Commissioner of Income Tax vs Smt. Kousalya Sethuraman

N.V. Balasubramanian, J.—The Appellate Tribunal u/s 256(1) of the Income Tax Act, 1961, (hereinafter referred to as "the Act"), has referred the following question of law for our opinion for the assessment year 1979-80 :

"Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the cost of the bonus shares should be taken at 50 per cent. of the cost of the original shares for purposes of computing capital gains ?"

Mr. P. P. S. Janarthana Raja undertakes to file vakalath for the respondent.

In the assessment made for the assessment year 1979-80, the Income Tax Officer adopted the capital gains on transfer of the assessee''s shares in Coimbatore Pioneer Mills Limited at Rs. 40 as against the assessee''s claim of loss of Rs. 2,540 and 1/5th of the share in the estate of G. R. Varatharajan at Rs. 137 as against the loss of Rs. 22,361 shown by the assessee. The Income Tax Officer arrived at the value of bonus shares on the basis that the average of both the original and the bonus shares should be taken together. The Commissioner of Income Tax (Appeals) followed an order of the Appellate Tribunal in the case of G. N. Venkatapathy v. ITO (I.T.A. No. 106/Mds of 1982, dated November 25, 1982), and held that the capital gains can be worked out on the difference between the sale price and cost of acquisition, in the light of a decision of the Supreme Court in Commissioner of Income Tax, Bihar Vs. Dalmia Investment Co. Ltd., , applying the said principles laid down by the Supreme Court, the Appellate Assistant Commissioner held that to work out the cost of the shares, the cost of the bonus share should be determined by taking into account 50 per cent. of the value of the original shares. The Revenue preferred an appeal before the Income Tax Appellate Tribunal challenging the finding of the Commissioner of Income Tax (Appeals) that the cost of bonus shares should be 50 per cent. of the original shares. The Appellate Tribunal, following an earlier order in the case of G. N. Venkatapathy, cited supra, held that the order of the Appellate Assistant Commissioner of Income Tax was in conformity with the earlier order and dismissed the appeal. The order of the Appellate Tribunal is the subject-matter of the present tax case reference.

Mr. C. V. Rajan, learned counsel for the Department submitted that the earlier order of the Appellate Tribunal in the case of G. N. Venkatapathy was the subject-matter of a tax case reference before this court in T.C. No. 784 of 1984, ( Commissioner of Income Tax Vs. G.N. Venkatapathy, ), and this court in that tax case by a judgment dated June 24, 1996, has upheld the mode of valuation adopted by the Appellate Tribunal for bonus shares. In other words, this court has held that the value adopted as on January 1, 1964, is an unalterable figure and on that basis, the cost of bonus shares should be arrived at by spreading over the cost of original shares over the bonus shares. Since the view of the Appellate Tribunal has already been upheld by this court in T.C. No. 784 of 1984, (CIT v. G. N. Venkatapathy [1997] 225 ITR 952), and since the Appellate Tribunal has merely followed an earlier order, we answer the question referred to us in the affirmative and against the Department. No costs.