“Transfer” presumes both the existence of asset and of the transferee, after the transfer. Non existence of any one will meant that there is no “Transfer”: Supreme Court

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“Transfer” presumes both the existence of asset and of the transferee, after the transfer. Non existence of any one will meant that there is no “Transfer”:  Supreme Court

 

VANIA SILK MILLS (P) LTD. vs. COMMISSIONER OF INCOME TAX

SUPREME COURT OF INDIA

K.N. Singh & P.B. Sawant, JJ.

Civil Appeal No. 1106 of 1976

14th August, 1991

(1991) 59 CCH 0850 ISCC

(1991) 98 CTR 0153 : (1991) 191 ITR 0647 : (1991) 59 TAXMAN 0003

Legislation Referred to

Sections 2(47), 45

Case pertains to

Asst. Year-

Decision in favour of:

Assessee

Words & phrases—”Extinguishment of any rights therein”—In s. 2(47)—Is confined to extinguishment of rights on account of transfer and cannot be extended to mean and extinguishment of right independent of or otherwise than on account of transfer

Held :

The expression “extinguishment of any rights therein” would take colour from the associated words and expression, and will have to be restricted to the sense analogous to them. If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz., sale, exchange, etc. Hence the expression “extinguishment of any rights therein” will have to be confined to the extinguishment of rights on account of transfer and cannot be extended to mean any extinguishment of right independent of or otherwise than on account of transfer.—CIT vs. Vania Silk Mills (P) Ltd. 1978 CTR (Guj) 141 : (1977) 107 ITR 300 (Guj) : TC68R.279 reversed.

Conclusion :

Expression “extinguishment of any rights therein” in s. 2(47) is confined to extinguishment of rights on account of transfer and cannot be extended to mean and extinguishment of right independent of or otherwise than on account of transfer.

Capital gains—Transfer—Loss of asset on account of fire— Insurance claim received from insurance company—Not chargeable to capital gains tax— Whatever the mode by which transfer is brought about, the existence of asset during the process of transfer is a precondition—Extinguishment of right in the asset on account of extinguishment of asset itself is not a transfer of the right but its destruction—Capital gain is attracted by transfer and not merely by extinguishment of right howsoever brought about—An extinguishment of right not brought about by transfer is outside the purview of s. 45—Further, transfer presumes both the existence of asset and of the transferee—In the case of damage or destruction or loss of asset, there is no transfer of it in favour of a third party—Money received under the insurance policy in such cases is by way of indemnity or compensation for damage, destruction or loss of the property

Facts

In the year 1957, the assessee purchased machinery worth Rs. 2,81,741 and gave it on hire to J Mills Ltd., at an annual rent of Rs. 33,900. On 11th Aug., 1966, a fire broke out in the premises of J Mills causing extensive damage to the machinery installed in their premises including the machinery hired by them from the assessee. The machinery belonging to the assessee became useless for any further use on account of the damage. J Mills had insured alongwith its own machinery, the assessee’s machinery as well, and on a settlement of the insurance claim, J Mills received a certain amount out of which it paid a sum of Rs. 6,32,533 to the assessee on account of the destruction of its machinery. The ITO subjected to tax also the additional amount of Rs. 3,50,792 being the difference between the amount of Rs. 6,32,533 received on account of the insurance claim and the original cost of the machinery, i.e., Rs. 2,81,741, treating the same as capital gains chargeable under s. 45. The AAC dismissed the appeal. The assessee’s contention was, however, upheld in the appeal before the Tribunal. The High Court reversed the order of Tribunal.

(Para 1)

Held :

Whatever the mode by which transfer is brought about, the existence of the asset during the process of transfer is a pre- condition. Unless the asset exists in fact, there cannot be a transfer of it. When an asset is destroyed there is no question of transferring it to others. The destruction or loss of the asset, no doubt, brings about the destruction of the right of the owner or possessor of the asset, in it. But it is not on account of transfer. It is on account of the disappearance of the asset. The extinguishment of right in the asset on account of extinguishment of the asset itself is not a transfer of the right but its destruction. By no stretch of imagination, the destruction of the right on account of the destruction of the asset can be equated with the extinguishment of right on account of its transfer. Sec. 45 speaks about capital gains arising out of “transfer” of asset and not on account of “extinguishment of right” by itself. The capital gains is attracted by transfer and not merely by extinguishment of right howsoever brought about. The transfer may be effected by various modes and one of the modes is the extinguishment of right on transfer of the asset itself or on account of the transfer of the right or rights in it. The extinguishment of right or rights must in any case be on account of its or their transfer in order to attract the provisions of s. 45. If it is not, it is not a transfer and does not attract the provisions of s. 45 which www.TheTaxTalk.com relate to transfer and not to mere extinguishment of right but to one by transfer. Hence an extinguishment of right not brought about by transfer is outside the purview of s. 45.

(Paras 3 & 4)

Transfer presumes both the existence of the asset and of the transferee to whom it is transferred. In the case of the damage, partial or complete, or destruction or loss of the property, there is no transfer of it in favour of a third party. The money received under the insurance policy in such cases is by way of indemnity or compensation for the damage, loss or destruction of the property. It is not in consideration of the transfer of the property or the transfer of any right in it in favour of the insurance company. It is by virtue of the contract of insurance or of indemnity, and in terms of the conditions of the contract. Under an insurance contract, the assured cannot claim more amount than the sum insured. The fact that while paying for the total loss of or damage of the property, the insurance company takes over such property or whatever is left of it, does not change the nature of the insurance claim which is indemnity or compensation for the loss. The payment of insurance claim is not in consideration of the property taken over by the insurance company, for one is not consideration for the other. It is incorrect to argue that the insurance claim is the value of the damaged property. The claim is assessed on the basis of the damage sustained by the property or the amount necessary to restore it to its original condition. It is not a consideration for the damaged property.

(Para 5)

The definition of ‘transfer’ also mentions such transactions as sale, exchange etc. to which the word “transfer” would properly apply in its popular and natural import. Since those associated words and expressions imply the existence of the asset and of the transferee, according to the rule of noscitur a sociis, the expression “extinguishment of any rights therein” would take colour from the said associated words and expressions, and will have to be restricted to the sense analogous to them. If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz., sale, exchange etc. Hence the expression “extinguishment of any rights therein” will have to be confined to the extinguishment of rights on account of transfer and cannot be extended to mean any extinguishment of right independent of or otherwise than on account of transfer.

(Para 6)

The amount received by assessee was an amount received as damages on account of the loss of its machinery. It is difficult to describe it otherwise. The second reason given by the High Court is equally fragile. the facts clearly show that J Mills as a bailee had insured the machinery hired from the assessee, since it was liable to make good the loss of the machinery to the assessee. This is implied under a contract of bailment unless it is provided to the contrary. J Mills further admittedly paid the insurance amount pro rata to the assessee. It would make no difference to the point involved in the present case whether the J Mills had insured the assessee’s machinery as bailees or as agents of the assessee. There is further no dispute that the insurance policy contained the reinstatement clause requiring the insurer to pay the cost of the machinery as on the date of the fire. In an insurance policy with reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of the destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing of destroyed asset or for any other purpose. www.TheTaxTalk.com In the circumstances, for the purpose of answering the question in hand, it was not necessary to inquire whether the amount received by the assessee was spent in replacement of the machinery or not. No capital gains were therefore chargeable in the present case.—CIT vs. Vania Silk Mills (P) Ltd. 1978 CTR (Guj) 141 : (1977) 107 ITR 300 (Guj) : TC20R.297 reversed; CIT vs. J.K. Cotton Spg. & Wvg. Mills Co. Ltd. (1986) 57 CTR (All) 215 : (1987) 164 ITR 18 (All) : TC20R.302 overruled; C. Leo Machodo vs. CIT (1988) 69 CTR (Mad) 95 : (1988) 172 ITR 744 (Mad) : TC20R.303 approved.

(Paras 9, 10 & 11)

Conclusion :

No transfer within meaning of s. 2(47) takes place in the case of damage or destruction or loss of the asset and therefore capital gains are not chargeable in respect of insurance claim received from the insurance company in such cases.

Counsel appeared:

Joseph Vellapally with K.J. John, for the Assessee : S.C. Manchanda with Ranbir Chandra & Ms. A. Subhashini, for the Revenue

P.B. SAWANT, J.:

The appellant-Company, hereinafter referred to as the assessee, carries on the business of manufacture and sale of art-silk cloth. In the year 1957, it purchased machinery worth Rs. 2,81,741 and gave it on hire to M/s Jasmine Mills Pvt. Ltd., Bombay at an annual rent of Rs. 33,900. On 11th Aug., 1966, a fire broke out in the premises of M/s Jasmine Mills causing extensive damage to the machinery installed in their premises including the machinery hired by them from the assessee. The machinery belonging to the assessee became useless for any further use on account of the damage. M/s Jasmine Mills had insured alongwith its own machinery, the assessee’s machinery as well, and on a settlement of the insurance claim, M/s Jasmine Mills received a certain amount out of which it paid a sum of Rs. 6,32,533 to the assessee on account of the destruction of its machinery. The difference between the actual cost of the machinery and its written-down value worked out to Rs. 2,62,781. The assessee in its income-tax return for the asst. yr. 1967-68 (relevant accounting year being the year ending on 31st Aug., 1966) showed the said amount as profit chargeable to tax under s. 41(2) of the IT Act (hereinafter referred to as the “Act”). The ITO, however, subjected to tax also the additional amount of Rs. 3,50,792 being the difference between the amount of Rs. 6,32,533 received on account of the insurance claim and the original cost of the machinery, i.e., Rs. 2,81.741, treating the same as capital gains chargeable under s. 45 of the Act. The contention advanced by the assessee that the capital gains tax was not attracted to the amount received on account of the insurance claim since there was no transfer of capital asset as was contemplated by s. 45 r/w s. 2(47) of the Act, was negatived by the ITO.

The assessee appealed against the order of the AAC who also negatived the said contention of the appellant and dismissed the appeal. The assessee’s contention was, however, upheld in the appeal before the Tribunal, the Tribunal holding that the amount was not received on account of a transfer of the capital asset but on account of the damage to it and that s. 45 was attracted only when there was a transfer of the capital asset. Being aggrieved, the Revenue applied for reference of the case to the High Court on the following two questions:

(i) whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that there was no transfer of capital asset by the assessee within the meaning of s. 2(47) of the Act ?

(ii) whether, on the facts and in the circumstances of the case, the sum of Rs. 3,50,792 being the excess of the cost of the machinery received from M/s Jasmine Mills Pvt. Ltd. was chargeable to tax as capital gains under s. 45 of the Act ?

The High Court answered the first question in the negative, and consequently the second question in the affirmative, i.e., both questions in favour of the Revenue and against the assessee.

This appeal has been filed by the assessee on a certificate granted by the High Court.

  1. The short question that falls for our consideration is whether the money received towards the insurance claim on account of the damage to or destruction of the capital asset is so received on account of the transfer of the asset within the meaning of s. 45 of the Act and is, therefore, chargeable to the capital gains tax under the said section.
  2. It would be convenient to reproduce here the provisions of s. 45 of the Act as they stood at the relevant time:

“45. Capital gains.—Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in ss. 53 and 54, be chargeable to income-tax under the head ‘capital gains’, and shall be deemed to be the income of the previous year in which the transfer took place.”

[Emphasis, italicized in print, supplied]

Sec. 2(47) of the Act which defined transfer at the relevant time read as follows :

“2. Definitions.—In this Act, unless the context otherwise requires,—…..

(47) ‘transfer’, in relation to a capital asset, includes the sale, exchange or relinquishment of the asset or the extinguishment of any rights therein or the compulsory acquisition thereof under any law.”

A reading of the two sections makes it abundantly clear that the profits or gains which are amenable to s. 45 must arise from the transfer of the capital asset which is effected in the previous year. The transfer may be brought about by any of the modes of transfer which include sale, exchange, relinquishment of the asset or the extinguishment of the rights therein or the compulsory acquisition of the asset under any law. It may be of the asset itself or of any rights in it. It may further be the result of a voluntary act or a compulsory operation. Whatever the mode by which it is brought about, the existence of the asset during the process of transfer is a pre-condition. Unless the asset exists in fact, there cannot be a transfer of it.

  1. When an asset is destroyed there is no question of transferring it to others. The destruction or loss of the asset, no doubt, brings about the destruction of the right of the owner or possessor of the asset, in it. But it is not on account of transfer. It is on account of the disappearance of the asset. The extinguishment of right in the asset on account of extinguishment of the asset itself is not a transfer of the right but its destruction. By no stretch of imagination, the destruction of the right on account of the destruction of the asset can be equated with the extinguishment of right on account of its transfer. Sec. 45 speaks about capital gains arising out of “transfer” of asset and not on account of “extinguishment of right” by itself. The capital gains is attracted by transfer and not merely by extinguishment of right howsoever brought about. The transfer may be effected by various modes and one of the modes is the extinguishment of right on transfer of the asset itself or on account of the transfer of the right or rights in it. The extinguishment of right or rights must in any case be on account of its or their transfer in order to attract the provisions of s. 45. If it is not, and is on account of the destruction or loss of the asset, as in the present case, it is not a transfer and does not attract the provisions of s. 45 which relate to transfer and not to mere extinguishment of right but to one by transfer. Hence an extinguishment of right not brought about by transfer is outside the purview of s. 45. The High Court erred in ignoring the basic postulate that s. 45 does not relate to extinguishment of right but to transfer. Having concentrated its attention on the words “extinguishment of right” rather than on “transfer”, the High Court, with respect, misdirected itself and proceeded on the basis that every extinguishment of right whether by way of transfer or not, is attracted by s. 45.
  2. Transfer presumes both the existence of the asset and of the transferee to whom it is transferred. In the case of the damage, partial or complete, or destruction or loss of the property, there is no transfer of it in favour of a third party. The money received under the insurance policy in such cases is by way of indemnity or compensation for the damage, loss or destruction of the property. It is not in consideration of the transfer of the property or the transfer of any right in it in favour of the insurance company. It is by virtue of he contract of insurance or of indemnity, and in terms of the conditions of the contract. Under an insurance contract, the assured cannot claim more amount than the sum insured. The sum insured is the maximum liability of the insurer and the assured secures it by paying his premium which is accordingly fixed. Even within the maximum limit, the insured cannot recover more than what he establishes to be his actual loss, whatever may be his estimates of the loss that he was likely to bear and whatever the premium he may have paid calculated on the basis of the said estimate.

The fact that while paying for the total loss of or damage to the property, the insurance company takes over such property or whatever is left of it, does not change the nature of the insurance claim which is indemnity or compensation for the loss. The payment of insurance claim is not in consideration of the property taken over by the insurance company, for one is not consideration for the other. It is incorrect to argue that the insurance claim is the value of the damaged property. The claim is assessed on the basis of the damage sustained by the property or the amount necessary to restore it to its original condition. It is not a consideration for the damaged property. In the present case, the insurance was on reinstatement basis which meant that the property was to be restored to the condition in which it was, before the fire. The insurance company paid the amount for the restoration of the machinery which had to be on the basis of its value at the time of the fire. The machinery in question was purchased in the year 1957 and the fire broke out on 11th Aug., 1966. Although nothing has come on record on the point, taking into consideration the ordinary course of events, it is legitimate to presume that the cost of machinery had gone up during the intervening period and the assured and, therefore, the assessee was entitled to recover on the basis of the increased value of the machinery (refer to Halsbury’s Laws of England, Fourth edn., Vol. 25 under the heading Insurance, in para 654).

  1. It is true that the definition of “transfer” in s. 2(47) of the Act is inclusive, and therefore, extends to events and transactions which may not otherwise be “transfer” according to its ordinary, popular and natural sense. It is this aspect of the definition which has weighed with the High Court and, therefore, the High Court has argued that if the words “extinguishment of any right therein” are substituted for the word “transfer” in s. 45, the claim or compensation received from the insurance company would be attracted by the said section. The High Court has, however, missed the fact that the definition also mentions such transactions as sale, exchange etc. to which the word “transfer” would properly apply in its popular and natural import. Since those associated words and expressions imply the existence of the asset and of the transferee, according to the rule of noscitur a sociis, the expression “extinguishment of any rights therein” would take colour from the said associated words and expressions, and will have to be restricted to the sense analogous to them. If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz., sale, exchange, etc. Hence the expression “extinguishment of any rights therein” will have to be confined to the extinguishment of rights on account of transfer and cannot be extended to mean any extinguishment of right independent of or otherwise than on account of transfer.
  2. The High Court, as stated earlier, read the expression “extinguishment of any rights” in the assets as any extinguishment of right whether it resulted in or was on account of transfer. For the reasons which we have discussed earlier we find that that approach is not correct. For the same reasons, we are unable to accept the reasoning of the High Court that for “transfer” within the meaning of s. 45 the asset need not exist. We are afraid that the High Court’s reliance on CIT vs. R.M. Amin (1971) 82 ITR 194 (Guj) to hold that for the transfer contemplated by s. 45, the asset need not exist is not well-merited. There, the High Court was concerned with a chose-in-action, viz., the shares, and the amount received by the assessee-shareholder on liquidation of the company representing his share in the assets of the company. The Court there had pointed out that the extinguishment of right of the assessee shareholder in his share which was an incorporeal property had come about on account of receipt by him of the amount representing value of the shares.

The amount received by the assessee-shareholder does not represent any consideration received by him as a result of the extinguishment of his rights in the shares. The share merely represents the right to receive money on distribution of the net assets of the company in liquidation and it is by satisfaction of that right, that the right is extinguished when such monies are received by the shareholder. The consideration presumes quid pro quo and, therefore, transfer of the property or of the rights in the property, whether the property is corporeal or incorporeal. www.TheTaxTalk.com

When the assets themselves are being distributed, it is correct to say that to the extent of distribution, they are wiped out. It is in that sense that the assets do not exist to the extent that they are distributed. When the company’s assets are thus distributed, in a sense the assets which are converted into money and which, therefore, exist in the form of money are transferred from the liquidator to the shareholder. His rights in the assets come to an end when he receives his liquidated share of the asset. In such a case the assets do exist though in the converted form, viz., cash and what is transferred is also the converted form of the asset. With respect, therefore, it is not correct to say that in such cases the capital asset does not exist and does not change hand as capital asset. That the receipt of his share in the asset brings about automatically the extinguishment of the shareholder’s rights in the asset cannot, however, be gainsaid. The decision of the Gujarat High Court in R.M. Amin’s case (supra) was appealed against and this Court while approving the ratio of the said decision further explained the nature of the money received by a shareholder on the liquidation of a company. This Court reiterating its earlier view in the case of CIT vs. Madurai Mills Co. Ltd. 1973 CTR (SC) 223 : (1973) 89 ITR 45 (SC) : TC20R.1119, held that the act of the liquidator in distributing the assets of the company does not result in the creation of new rights. It merely recognises the legal rights which were in existence prior to the distribution. The shareholder receives money in recognition and satisfaction of his right and not by operation of any transaction which amounts to sale, exchange, relinquishment of asset or extinguishment of any of his rights in such asset.

  1. So also when a partner retires from the partnership what he receives is his share in the partnership which is worked out and realised. It does not represent consideration received by him as a result of the extinguishment of his interest in the partnership assets. He has no share in any particular asset of the firm. Therefore, there is no transfer of interest in any particular asset of the firm on account of the receipt of his share by a retired partner. As held in CIT vs. Mohanbhai Pamabhai (1973) 91 ITR 393 (Guj) : TC20R.866 no part of the amount received by the assessee as a retired partner is assessable to capital gains tax under s. 45.
  2. The High Court has explained these two decisions by giving reasons which do not appeal to us. The Court has tried to distinguish them from the facts of the present case pointing out, firstly, that there was no foundation either in law or in fact to believe that the amount which the assessee received from M/s Jasmine Mills was paid to it in satisfaction or in working out of its right, if any, to recover damages caused to the machinery. We do not see any difficulty in holding that it was an amount received by the assessee as damages on account of the loss of its machinery. It is difficult to describe it otherwise. The second reason given by the High Court is, with respect, equally fragile. It is held that the alleged right, if any, of the assessee to recover damages was not absolute statutory right but one which was subject to a contract to the contrary and even if there was no such contract it was merely an inchoate or contingent right in respect of which some investigation or legal proceeding and settlement or adjudication would be necessary for its satisfaction or fulfilment. We do not agree with this reasoning as well. The facts clearly show that M/s Jasmine Mills as a bailee had insured the machinery hired from the assessee, since it was liable to make good the loss of the machinery to the assessee. This is implied under a contract of bailment unless it is provided to the contrary. M/s Jasmine Mills further admittedly paid the insurance amount pro rata to the assessee. In the circumstances, we are unable to appreciate the distinction sought to be made by the High Court.
  3. We are also unable to see how it would make any difference to the point involved in the present case whether the Jasmine Mills had insured the assessee’s machinery as bailees or as agents of the assessee. There is further no dispute that the insurance policy contained the reinstatement clause requiring the insurer to pay the cost of the machinery as on the date of the fire. As we have pointed out earlier, in an insurance policy with the reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of the destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing the destroyed asset or for any other purpose.www.TheTaxTalk.com In the circumstances, for the purpose of answering the question in hand, it was not necessary to inquire whether the amount received by the assessee was spent in replacement of the machinery or not.
  4. For the reasons given above, the decision of the Allahabad High Court in CIT vs. J.K. Cotton Spg. & Wvg. Mills Co. Ltd. (1986) 57 CTR (All) 215 : (1987) 164 ITR 18 (All) : TC20R.302 which proceeds on the same reasoning as the impugned judgment is also not a good law. Instead, we approve of the conclusion reached by the Madras High Court in C. Leo Machodo vs. CIT (1988) 69 CTR (Mad) 95 : (1988) 172 ITR 744 (Mad) : TC20R.303 for the reasons given by us above.
  5. In the result, the appeal succeeds and the impugned decision is set aside. In the circumstances of the case, however, there will be no order as to costs.

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