance was an accounting transaction only and therefore cancellation of shares was not transfer within the meaning of sub section 47 of section 2 of Act.

3. The appellant craves to add, amend, modify or alter any grounds of appeal

at the time or before the hearing of the appeal.”

7. At the time of hearing, ld. counsel for the assessee fairly conceded that this issue has been decided by ITAT Special Bench Mumbai in the case of Bennett Coleman & Co. Ltd. Vs. Addl. CIT(2011) 14 Taxmann.com 1 (Mum.), wherein in paras 28 & 29 it has been held as under:

“28. We also find force in the submissions of the Ld. DR that as per sec.55(v) the cost the cost of acquisition of shares even after conversion etc. has to be taken with reference to the cost of original shares. Therefore, after reduction of share capital the cost of acquisition of the remaining shares would be reckoned with references to the original cost. Though at this stage assessee has not obtained any benefit because loss has been computed with reference to the actual cost, but, in future, if assessee decides to sell its shareholding in TGL then assessee has the right, U/s 55(v), to substitute the cost of acquisition with reference to the original shareholding and in that case it may amount to double benefit later on which is not permissible under the law.

29.

Therefore, in the light of the above discussion, we are of the opinion, that the loss arising on account of reduction in share capital cannot be subjected to provisions of sec.45 r.w.s. 48 and, accordingly, such loss is not allowable as capital loss. At best such loss can be described as notional loss and it is settled principle that no notional loss or income can be subjected to the provisions of the I.T. Act. We hold accordingly.

8.

Respectfully following the decision of Special Bench of the ITAT in the case of Bennett Coleman & Co. Ltd. (supra), revenue’s appeal is allowed.

C.O. no. 155/Del/2012 (Assessee’s cross objection):

9.

Sole effective ground taken by the assessee in its cross-objection is as under: “That on the facts and circumstances of the case and in law, the Commissioner of Income-tax (Appeals) - XXIX has erred in holding that the Assessing Officer had validly assumed jurisdiction to invoke the powers contained in section 147 of the Act to initiate reassessment proceedings against the respondent and in not holding that the order dated December 24, 2007 issued pursuant to such invocation was without jurisdiction, bad in law and void ab initio.

10.

In regard to assessee’s cross objection we are in agreement with the findings of ld. CIT(A) that the issue under consideration was such that prima facie it was possible to entertain a view that the assessee had wrongly claimed capital loss of Rs. 54,40,87,500/- on account of calculation of shares and thereby resulting into escapement of income. Therefore, we endorse the finding of ld. CIT(A) in holding that the AO had reason to believe that income had escaped assessment and he was within his competence to invoke the powers contained in section 147 to initiate reassessment of the income of the assessee. In the result, cross objection is dismissed.

11.

In the result, departmental appeal is allowed and the cross-objection filed by the assessee is dismissed. Order pronouncement in open court on 18/01/2016.

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