2004 (10) TMI 34 - HC - Income Tax

Capital gains tax transfer of property - 1. Whether, Tribunal was justified in holding that the assessee is liable to pay capital gains tax on a share of 25 per cent, of the total sale consideration in respect of property? - So far as the compromise agreement is concerned, it was incumbent upon the vendor-party No. 1 to pay the amount out of the sale proceeds. This, in no way diminished the shares of the four vendors. Their shares remained 1/4th each. Accordingly, capital gain was to be calculated on the basis of the assessee s ownership of the property to the extent of his share which was 25 per cent. - We are in agreement with the views expressed by the Tribunal that the capital gain is required to be computed on the basis of equal shares of the owners. - 2. Whether, Tribunal was justified in holding that the assessee was not entitled to deduction under section 48, in respect of the amount claimed to have been paid and received by Shri B.N. Soi from the sale proceeds of property? - Second question is also required to be answered against the assessee and in favour of the Revenue.

Summary

Issues:
1. Whether the assessee is liable to pay capital gains tax on a share of 25% of the total sale consideration in respect of a property.
2. Whether the assessee is entitled to a deduction under section 48 of the Income-tax Act, 1961, in respect of the amount claimed to have been paid and received by an individual from the sale proceeds of the property.

Analysis:
1. The first issue pertains to the transfer of a property and the liability to pay capital gains tax. The property in question was owned by the assessee, his wife, and their two sons. The sale deed clearly indicated that the vendors were the absolute owners of the property and were entitled to dispose of it. The confirming party, the father of the assessee, had no ownership rights in the property. A compromise agreement determined the division of the sale consideration among the parties. The court held that capital gains tax should be calculated based on the equal shares of the owners, and the payment made to the confirming party did not alter the computation of capital gains. Therefore, the answer to the first question was given in favor of the Revenue.

2. The second issue revolves around the deduction claimed under section 48 of the Act. The amount paid to the confirming party was argued to be an expenditure wholly and exclusively in connection with the transfer. However, the court found that the confirming party had no right, title, or interest in the property and the payment made to him was part of settling his claims, not related to the transfer itself. Unlike the case cited by the counsel, where the payment was for relinquished rights, in this scenario, the payment did not qualify as expenditure in connection with the transfer. Therefore, the court ruled against the assessee on the second question as well.

In conclusion, the court dismissed the appeal, upholding the decisions regarding the liability to pay capital gains tax and the entitlement to deduction under section 48 of the Income-tax Act, 1961.