2017 (8) TMI 1316 - HC - Income Tax

Amendment of clause (d) of proviso to Section 43(5) retrospectivity which excludes derivative transactions from the definition of speculation transaction - Nature of loss - Held that - Coming to issue No.1 raised by the court where Section 43(5)(d) is applicable retrospectively or not, without entering into the merits of the case, in view of the observations made by Madras High court in the case of CIT Vs. New Ambadi Estates (P.) Ltd. 2012 (3) TMI 79 - MADRAS HIGH COURT the provisions which are referred to speculative transactions, if it is done in the stock exchange shall not be speculative transaction and shall not be made applicable retrospectively. The view taken by Madras High Court will not govern Clause 43(5)(d). In that view of the matter, the issue is required to be answered in favour of the assessee and against the department. Section 50C non applicability on agreement to sale - Held that - This issue is already decided against the department in the case of Commissioner of Income Tax Vs. Sh. Jatin Haryani 2017 (12) TMI 55 - RAJASTHAN HIGH COURT wherein held t will not be out of place to mention here that those transactions which are shown as transaction under Section 50C (Explanation-2), even if taken into consideration, the transaction which take place as short term capital gain was in total consideration of the payment after sale and it cannot be assessed. - Decided in favour of the assessee and against the department

Summary

Issues Involved:

1. Whether the ITAT was justified in holding that the provisions of Section 43(5)(d) are applicable retrospectively.
2. Whether the ITAT was justified in holding that Section 50C cannot be made applicable on the agreement to sale, allowing the assessee to undervalue the property and evade tax and stamp duty.

Detailed Analysis:

Issue 1: Retrospective Application of Section 43(5)(d)

The appellant challenged the tribunal's decision which allowed the appeal of the assessee by reversing the views of the Assessing Officer and the CIT (A). The primary contention was whether the amendment to Section 43(5)(d) of the Income Tax Act, which excludes derivative transactions from being considered speculative transactions, is applicable retrospectively from 01.04.2006.

The appellant's counsel argued that the tribunal erred in making the provision retrospective. He cited the Bombay High Court's decision in *Commissioner of Income Tax Vs. Shri Bharat R. Ruia (HUF)*, which stated that the amendment to Section 43(5)(d) is prospective and applies only from 01.04.2006. The court emphasized that the legislative intent was clear in specifying the effective date, and retrospective application was not warranted. The Gujarat High Court in *Kanubhai A-Patel Vs. Assistant Commissioner of Income Tax* also supported this view, distinguishing speculative transactions from hedging transactions and affirming that only the transactions specified in clauses (a), (b), and (c) of the proviso to Section 43(5) are excluded from being speculative.

The respondent's counsel relied on the Supreme Court's judgment in *Allied Motors Pvt. Ltd. Vs. Commissioner of Income Tax*, which held that provisions introduced to remedy unintended consequences and to make the section workable could be applied retrospectively. The Supreme Court in *Commissioner of Income Tax Kolkata-III Vs. Alom Extrusions Limited* also supported the retrospective application of amendments that are curative in nature.

Ultimately, the court held that the provisions referred to speculative transactions if done in the stock exchange are not to be considered speculative transactions and should not be applied retrospectively. The court decided this issue in favor of the assessee, aligning with the observations made by the Madras High Court.

Issue 2: Applicability of Section 50C on Agreement to Sale

The second issue was whether Section 50C could be applied to agreements to sale, potentially allowing the assessee to undervalue the property and evade taxes and stamp duty. This issue had already been decided against the department in *Commissioner of Income Tax Vs. Sh. Jatin Haryani*, where the court held that the transactions shown as short-term capital gains could not be reassessed under Section 50C if the total consideration was paid after the sale.

The court reiterated that both the authorities had committed no error in their conclusions regarding the applicability of Section 50C. Consequently, this issue was also decided in favor of the assessee and against the department.

Conclusion:

The court disposed of both appeals, ruling in favor of the assessee on both issues. The retrospective application of Section 43(5)(d) was not upheld, and the applicability of Section 50C on agreements to sale was confirmed as not applicable in the manner contended by the department.