$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
17 & 18
+ W.P.(C) 1962/2013 & CM No.3741/2013
PRIYA DESH GUPTA ..... Petitioner
Through: Mr Salil Aggarwal and Mr Ashish
Kumar, Advocates.
Versus
DEPUTY COMMISSIONER OF INCOME TAX ..... Respondent
Through: Mr Zoheb Hossain, Senior Standing
Counsel and Mr Deepak Anand, Junior Standing
Counsel.
AND
+ W.P.(C) 2015/2013 & CM No.3834/2013
ABHA GUPTA ..... Petitioner
Through: Mr Salil Aggarwal and Mr Ashish
Kumar, Advocates.
Versus
DEPUTY COMMISSIONER OF INCOME TAX ..... Respondent
Through: Mr Zoheb Hossain, Senior Standing
Counsel and Mr Deepak Anand, Junior Standing
Counsel.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE VIBHU BAKHRU
ORDER
% 16.05.2016
W.P.(C) 1962/2013 & 2015/2013 Page 1 of 20
VIBHU BAKHRU, J
1. The Petitioners have filed these petitions assailing separate notices
issued under Section 148 of the Income Tax Act, 1961 (hereafter 'the Act')
seeking to reopen their respective assessments for Assessment Year (AY)
2007-08. The Petitioners also impugn orders dated 18th March, 2013
rejecting their respective objections against assumption of jurisdiction under
Section 147 of the Act.
2. The Petitioners along with other promoter shareholders held 36.63%
of the paid-up share capital of M/s Phoenix Lamps Limited (hereafter
,,PLL), a public listed company engaged in the business of manufacturing,
selling and marketing of automotive lamps, compact fluorescent lamps and
other general lighting lamps. The Petitioners sold their shares in PLL in
terms of a warrant subscription and share purchase agreement and the gains
therefrom were assessed to tax under the Act as Capital Gains. According to
the Revenue, part of the consideration received by the Petitioner Rs. 38 per
share is non-compete fee and is assessable as business income. This is the
principal reason recorded by the Assessing Officer (AO) for believing that
the income of the Petitioners for AY 2007-08 had escaped assessment.
W.P.(C) 1962/2013 & 2015/2013 Page 2 of 20
3. The Petitioners contend that the entire transaction was examined in
detail by the AO during the assessment proceedings which culminated in
assessment orders under Section 143(3) of the Act. They submit that in the
given facts, the impugned notices are occasioned by a mere change of
opinion and AO does not have any fresh tangible material which would
provide him a reason to believe that their respective incomes for AY 2007-
08 have escaped assessment.
4. Since the material facts and the controversy involved in these two
petitions are similar, the same were heard together. For the sake of brevity,
the facts relating to W.P. (C) 1962/2013 are noticed hereunder.
4.1 The Petitioner, Smt. Priya Desh Gupta (hereafter 'the Assessee') held
14.68% of the paid-up equity capital of PLL at the material time.
4.2 On 3rd July, 2006, the Assessee alongwith other promoter
shareholders, holding an aggregate 36.63% of the shareholding in PLL,
entered into a tripartite Warrant Subscription and Share Purchase Agreement
(hereafter referred to as ,,the WSSPA') with two Mauritian companies, M/s
Argon India Ltd. and M/s Argon South Asia Ltd. (hereafter 'the Acquirers'),
for sale of their entire shareholding in PLL. In terms of the WSSPA, the
W.P.(C) 1962/2013 & 2015/2013 Page 3 of 20
consideration for the shares was fixed at Rs.152 per share. In addition, the
shareholders were also entitled to a consideration of Rs.38 per share as non-
compete fee. Since the PLL is a public listed company and the shareholding
sought to be acquired by the Acquirers was in excess of the specified limit,
the Acquirers were obliged to make an open offer in terms of the SEBI
(Substantial Acquisition of Shares and Takeovers) Regulations, 1997. In
terms of the aforesaid Regulations, the Acquirers furnished a draft Letter of
Offer seeking to acquire shares from public at the rate of Rs. 152 per share.
By a letter dated, 27th December, 2006, Securities and Exchange Board of
India (SEBI) directed the Acquirers to revise the offer price by including the
non-compete fee payable to the promoter shareholders; that is, from Rs. 152
per share to Rs. 190 per share.
4.3 Thereafter, on 28th December, 2006, the Assessee as well as other
promoter shareholders of PLL entered into a revised agreement (hereafter
,,the revised WSSPA) whereby the sale price for each share of PLL payable
to the Assessee and other promoter shareholders, was revised to Rs.190 per
share; the non-compete fee of Rs. 38 per share was deleted but the covenant
not to compete was retained in the revised WSSPA.
4.4 The Assessee filed her return of income for AY 2007-08 on 31st
W.P.(C) 1962/2013 & 2015/2013 Page 4 of 20
October, 2007 declaring an income of Rs.65,75,85,234/-. In the said return,
the Assessee declared long term capital gains of Rs. 62,63,35,779/- and
short term capital gains of Rs.46,68,008/- taxable at the lower rate of 10%.
The return filed by the Assessee was picked-up for scrutiny. Thereafter, a
notice under Section 142(1) of the Act alongwith a questionnaire was issued
by the AO on 27th May, 2009. In response to the aforesaid notice, the
Assessee provided the necessary documents including Statement of Affairs,
Balance Sheet and Profit and Loss Account for financial year 2005-06 and
2006-07 along with Computation of Income and Audit Report for financial
year 2006-07.
5. The AO examined the documents furnished by the Assessee and
during the course of assessment proceedings, also called upon the Assessee
to furnish further information and documents. In response to the queries
raised by the AO during the assessment proceedings, the Assessee furnished
further information and documents under the cover of letters dated 20th July,
2009, 12th August, 2009 and 31st August, 2009. The documents furnished by
the Assessee included WSSPA dated 3rd July, 2006, revised WSSPA dated
28th December, 2006 , SEBI's letter dated 27th December, 2006 as well as a
detailed statement indicating the dates of acquisition of shares. The Assessee
W.P.(C) 1962/2013 & 2015/2013 Page 5 of 20
also provided statement of shareholding by Stock Holding Corporation of
India Ltd., indicating the shares held by the Assessee in PLL.
6. After examining the statements and documents furnished by the
Assessee, the AO found that Securities Transaction Tax (STT) had not been
paid in respect of sale of shares resulting in short-term capital gains to the
extent of Rs.45,51,121/- out of the declared short-term capital gains of
Rs.46,68,008/-. He, accordingly, passed an assessment order taxing the
aforesaid short-term capital gains of Rs. 45,51,121/- at 30% instead of 10%
as claimed by the Assessee.
7. The Assessee received a notice dated 28th March, 2012 issued under
Section 148 of the Act for AY 2007-08 (impugned notice). The Assessee
requested for reasons for issuance of the said impugned notice and the same
were provided during the course of hearing scheduled by the AO. The
Assessee has filed her objections to the said reasons which were disposed of
by an order dated 18th March, 2013. The said order is also impugned by the
Assessee.
Reasons for reopening of assessment
8. The reasons recorded by the AO indicates that he had received
W.P.(C) 1962/2013 & 2015/2013 Page 6 of 20
information from CIT(A) X pointing out that as per the WSSPA dated 3rd
July, 2006, the consideration payable to the Assessee for her shares of PLL
was agreed at Rs.152 per share and in addition Rs.38 per share was to be
paid as non-compete fee. The reasons further noted that during the course of
assessment proceedings, the Assessee had produced the original WSSPA as
well as the Letter of Offer issued by the Acquirers for acquiring a minimum
of 20% of the public shareholding at the rate of Rs.190 per share in
accordance with the SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations, 1997. The AO noted that the SEBI advisory to revise the offer
price for PLL shares to Rs.190 was made only for public shareholders and
not for promoter shareholders (including the Assessee). He observed that an
incorrect impression was given that the sale consideration for purchase of
shares of promoter shareholders including the Assessee was revised upwards
from Rs.152 to Rs.190 per share pursuant to the SEBI advisory. Although,
the revised WSSPA retained the non-compete clauses, no consideration was
ascribed to such provisions.
8.1 The AO concluded that since the revised WSSPA did not ascribe any
consideration for the non-compete covenants, it was not a valid contract and
was void. He proceeded to refer to provisions of the Indian Contract Act,
W.P.(C) 1962/2013 & 2015/2013 Page 7 of 20
1872 and various decisions rendered by the Courts wherein it was held that
agreements without consideration are void.
8.2 He, thus, concluded that the revised WSSPA was devoid of any
commercial substance and the sole motive for entering into the revised
WSSPA was to avoid tax.
8.3 In the aforesaid context, the AO recorded that the non-compete fee
calculated at Rs.38 per share payable in terms of WSSPA dated 3 rd July,
2006 was taxable as business income under Section 28(va) of the Act.
8.4 The AO further tabulated that 13,60,000 shares of PLL were acquired
by the Assessee "during 31st March, 2006" and 1,200 shares were acquired
by the Assessee "up to 19th May, 2006". He held that since the WSSPA was
entered into on 3rd July, 2006, these shares were held for a period less than
12 months and, therefore, qualified as short-term capital assets; but, the
Assessee had misled the Department into believing that all shares were held
by her for more than 12 months by submitting letters claiming that the
subject shares were held for more than 12 months.
Reasoning and Conclusions
9. It is apparent from the above that the AO has not referred to any
W.P.(C) 1962/2013 & 2015/2013 Page 8 of 20
material, other than what had been examined by the AO in the initial round
of assessment proceedings, for forming his belief that the Assessees income
for AY 2007-08 has escaped assessment; his belief is based solely on the
basis of material already examined by the AO during the first round of
assessment proceedings. A perusal of the reasons recorded by the AO also
indicate that the AO had initiated the proceedings for re-assessment,
apparently, pursuant to a letter sent by CIT(A) X who had opined that the
revised WSSPA was void and the consideration of Rs.38 per share should be
attributed to non-compete clauses. This, clearly, is a matter of opinion - and
a highly contested one at that - regarding agreements in question, namely
WSSPA and the revised WSSPA, which were duly considered by the AO at
the time of initial assessment.
10. It is also relevant to note that in the case of another promoter
shareholder of PLL, Hulas Rahul Gupta, who is also a party to WSSPA and
revised WSSPA, the AO had accepted the sale of shares of PLL at Rs.190
per share. Accordingly, the AO had not been consistent with what he had
done in the case of the Assessee; the AO assessed the gains from sale of
shares of PLL as capital gains in the hands of Hulas Rahul Gupta.
10.1 The Commissioner of Income Tax (hereafter ,,CIT) was of the view
W.P.(C) 1962/2013 & 2015/2013 Page 9 of 20
that the assessment made in the case of Hulas Rahul Gupta for AY 2007-08
was erroneous as prejudicial to the interest of the Revenue. He, accordingly,
made an order under Section 263 of the Act dated 15th March, 2010
modifying the assessment order and directing the AO to treat a sum of
Rs.17,72,17,484/- as business income under Section 28(va) of the Act. The
Assessee in that case, Hulas Rahul Gupta, preferred an appeal before the
Income Tax Appellate Tribunal (being ITA No. 1577/Del/2010) assailing
the order dated 15th March, 2010 passed under Section 263 of the Act.
10.2 In those proceedings before the Tribunal, it was contended on behalf
of the Revenue that a reading of the WSSPA indicated that Rs.38 per share
was taxable as income from business under Section 28(va) of the Act. The
written submission filed on behalf of the Revenue referred to various
provisions of the Indian Contract Act, 1872 and claimed that the revised
WSSPA was void; these are echoed in the reasons recorded by the AO in the
present case. The Assessee, on the other hand, contended that there was no
justification for segregating the consideration paid in terms of the revised
WSSPA. The Assessee further pointed out that more than 20% of the shares
of PLL were acquired by the Acquirers from public at a price of Rs.190 per
share and thus, there was no reason to hold that the sale price of shares in the
W.P.(C) 1962/2013 & 2015/2013 Page 10 of 20
case of the Assessee was lower. It was further pointed out by the Assessee
that there was no grievance that the AO had not examined the relevant
agreements and the scope of Section 263 of the Act could not be invoked
where two views were possible.
10.3 After hearing the rival contentions, the Tribunal observed that the CIT
had passed an order under Section 263 of the Act on the ground that the AO
had applied incorrect provisions of law while assessing the income and there
was no allegation that proper enquiry had not been held. The Tribunal
further rejected the contention advanced on behalf of the Revenue that the
revised WSSPA was void as per Sections 10, 25 and 27 of the Indian
Contract Act, 1872. It held that the parties were competent to enter into a
contract, and fix the price for the subject shares. The Tribunal further noted
that it was not the Revenue's case that the shares were sold at a price lower
than that available in the market and held that the Revenue did not have the
power to hold that the shares were sold by charging a non-compete fee
where the revised WSSPA did not reflect so. The Tribunal also rejected the
Revenue's contention that the revised WSSPA was a colourable device to
avoid tax. The Tribunal finally concluded that the AO had taken one of the
possible views and could not be stated to have applied any incorrect
W.P.(C) 1962/2013 & 2015/2013 Page 11 of 20
provisions of law. Accordingly, the appeal filed by the Assessee was
allowed.
11. We are informed that the Revenue has not preferred an appeal against
the aforesaid decision of the Tribunal. It is also relevant to note that the
reasons recorded by the AO in the present case is identically worded, in
certain material parts, as the written submissions filed on behalf of the
Revenue before the Tribunal in the case of Hulas Rahul Gupta. The AO
issued the impugned notice after the Revenue had failed in persuading the
Income Tax Appellate Tribunal to accept their submissions; the impugned
notice dated 28th March, 2012 was issued five days after the pronouncement
of the decision by the Income Tax Appellate Tribunal in the aforementioned
case of Hulas Rahul Gupta.
12. The queries raised by the AO and the submissions made by the
Assessee in response thereto amply bear out that the AO had examined the
WSSPA, the revised WSSPA and the letter dated 27th December 2006 issued
by SEBI to revise the public offer price for PLL shares from Rs. 152 per
share to Rs. 190 per share. In these given facts, there could be no dispute
that the AO had examined all relevant facts with regard to the sale price of
the shares in question and had made the assessment accordingly.
W.P.(C) 1962/2013 & 2015/2013 Page 12 of 20
13. Insofar as the allegations that certain shares were held by the Assessee
for a period less than 12 months is concerned, the same is disputed by the
Assessee. During the course of proceedings, Mr Salil Aggarwal, learned
counsel for the Assessee has handed over a statement of shareholding as
enclosed with the Assessee's letter dated 12th August, 2009. This statement
clearly discloses various dates on which subject shares were acquired by the
Assessee. This indicates that certain shares had been acquired by the
Assessee by way of a gift. Undisputedly, for the purposes of considering
whether the same were long-term capital assets or not, the date on which the
donor acquired the shares is relevant and not the date on which the Assessee
aquired the shares in question. In any view of the matter, it is not disputed
that the statement of shareholding indicating the dates on which the subject
shares were acquired was provided to the AO in response to the queries
raised by him. Thus, it cannot be accepted that the AO did not consider the
same while making the assessment order. Thus, it is apparent that the
present case is one where the issuance of the impugned notice is occasioned
by a change of opinion, which given the scope of Section 147-148 of the
Act, is impermissible.
14. In this context, it is relevant to refer to the decision of a Full Bench of
W.P.(C) 1962/2013 & 2015/2013 Page 13 of 20
this Court in CIT v. Usha International Ltd.: (2012) 348 ITR 485 (Delhi)
had held as under:-
"Re-assessment proceedings will be invalid in case an issue or
query is raised and answered by the assessee in original
assessment proceedings but thereafter the Assessing Officer
does not make any addition in the assessment order. In such
situations it should be accepted that the issue was examined but
the Assessing Officer did not find any ground or reason to make
addition or reject the stand of the assessee. He forms an
opinion. The re-assessment will be invalid because the
Assessing Officer had formed an opinion in the original
assessment, though he had not recorded his reasons."
15. Following the aforesaid decision, a Division Bench of this Court in
Maruti Suzuki India Limited v. Deputy Commissioner Of Income Tax:
[2013] 356 ITR 209 (Delhi) had explained that in cases where no query is
raised, it must be held that the Assessing Officer had examined the subject
matter even though there may not be any discussion in the assessment order.
The Court had referred to the decision in Usha International (supra) and
observed as under:-
"It is apparent from the above extract that even in cases where
no query is raised by the assessing officer in the course of the
original assessment proceedings it may yet be held that the
assessing officer had examined the subject matter. This is so
because the aspect or question in issue may be too apparent and
obvious. However, the Full Bench cautioned by stating that
such cases would have to be examined individually. It is,
W.P.(C) 1962/2013 & 2015/2013 Page 14 of 20
therefore, clear that even where no query is raised by the
assessing officer and there is no discussion in the assessment
order, it may yet be a case where the assessing officer would be
considered to have examined the issue. However, we are not
concerned with those type of cases inasmuch as in the present
case the assessing officer had clearly raised a specific query
with regard to bad debts/advances written off and the
petitioner/assessee had given details in respect thereof. It is
obvious that since no such addition was made on that count, the
assessing officer had considered and examined the position and
held in favour of the petitioner/assessee. Therefore, we can
safely conclude that, in the facts and circumstances of the
present case, the assessing officer had, indeed, examined the
issue at the time of the original assessment proceedings and had
formed an opinion by not making any addition in respect
thereof. Thus, the reopening of the assessment which had been
concluded on 13.03.2006, would be nothing but a mere change
of opinion."
16. A similar view was expressed by the Supreme Court in CIT v.
Kelvinator of India Ltd.: [2010] 320 ITR 561 (SC), wherein it
authoritatively held that a mere change of opinion cannot be a reason to re-
open assessments. The relevant extract from the said decision is as under:-
"6. On going through the changes, quoted above, made to
section 147 of the Act, we find that, prior to the Direct Tax
Laws (Amendment) Act, 1987, re-opening could be done under
the above two conditions and fulfilment of the said conditions
alone conferred jurisdiction on the Assessing Officer to make a
back assessment, but in section 147 of the Act (with effect from
1st April, 1989), they are given a go-by and only one condition
has remained, viz., that where the Assessing Officer has reason
to believe that income has escaped assessment, confers
jurisdiction to re-open the assessment. Therefore, post-1st
W.P.(C) 1962/2013 & 2015/2013 Page 15 of 20
April, 1989, power to re-open is much wider. However, one
needs to give a schematic interpretation to the words "reason to
believe" failing which, we are afraid, section 147 would give
arbitrary powers to the Assessing Officer to re-open
assessments on the basis of " mere change of opinion", which
cannot be per se reason to re-open. We must also keep in mind
the conceptual difference between power to review and power
to re-assess. The Assessing Officer has no power to review; he
has the power to re-assess. But re-assessment has to be based
on fulfilment of certain pre-condition and if the concept of "
change of opinion" is removed, as contended on behalf of the
Department, then, in the garb of re-opening the assessment,
review would take place. One must treat the concept of "change
of opinion" as an in-built test to check abuse of power by the
Assessing Officer. Hence, after 1st April, 1989, the Assessing
Officer has power to re-open, provided there is "tangible
material" to come to the conclusion that there is escapement of
income from assessment. Reasons must have a live link with
the formation of the belief. Our view gets support from the
changes made to section 147 of the Act, as quoted hereinabove.
Under the Direct Tax Laws (Amendment) Act, 1987,
Parliament not only deleted the words "reason to believe" but
also inserted the word "opinion" in section 147 of the Act.
However, on receipt of representations from the Companies
against omission of the words "reason to believe", Parliament
re-introduced the said expression and deleted the word
"opinion" on the ground that it would vest arbitrary powers in
the Assessing Officer."
17. In Andhra Bank Ltd v. Commissioner of Income-tax: [1997] 225
ITR 447 (SC), the Supreme Court held that once the Income Tax Officer
had passed an order after taking into account the relevant facts, it was not
open for his successor to re-open the assessment at a later point of time. The
relevant extract of the said decision reads as under:-
W.P.(C) 1962/2013 & 2015/2013 Page 16 of 20
"The facts stated above clearly disclose that the Income-tax
Officer allowed the change in the method of accounting for the
assessment years concerned herein knowingly. It was not a case
of an inadvertent mistake which was discovered later on after
completion of the assessment or oversight. Once it is found that
the change in the method of accounting was knowingly allowed
by the Income-tax Officer after taking into account all the
relevant facts it is not permissible for the Income-tax Officer, or
his successor, to reopen the assessment at a later point of time
under section 147(b) of the Income-tax Act unless any
information comes from an extraneous source. Further, we fail
to see what is the "information" available to the Income-tax
Officer in this case on the basis of which he is seeking to
reopen the assessments under clause (b) of section 147. We find
none. Indeed, this appears to be a case of mere change of
opinion. The principles enunciated in Kalyanji Mavjis case
[1976] 102 ITR 287 (SC) cannot save the impugned action of the
Income-tax Officer."
18. Mr Zoheb Hossain, the learned counsel appearing for the Revenue
contended that the Petitioners had failed to fully and truly disclose the
relevant material. In our view, the said contention is not relevant as the
impugned notice was issued within a period of four years from the end of
the relevant assessment year and, therefore, the proviso to Section 147(1) of
the Act is not attracted.
19. Next, Mr Hossain contended that in terms of clause 20 of the SEBI
(Substantial Acquisition of Shares and Takeovers) Regulations, 1997, public
offer price for acquiring shares from public would necessarily also include
the consideration for a restrictive covenant agreed with the sellers, which
W.P.(C) 1962/2013 & 2015/2013 Page 17 of 20
triggers the obligation to make an open offer. He argued that the aforesaid
Regulations were framed pursuant to suggestions made by Justice Bhagwati
Committee for protection of minority shareholders. He contended that the
price of Rs.190 per share was fixed by SEBI taking into account the non-
compete fee. Be that as it may, in our view the aforesaid contentions are not
relevant as the issue at hand is not whether the assessment made by AO was
erroneous or not. The only question to be considered is whether the AO had
formed an opinion on the basis of all relevant facts. In the facts of the
present case, it is clear that the AO had made the assessment order after
taking into account all the relevant facts and, therefore, it is not open for his
successor to now re-open the said assessment without any further tangible
material giving rise to a reasonable belief that the Assessees income has
escaped assessment.
20. For the aforesaid reasons, W.P.(C) 1962/2013 is liable to be allowed.
21. The material facts relating to W.P.(C) 2015/2013 are also similar. In
that case the Petitioner, Abha Gupta held 2.35% of the shareholding of PLL
at the material time. She too had entered into the agreements alongwith other
promoter shareholders WSSPA and revised WSSPA - for sale of her
shareholding in PLL to the Acquirers. She filed her return of income for AY
W.P.(C) 1962/2013 & 2015/2013 Page 18 of 20
2007-08 declaring income of Rs.10,63,49,534/-. As in the case of Priya
Desh Gupta above, her return was also picked up for scrutiny and she also
provided all relevant documents including WSSPA and revised WSSPA to
the AO; who after examining the relevant facts passed an assessment order
under Section 143(3) of the Act on 5th October, 2009 accepting the income
declared by her.
22. A notice under Section 148 of the Act was issued to Abha Gupta on
21st March, 2012 calling upon her to file her return of income for AY 2007-
08. In response to the aforesaid notice, the Petitioner filed her return
declaring the income as originally declared by her. She also requested for
reasons to believe for issuance of notice under Section 148 of the Act which
was provided to her on 25th October, 2012. The reasons recorded in this
case are almost identical to the reasons as recorded in the case of Priya Desh
Gupta except that in this case, there is no allegation that any of the subject
shares held by the Petitioner were short-term capital assets.
23. The Petitioner objected to the reasons which were disposed of on 18th
March, 2013 in terms similar to those as in the case of Priya Desh Gupta.
24. For the reasons as stated above, this petition (W.P.(C) 2015/2013) is
W.P.(C) 1962/2013 & 2015/2013 Page 19 of 20
also liable to be allowed.
25. In view of the aforeasid, the notice dated 28th March, 2012 impugned
in W.P.(C) 1962/2013 and the notice dated 21st March, 2012 impugned in
W.P.(C) 2015/2013 are set aside. The re-assessment proceedings
commenced pursuant to the aforesaid impugned notices are quashed.
26. The petitions are allowed. The pending applications also stand
disposed of. However, in the circumstances, the parties are left to bear their
own costs.
VIBHU BAKHRU, J
S.MURALIDHAR, J
MAY 16, 2016
RK
W.P.(C) 1962/2013 & 2015/2013 Page 20 of 20
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