D.K.Kapur, J. - (1.) THERE are two petition under s. 256(2) of the IT Act, 1961 which were directed to be heard together but actually they turn on the same point and involve the same assessee in relation to the same asst. yr. 1974-75. The circumstances as to why there are two cases are as follows :
(2.) INITIALLY an appellate order was passed on 20th Aug., 1980. Then a miscellaneous application was moved by the assessee seeking rectification. This application was dismissed on 24th April, 1981. A reference application under s. 256(1) was filed in relation to the original appellate order resulting in a statement of the case being submitted to this Court but some of the question sought to be raised by the assessee were disallowed. The statement of case, is dt. 31st Jan., 1981. After the miscellaneous application was filed and rejected, another petition under s. 256(1) was moved which was also rejected on 14th Jan., 1982. A number of questions were sought to be raised in the case of the miscellaneous application but the Tribunals stated that none of those question arise out of the order of the Tribunal but really were connected with original order passed in appeal. In any event the assessee has moved ITC 36 of 1981 to submit that further questions arise out of the appellate order and has moved ITC 161 of 1982 to submit that the question of law arise out of the miscellaneous application. In actual fact, were find that the following two questions were referred by the Tribunal by its order dt. 31st Jan., 1981: "1. Whether, on the facts and in the circumstances of the case, the cancellation of equity shares numbering 20,001 to 25,000 of Hind Ceramics Limited consequent on the reduction of the share capital sanctioned by the Hon'ble High Court of Calcutta amounts to a transfer under s. 2(47) of the IT Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case the assessee company was entitled to claim a short term capital loss of Rs. 5 lakhs on reduction of capital of Hind Ceramics Ltd. sanctioned by the Calcutta High Court ?" The assessee wants a number of other question to be referred in ITC 36 of 1981. We have gone through the appellate order to find that the main controversy was regarding the loss claimed by the assessee said to arise out of the reduction of share capital of another company Hind Ceramics Limited. The assessee company had 25,000 shares of this company, which were reduced as a result of an order passed by the Calcutta High Court to 20,000 shares to a face value of Rs., 20 lacs. It is said that Hind Ceramics Ltd. had been suffering some loss and the reduction in share capital was made in order to adjust the reduced share capital against the carry forward loss in the profit & loss account. In any event the question before the Tribunal was whether the assessee could claim a loss of Rs. 5 lacs on this accounts. This was claimed to be a short term capital loss by the assessee company as the reduction in share capital took place soon after the company purchased the shares. The Tribunal had refused to make reference regarding certain questions but at the same time it has referred to this Court as question No. 2 a very widely framed question viz., "Whether, on the facts and in the circumstances of the case the assessee company was entitled to claim a short term capital loss of Rs. 5 lacs on reduction of capital of Hind Ceramics Ltd. sanctioned by the Calcutta High Court ?" It appears to us that this question is wide enough to cover the entire controversy being raised by the assessee company. It appears to us that Tribunal did not want to interfere with its own finding that there was a fictitious loss. We do not think that the Tribunal meant to say that this question of loss was not to be decided by the High Court. What it meant to say was that there was no actual loss in the normal sense resulting to the assessee because admittedly the assessee had not parted with any shares. The real question was as to whether a reduction in share capital brings about a loss to the petitioner without there being any sale of the shares left with it. The questions now sought to be raised in addition to the ones referred to us are as follows: "1. Whether, on the facts and in the circumstances of the case the transaction of the cancellation of equity shares numbering 20.001 to 25,000 of Hind Ceramic Limited consequent on the reduction of share capital sanctioned by the Hon'ble High Court of Calcutta has resulted in a non-existent loss as held by the Tribunal ? 2. Whether, the Tribunal's conclusion that the cancellation of the shares of Hind Ceramics ltd. carried out with the formal consent of the Hon'ble High Court of Calcutta was a mere device and not a straight forward commercial transaction is perverse in law inasmuch as the same is arrived at one mere conjectures and imaginations, by relying on irrelevant materials, ignoring the relevant materials and by partly relying on materials and partly relying on conjectures ? 3. whether, the Tribunal's conclusion that its capital assets remain the same as on the date of purchase and there was no actual loss is perverse as the same is arrived at on mere conjectures and imaginations, by relying on irrelevant materials ignoring the relevant materials and by partly relying on materials and partly relying on conjectures ?" It will be useful to just shortly examine these three questions inspite of them being some what different from the questions that were disallowed by the Tribunal. The first of these question related to the non-existent loss held by the Tribunal. In fact the Tribunal did not hold the loss to be non-existent. In fact the Tribunal had held that here was no actual loss in the sense that the share- holding of the petitioner assessee had remained intact except that on account of the reduction in share capital the number of shares was altered. It may be that some scripts may have been cancelled but as to whether it resulted in a gain or a loss would depend probably on the market price which could be realised if the shares are sold. In that sense there was no actual loss. We think the question referred to us covers the real controversy in the case, which is as to whether on the facts of this case a short term capital loss was suffered by the petitioner. The second questions as to whether it was a mere device to create a loss, we think is an irrelevant questions because, if the loss is allowed under the IT Act, 1961 whether it has brought about a device or otherwise would not be very material. The Third question sought to be referred suffers form the same objection. It is really an analysis of the reasoning of the Tribunal regarding the nature of the loss. To put it differently, if the extinguishment or reduction of the share capital of the assessee company in Hind Ceramics Ltd. amounts to a transfer in law then it could be argued that some of that share capital has been extinguished. In such a sense the question before the Court will be whether it amounts to a capital loss or not. This is the question discussed in the Tribunal's judgment and we think the question remains to be answered. We think that the above observations regarding the scope of the question are sufficient to dispose of this application. The real point is that there is a question to be answered by this Court, and it is not decided as a question of fact by the Tribunal. The parties will bear their own cost. ;