Case Law Details
There is no mention of ‘fair market value’ in section 50(1); besides that the adjustments stated there are with reference to the written down value only which has nothing to do with the fair market value, and therefore, where the capital asset purchased by the assessee is a depreciable or non-depreciable asset, the assessee will have the option for substituting for its actual cost of acquisition its fair market value as on 1-1-1954 but where it is a depreciable asset and the assessee has enjoyed depreciable allowance, its cost of acquisition shall have to be determined as provided in section 50 – Commonwealth Trust Ltd. v. CIT
High Court Of Madras
Commissioner of Income-tax
vs
Pierce Leslie & Co. Ltd.
k.A. Thanikkachalam And Jayarama Chouta, Jj.
TAX CASE NOS. 403 TO 405 OF 1983
MARCH 16, 1995
JUDGMENT
K.A. Thanikkachalam, J.—At the instance of the Department, the Tribunal referred the following two common questions for the assessment years 1968-69, 1969-70 and 1972-73, under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), for the opinion of this court:
“1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in cancelling the order passed under section 154 of the Income-tax Act, in the assessee’s case for the assessment year 1968-69?
2. Whether, the Appellate Tribunal’s view that the issue under dispute is highly debatable and, therefore, the provisions of section 154 could not be applied to the assessee’s case is sustainable in law?”
For these three assessment years, the assessee had capital gains in respect of depreciable assets acquired before January 1, 1954. The Income-tax Officer had in the computation of capital gains for these three assessment years allowed the assessee in the original assessments the option of adopting the fair market value as on January 1, 1954. Later, he invoked section 154 of the Act and deprived the assessee of that option of adopting the fair market value and accordingly revised the assessments by taking the written down value as the cost of acquisition. The Appellate Assistant Commissioner confirmed the order passed by the Income-tax Officer.
Aggrieved, the assessee filed an appeal before the Tribunal. The Tribunal held that the view taken by the Income-tax authorities that the assessee is not entitled to exercise the option of adopting the fair market value as on January 1, 1954, in respect of depreciable assets acquired before January 1, 1954, is correct. But the Tribunal held that the issue is highly debatable and that much can be said on both sides in favour of and against the assessee. Therefore, the Tribunal held that inasmuch as the issue involved is debatable, section 154 of the Act is not applicable. In that view of the matter, the Tribunal cancelled the rectification order passed by the Income-tax Officer under section 154 of the Act.
So far as the issue on the merits is concerned, even the Tribunal accepted that inasmuch as the assessee acquired depreciable assets before January 1, 1954, it cannot exercise the option to adopt the fair market value as on January 1, 1954, because the provisions of section 50 of the Act are mandatory. In the case of the assessee, the cost of acquisition on depreciable assets has got to be valued in accordance with sub-section (1) of section 50 of the Act. When section 50(1) is applicable, the assessee can have no option to adopt the fair market value as on January 1, 1954, in respect of the depreciable assets acquired before January 1, 1954. This view was adumbrated by various High Courts. The Gujarat High Court in the case of Rajnagar Vaktapur Ginning, Pressing and Manufacturing Co. Ltd. v. CIT [1975] 99 ITR 264, the Allahabad High Court in the case of CIT v. Upper Doab Sugar Mills [1979] 116 ITR 240, the Kerala High Court in the case of CIT v. Commonwealth Trust Ltd. [1982] 135 ITR 19 [FB] and the Calcutta High Court in the case of India Jute Co. Ltd. v. CIT [1982] 136 ITR 597, uniformly came to the conclusion that for the computation of income under the head “Capital gains” in respect of depreciable assets which had become the assessee’s property before January 1, 1954, and which were sold by it during the previous year relevant to the assessment year under consideration, the assessee is not entitled to seek the aid of section 55(2)(i) and substitute the fair market value as on January 1, 1954, as the cost of acquisition thereof in place of their written down value. In the above said decisions it was further held that the determination of the cost of acquisition under section 55(2) of the Income-tax Act, 1961, which enables the assessee to exercise the option to adopt the fair market value of the asset as on January 1, 1954, is for the purpose of sections 48 and 49 only. Section 50 is a special provision concerning with the determination of capital gains in regard to depreciable assets. Therefore, on the merits, the Tribunal was correct in holding that the assessee is not entitled to exercise the option to adopt the fair market value as on January 1, 1954, with regard to the depreciable assets acquired before January 1, 1954, while computing the capital gains.
The second part of the argument advanced by learned counsel for the assessee was that since there is a debatable issue and there are long drawn arguments involved in respect of the applicability of section 50(1) of the Act to the facts of this case, section 154 of the Act cannot be invoked. Learned counsel further submitted that when there are other provisions like sections 147 and 263, etc., of the Act, the Income-tax Officer, ought not to have resorted to the provisions contained in section 154 of the Act. Learned counsel for the assessee further submitted that in view of the provisions contained in section 55(2) of the Act, there is debate in the matter of ascertaining the cost of acquisition by adopting the fair market value as on January 1, 1954, by exercising the option.
We have heard the rival submissions. In the above cited decisions, it was pointed out that the cost of acquisition of the depreciable asset is bound to be computed in accordance with section 50 of the Act. In other words, section 55(2) is applicable only in respect of sections 48 and 49 of the Act and it has no application to section 50 of the Act. Thus, where more than one High Court understood the provisions contained in section 50 and section 55(2) of the Act in a particular manner, it is not open to give a different interpretation other than what was given by the various High Courts as stated above. It cannot be said that there is any debatable issue in the matter of ascertaining the cost of acquisition under section 50 of the Act. Even during the time when the Tribunal passed its order, two decisions rendered by the Gujarat High Court and the Allahabad High Court cited supra were available on this aspect. Therefore, it cannot be said that there is any debatable issue or long drawn arguments involved in understanding or interpreting the provisions of section 50 of the Act. In the case of T. Manickavasagam Chettiar v. CIT [1983] 143 ITR 269, this court has held that if a provision which is inapplicable to the facts, has been applied, then it is a mistake on the face of the record. Similarly, in the case of CIT v. Sundaram Textiles Ltd. [1984] 149 ITR 525, this court has held that the application of a wrong provision of the Act or the erroneous application of the same to the facts of the case, which do not call for such application, will amount to a mistake apparent on the record for the purpose of section 154 of the Act. In the present case, the Income-tax Officer applied the wrong provision of law in the original assessment while permitting the assessee to exercise its option to adopt the fair market value as on January 1, 1954, as the cost of acquisition of the depreciable asset. This was permitted on the mistaken application of law. Later on by invoking the provisions of section 154 of the Act the Income-tax Officer withdrew the permission given to the assessee to exercise its option to adopt the fair market value as on January 1, 1954. Since there is an error apparent on the face of the record in passing the original assessment order, warranting application of section 154, the order of the Tribunal was not correct in cancelling the rectification order passed by the authorities below under section 154 of the Act. In that view of the matter, we answer these questions referred to us in the negative and in favour of the Department. There will be no order as to costs.
