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Raja Dhanraj Girji Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberCase Referred No. 7 of 1967
Judge
Reported in[1971]79ITR563(AP)
ActsIncome Tax Act, 1922 - Sections 10; Income Tax Act, 1842
AppellantRaja Dhanraj Girji
RespondentCommissioner of Income-tax
Appellant AdvocateP. Rama Rao, Adv.
Respondent AdvocateT. Anantha Babu, Adv.
Excerpt:
.....- on sale of these shares certain profit accrued to assessee - whether surplus realised on sale is profit from business assessable to tax under section 10 - assessee contended that purchase and sale was an isolated transaction and does not amount to adventure in nature of trade - court observed that intention of purchasing shares was to make quick profit and not to earn dividend - held, income would be assessable to tax as transaction was an adventure in nature of trade and profit from sale of shares was business profit. - - he drew a distinction between cases of purchase and sale of commercial commodities where an inference may readily be drawn that a transaction was an adventure in the nature of trade and cases of sale and purchase of commodities not ordinarily commercial,..........nature of the transactions, the manner in which the books were maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and the sales and the holdings, the tribunal held that the profits were business profits. their lordships of the supreme court accepted that finding. referring to the case of g. venkataswami naidu & co. v. commissioner of income-tax, 0065/1958 : [1959]35itr594(sc) their lordships summarised the effect of that decision in these words :' . . . . this court held that before the tribunal could come to the conclusion that it was an adventure in the nature of trade, it had to take into consideration the legal requirements associated with the concept of the trade or business and that such a question was a mixed question of law and fact......
Judgment:

Chinnappa Reddy, J.

1. The assessee is Raja Dhanraj Girji and in this reference we are concerned with the assessment for the assessment year 1957-58, in respect of the period of account year ending on November 2, 1956. On May 9, 1955, the assessee pledged certain jewels with Messrs. Guzdar Ltd., Bombay, and obtained a loan of Rs. 3,20,000. He also sold some jewels for a sum of Rs. 68,000. With this amount of Rs. 3,88,000 the assessee purchased 4,087 tolas of gold from Messrs. Choksi Manilal Chimanlal and Co., Bombay, between September 23, 1955, and October 11, 1955, for a sum of Rs. 3,87,954. The loan due to Messrs. Guzdar Ltd. was discharged by selling the jewels pledged with them. The 4,087 tolas of gold purchased by the assessee was again sold by the assessee to Messrs. Jhaveri Brothers of Hyderabad, through a broker, Kapurchand Shrimal, between November 20, 1955, and November 27, 1955, for a sum of Rs. 3,87,111. In the transaction of purchase and sale of gold the assessee thus sustained a loss of Rs. 843. With the sale proceeds of the gold the assessee purchased on December 1, 1955, 4,000 shares of Sirpur Paper Mills Ltd. for a sum of Rs. 3,77,142-13-9. These shares were again sold by the assessee through the broker, Kapurchand Shrimal, on January 31, 1956, and March 27, 1956, for a total sum of Rs. 4,79,829. This resulted in a net profit of Rs. 1,02,686 to the assessee. With the sale proceeds the assessee proceeded to purchase shares of M. S. K. Mills, Hyderabad Construction Company, Praga Tools Ltd., Sir Silk Ltd. and Azam Jahi Mills Ltd. on November 22, 1956, for a sum of Rs. 1,79,689. These shares were again sold in the subsequent year. On these facts the Income-tax Officer held that the purchase and sale of these shares of Sirpur Paper Mills Ltd. was an adventure in the nature of trade and, therefore, the profit of Rs. 1,01,842 was assessable to income-tax. The Income-tax Officer held that the intention of the assessee was to take advantage of the rising market in Sirpur shares and make a profit. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer holding that the circumstances showed that there was an organised venture in the nature of trade. On further appeal, the Income-tax Appellate Tribunal confirmed the order of assessment. The Tribunal held that the chain of transactions, the pledging of jewellery, the borrowing of money, the purchase of gold with the borrowed money, the sale of gold, the purchase of shares with the sale proceeds of gold and the sale of shares after a short interval indicated that the assessee was impelled by a profit motive and that it was not a case of mere change of investment. The Tribunal also referred to the circumstance which was brought to its notice by the departmental representative that, during the assessment year 1954-55, the assessee himself had returned a small net profit in 'speculative business in shares, cotton and castor seeds'. The Tribunal had no hesitation in concluding that the purchase and sale of shares in the accounting year was a venture in the nature of trade. At the instance of the assessee the Tribunal has referred for our decision the following question:

'Whether the finding that the surplus of Rs. 1,01,842 realised by the assessee on the sale of shares of Sirpur Paper Mills Ltd. is a profit from business assessable to tax under Section 10 of the Income-tax Act, 1922, is in law justified ?'

2. Sri P. Rama Rao, learned counsel for the assessee contended that the purchase and sale of shares of Sirpur Paper Mills Ltd. was an isolated transaction during the accounting year and that the mere fact that the transaction was impelled by a profit motive would not make it an adventure in the nature of trade. He submitted that shares were investment, a potential source of revenue to the purchaser as long as he held the shares, unlike commercial commodities which could not be turned to account except by a process of realisation. He invited our attention to the observations of the House of Lords in Jones v. Leeming, [1930] A.C. 415; 15 T.C. 333, 354, 357 (H.L.). In that case certain persons joined together to purchase a rubber estate in the Malay Peninsula with the sole intention of reselling it to a company for public floatation. The question arose whether the profit made by the resale of the estate was assessable to income-tax. The Commissioners found that the transaction 'was not a concern in the nature of trade' and the House of Lords proceeded to consider the case on that finding. Lord Buckmaster observed:

'This, brings the argument back to the original position. Can the profits made in this case be described as income Were the respondent a company promoter or were his business associated with purchase and sale of estates, wholly different considerations would apply, but this is negatived : the transaction in this case stands isolated and alone. It is to my mind, in the circumstances, purely an affair of capital. I can see no difference between it and what might have happened had the respondent bought shares in two companies which were going to be amalgamated, and then sold equivalent shares in the amalgamated company at a profit; an accretion to capital does not become income merely because the original capital was invested in the hope and expectation that it would rise in value ; if it does so rise, its realization does not make it income. If the Crown's contention were sound the same result would have arisen had the respondent taken shares in the company instead of cash, even though unrealized.'

3. He then quoted with approval the statement of Lawrence L.J. :

'It seems to me that in the case of an isolated transaction of purchase and resale of property there is really no middle course open. It is either an adventure in the nature of trade, or else it is simply a case of sale and resale of property.'

4. It will thus be noticed that the House of Lords accepted the finding of the Commissioners that the transaction was not a 'concern in the nature of trade' and proceeded further to consider the question whether despite that finding the profit could be considered to be income assessable to tax. The case is not of assistance to us in determining the question whether the transaction in the present case was an adventure in the nature of trade. Sri Rama Rao also relied on the observations of their Lordships of the Supreme Court in Janki Ram Bahadur Ram v. Commissioner of Income-tax, : [1965]57ITR21(SC) . In that case the assessee, a dealer in scrap iron and hardware, purchased and sold a jute pressing factory. The findings of the Tribunal were that the assessee never carried on business in jute at any time, that he never attempted to work the factory and that a warehouse was demolished by the assessee but was sold as part of the property. On those facts it was held by the Supreme Court that the purchase and sale of the property was not an adventure in the nature of trade and that the profit realised therefrom was not taxable. Shah J. pointed out that an analysis and review of several decided cases showed that no single fact was of decisive significance and that the question whether a transaction was an adventure in the nature of trade must depend upon the collective effect of all the relevant materials. He drew a distinction between cases of purchase and sale of commercial commodities where an inference may readily be drawn that a transaction was an adventure in the nature of trade and cases of sale and purchase of commodities not ordinarily commercial, like land, where it could not be assumed without more, that a transaction was a venture in the nature of trade. The learned judge emphasized that a profit motive in entering into a transaction was not decisive and that an accretion to capital did not become taxable income merely because the asset was acquired in the expectation that it may be sold at a profit. When he referred to commodities ordinarily commercial the learned judge was referring to common merchandise, but we do not see any reason for not applying the same principle to shares which are bought and sold in the market place like other commercial commodities.

5. Sri T. Anantha Babu, learned counsel for the department, referred us to the following observations of Lord Justice Clerk in Californian Copper Syndicate v. Harris, [1904] 5 T.C. 159, 165, 166 (Sc. Exchq.):

'It is quite a well-settled principle in dealing with questions of assessment of income tax that where the owner of an ordinary investment chooses to realise it, and obtains a greater price for it than he originally acquired it at, the enhanced price is not profit in the sense of Schedule D of the Income Tax Act of 1842 assessable to income tax. But it is equally well established that enhanced values obtained from realisation or conversion of securities may be so assessable, where what is done is not merely a realisation or change of investment, but an act done in what is truly the carrying on, or carrying out, of a business. The simplest case is that of a person or association of persons buying and selling lands or securities speculatively, in order to make gain, dealing in such investments as a business, and thereby seeking to make profits. There are many companies which in their very inception are formed for such a purpose, and in these cases it is not doubtful that, where they make a gain by a realisation, the gain they make is liable to be assessed for income-tax.

What is the line which separates the two classes of cases may be difficult to define, and each case must be considered according to its facts ; the question to be determined being--Is the sum of gain that has been made a mere enhancement of value by realising a security, or is it a gain made in an operation of business in carrying out a scheme for profit-making ?'

6. Relying on these observations, the learned counsel contended that the chain of transactions commencing with the pledging of the jewellery and ending with the sale of the shares revealed a scheme for profit making carried out by the assessee in a systematic manner.

7. The learned counsel next drew our attention to the observations of Gajendragadkar J. in Venkataswami Naidu & Co. v. Commissioner of Income-tax, 0065/1958 : [1959]35ITR594(SC) . The learned judge pointed out that the character of the transaction must be decided by the total effect of all relative factors and circumstances and that there was no general or universal test to determine the nature of a transaction. He pointed out that the nature of the commodity purchased and sold, the nature of the usual trade or business carried on by the assessee, the motive of the assessee in making the purchase, the conduct of the assessee subsequent to the purchase, the incidents associated with the purchase and sale, the repetition of such transactions of purchase and sale, the involvement of the element of pride of possession were some of the relevant circumstances which had to be taken into account. Referring to the test of purchase with the intention to resell at a profit the learned judge observed :

'The presence of such an intention is no doubt a relevant factor and unless it is offset by the presence of other factors it would raise a strong presumption that the transaction is an adventure in the nature of trade. Even so, the presumption is not conclusive ; and it is conceivable that, on considering all the facts and circumstances in the case, the court may, despite the said initial intention, be inclined to hold that the transaction was not an adventure in the nature of trade.'

8. Sri Ananth a Babu also relied upon the decision of the Supreme Court in Raja Bahadur Visheshwara Singh v. Commissioner of Income-tax, : [1961]41ITR685(SC) . That case also was concerned with the purchase and sale of shares by a zamindar. It was contended on behalf of the zamindar that the purchase and sale of shares was not his normal activity and that the profit made by him by purchase and sale of shares could not be subjected to income-tax as profit arising from an adventure in the nature of trade. Having regard to the substantial nature of the transactions, the manner in which the books were maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and the sales and the holdings, the Tribunal held that the profits were business profits. Their Lordships of the Supreme Court accepted that finding. Referring to the case of G. Venkataswami Naidu & Co. v. Commissioner of Income-tax, 0065/1958 : [1959]35ITR594(SC) their Lordships summarised the effect of that decision in these words :

' . . . . this court held that before the Tribunal could come to the conclusion that it was an adventure in the nature of trade, it had to take into consideration the legal requirements associated with the concept of the trade or business and that such a question was a mixed question of law and fact. It was also held that where a person invests money in land intending to hold it and then sells it at a profit it is a case of capital accretion and not profit derived from an adventure in the nature of trade, but if a purchase is made solely and exclusively with the intention to resell it at profit and the purchaser never had any intention to hold the property for himself there would be a strong presumption that the transaction is in the nature of trade, but that was also a rebuttable presumption.'

9. We thus see that the decided cases show that while there are several tests which may be applied and several factors which may be considered to ascertain whether a transaction is impressed with the character of trade, there is not a single test which is conclusive and not a single factor which is decisive. The ultimate test is, taking all factors and circumstances into consideration and giving due weight to all of them, what is the dominant impression left in the mind

10. In the present case, we have a chain of transactions commencing with the pledge of jewels and ending with the sale of shares in the next accounting year. The purchase and sale of shares of Sirpur Paper Mills Ltd. was an intermediate transaction. It would not be strictly correct to say that it was an isolated transaction. The shares were purchased with the undoubted intention of re-selling them at a profit. The shares no doubt were a revenue yielding investment so long as they were held by the assessee. But it was not with the intention of earning dividends that the shares were purchased by the assessee. They were purchased with the sole intention of making a quick profit in a rising market. In addition we have also the circumstance that the assessee is no stranger to speculative business in shares. During the assessment year 1954-55, he himself had turned an income, small no doubt, from 'speculative business in shares, cotton and castor seeds'. We have, therefore, no hesitation to hold that the transaction was an adventure in the nature of trade and that the profit arising from the sale of shares of Sirpur Paper Mills Ltd. was 'business profits'. The question referred to us is accordingly answered in favour of the department. The assesses will pay the costs of the reference.


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