(Appeal from the judgment and order dated January 22 and 23, 1976, of the Gujarat High Court in Income-tax Reference No.122 of 1974. The judgment of the High Court is reported as C.I.T. v. Vania Silk Mills Pvt. Ltd. (1977) 107 ITR 300 (Guj).

Income-tax---

----Capital gains---Assessee letting out machinery on hire---Hirer insuring machinery---Insurance on reinstatement basis---Extensive damage caused by fire making machinery useless---Amount received by hirer from insurer for machinery paid over to assessee--- Insurance amount in excess of cost of machinery was not liable to capital gains tax---Question whether amount received spent in replacement of machinery was not relevant ---Extinguishment of right on account of destruction or loss of asset--Not "transfer"---Payment of insurance claim was not consideration for taking over damaged machinery-- Income-tax Act,1961, Ss. 2(47) & 45--[C.I.T. v. J.K. Cotton Spinning and Weaving Mills Co. Ltd. (1987) 164 ITR 18 (All.) overruled and C.I.T. v. Vania Silk Mills Pvt. Ltd. (1977) 107 ITR 300 reversed].

The appellant-company, which carried on the business of manufacture and sale of art-silk cloth, purchased during 1957 machinery worth Rs.2,81,741 and gave it on hire to Jasmine Mills at an annual rent of Rs. 39,000. Jasmine Mills, as bailee of the machinery, insured the machinery, along with it own machinery, against fire and the insurance policy contained a reinstatement clause requiring the insurer to pay the cost of the machinery as on the date of the fire, in case of destruction or loss. On August 11, 1966, a fire broke out in the premises of Jasmine Mills causing extensive damage to the machinery including the machinery hired from the appellant. The machinery belonging to the appellant became useless on account of the damage. On settlement of the insurance claim Jasmine Mills received a certain amount out of which it paid Rs.6,32,533 to the appellant on account of the destruction of the machinery. The Income-tax Officer brought to tax the sum of Rs.3,50,792, being the difference between the insurance amount received by the appellant for its machinery and the original cost thereof, as capital gains. The Appellate Tribunal, however, held that the insurance amount was not received by the appellant on the transfer of a capital asset but on account of the damage to its machinery and that section 45 of the Income-tax Act, 1961. was not attracted. On a reference, the High Court reversed the decision of the Tribunal. On appeal to the Supreme Court:

Held, reversing the decision of the High Court, (i) that capital gains tax was attracted under section 45 by transfer and not merely by extinguishment of rights howsoever brought about. Whatever the mode by which the transfer was brought about, the existence of the asset during the process of transfer was a precondition: unless the asset existed in fact, there could not be a transfer of it. The extinguishment of a right or rights should in any case be on account of its or their transfer in order to attract the provisions of section 45. If it was not, and was on account of the destruction or loss of the asset, it was not a transfer and did not attract the provisions of section 45 which related to transfer and not to mere extinguishment of a right. Hence, an extinguishment of right not brought about by transfer was outside the purview of section 45.

(ii) That in the case of damage, partial or complete or destruction or loss of the property, there was no transfer of it in favour of a third party. The money received under the insurance policy in such cases was by way cal indemnity or compensation for the damage, loss or destruction of the property. It was not in consideration of the transfer of the property or the transfer of any right in it in favour of the insurance company. It was by virtue of the contract of insurance or of indemnity, and in terms of the conditions of the contract.

(iii) That the fact that while paying for the total loss of of damage to the property, the insurance company took over such property or whatever was left of it, did not change the nature of the insurance claim which was indemnity or compensation for the loss. The payment by the insurance company was not in consideration of the property taken over by the insurance company.

(iv) That it was not necessary to inquire whether the amount received by the appellant was spent in replacement of the machinery or not.

(v) That, therefore, the difference of Rs.3,50,792 was not capital gains and was not chargeable to tax under section 45.

Since associated words and expressions like "sale", "exchange", etc, used in the definition of "transfer" in section 2(47), imply the existence of the asset and of the transferee, according .to the rule of noscitur a sociis, the expression "extinguishment of any rights" would take colour from those associated words and expressions and will have to be restricted to the sense analogous to them. If the Legislature had 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.

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 can the destruction of the right on account of the destruction of the asset be equated with the extinguishment of right on account of its transfer.

In an insurance policy with a reinstatement clause, the insurer is bound to pay the cost of the insured

property as on the date of destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for replacing the destroyed asset or for any other purpose.

C.I.T. v. J.K. Cotton Spinning and Weaving Mills Co. Ltd. (1987) 164 ITR 18 (All.) overruled.

C. Leo Machodo v. C.I.T. (1988) 172 ITR 744 (Mad) approved.

C.I.T. v. Vania Silk Mills Pv.t.Ltd. (1977) 107 ITR 300 reversed.

C.I.T. v. Amin (R.M.) (1971) 82 ITR 194 (Guj); C.I.T. v. Madurai Mills Co. Ltd. (1973) 89 ITR 45 (SC) and C.I.T. v. Mohanbhai Pamabhai (1973) 91 ITR 393 (Guj) ref.

Joseph Vellapally, Senior Advocate (K.J.John, Advocate, with him), Appellant.

S.C. Manchanda, Senior Advocate (Ranbir Chandra and Ms. A. Subhashini, Advocates, with him) for Respondent.

JUDGMENT

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 Jasmine Mills Pvt. Ltd., Bombay, at an annual rent of Rs.33,900. On August 11, 1966, a fire broke out in the premises of 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. Jasmine Mills had insured alongwith its own machinery, the assessee's machinery as well and, on a settlement of the insurance claim, 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 assessment year 1967-68 (relevant accounting year being the year ending on August 31, 1966), showed the said amount as profit chargeable to tax under section 41(2) of the Income -tax Act (hereinafter referred to as the "Act"). The Income-tax Officer, 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 section 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 section 45 read with section 2(47) of the Act, was negatived by the Income-tax Officer.

The assessee appealed against the order to the Appellate Assistant Commissioner 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 Income-tax Appellate 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 section 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 section 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 over the cost of the machinery received from Jasmine Mills Pvt. Ltd. was chargeable to tax as capital gains under section 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.

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 section 45 of the Act and is, therefore, chargeable to capital gains tax under the said section.

It would be convenient to reproduce here the provisions of section 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 sections 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 supplied)

Section 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 section 45 must arise from the transfer of the capital asset which is effected in the previous year. The transfer may be bought abbot by any of the modes of transfer which include sale, exchange, and 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 precondition. 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 itself. 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 can the destruction of the right on account of the destruction of the asset be equated with the extinguishment of right on account of its transfer. Section 45 speaks about capital gains arising out of "transfer" of asset and not on account of "extinguishment of right" by itself. Capital gains tax 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 section 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 section 45 which relate to transfer and not to mere extinguishment of right. Hence, an extinguishment of right not brought about by transfer is outside the purview of section 45. The High Court erred in ignoring the basic postulate that section 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, attracts section 45. '

Transfer presumes both the existence of the asset and of the transferee to whom it is transferred. In the case of 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 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 estimate 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 an indemnity or compensation for the loss. The payment of the 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 August 11, 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 Edition, vol. 25, under the heading "Insurance", in para 654).

It is true that the definition of "transfer" in section 2(47) of the Act is an "inclusive" definition 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 rights therein" are substituted for the word "transfer" in section 45, the claim or compensation received from the insurance company would attract 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 nositur 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 "estinguishment 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.

The High Court, as stated earlier, read the expression extinguishment of any rights" in the assets as any extinguishment of rights whether resulting in or on account of transfer. For the reasons, which we have discussed earlier, we Find that approach is not correct. For the same reasons, we are unable to accept the: reasoning of the High Court that for a "transfer" within the meaning of section 45, the asset need not exist. We are afraid that the High Court's reliance on C.I.T. v. R.M. Amin (1971) 82 ITR 194 (Guj) to hold that, for the transfer contemplated by section 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 the right of the assessee s hare holder in his share which was an incorporeal property had come about on account of receipt by him of the amount representing the 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 a quid pro quo and, therefore, transfer of the property or of the rights in the property, whether the property is corporeal or incorporeal.

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 a 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 hands as a 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. 'min's case (1971) 82 ITR 194 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 C.I.T. v. Madurai Mills Co. Ltd. (1973) 89 ITR 45, 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 assets or extinguishment of any of his rights 11 such assets.

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 hi 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 C.I.T. v. Muhanbhai Pamabhai (1973) 91 ITR 393 (Guj), no part of the amount received by the assessee as a retired partner is assessable to capital gains tax under section 45.

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 it, right, if any, to recover damages under law or contract for the loss or damage 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 an 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 Jasmine Mills, as a bailer, 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 proved to the contrary. 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.

We are also unable to see how it would make any difference to the point involved in the present case, viz., whether Jasmine Mills had insured the assessee's machinery as bailee or as agent of the assessee. There is further no dispute that the insurance policy contained a 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 a 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. In the circumstances, for the purposes 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.

For the reasons given' above, the decision of the Allahabad High Court in C.I.T. v. J.K. Cotton Spinning and Weaving Mills Co. Ltd. (1987) 164 ITR 18 which proceeds on the same reasoning as the impugned judgment is also not good law. Instead, we approve of the conclusion reached by the Madras High Court in C. Leo Machodo v. C.I.T. (1988) 172 ITR 744 for the reasons given by us above.

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.

M.BA./1218/T

Appeal allowed.