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2010 (9) TMI 825 - AT - Income TaxQuestion of taxability of income - CIT(A) dismissed the appeal on the ground that the appeal is not maintainable inasmuch as the assessee has, on his own, offered the income to tax - held that - As held by the high court in Balmukund Acharya v. Dy. CIT (2008 -TMI - 32901 - BOMBAY HIGH COURT) merely because an assessee had offered something to tax, AO could not have declined to exercise his powers to give relief to the assessee by not taxing the same. It is in this perspective that the CIT(A) ought to have decided the appeal on merits, and the CIT(A) could not have rejected the same in limine. Order of the CIT(A) - held that - The question that the CIT(A) ought to have adjudicated was whether the AO, in the course of exercise of his powers under s. 143(1)(a), could have held that the capital gains on sale of property ought not to have been included in the income liable to be taxed for that assessment year. The CIT(A) completely overlooked the limitations placed on the AO under s. 143(1)(a) and proceeded to decide the matter as if the AO had arrived at his impugned conclusion in a regular scrutiny assessment. The CIT(A) took a wrong path, though, for the reasons we will now set out, he reached the right conclusion anyway. Surrender of tenancy right - Taxability under the head capital gain where cost of acquisition is NIL - held that - merely because an asset does not have a cost of acquisition, this fact per se cannot lead to the conclusion that the sale of such an asset will not lead to capital gains liable to be taxed. Capital gains on sale of premises - premises which was sold by the assessee had not cost the appellant anything in terms of money - Held that - cost of acquisition may be nil on the facts of a case but yet the cost of acquisition may have been incurred (such as by surrender of tenancy rights on the facts of this case) and it may be capable of being determined (market value of premises at the point of time when tenancy rights were surrendered), gains on sale of property, received on surrendering the tenancy rights, were taxable as capital gains in the hands of the assessee. The claim made by the assessee is ill conceived and devoid of any merits. We, therefore, approve the conclusions arrived at by the learned CIT(A) and decline to interfere in the matter, appeal is dismissed.
Issues Involved:
1. Taxability of capital gains on the sale of premises. 2. Applicability of Supreme Court judgment in ITO v. B.C. Srinivasa Setty. 3. Scope of adjustments under section 143(1)(a) of the Income Tax Act. 4. Cost of acquisition determination for capital gains computation. 5. Jurisdiction and powers of the Assessing Officer (AO) and Commissioner of Income Tax (Appeals) [CIT(A)] in processing returns and appeals. Issue-Wise Detailed Analysis: 1. Taxability of Capital Gains on the Sale of Premises: The primary issue was whether the capital gains on the sale of premises disclosed by the assessee in his income tax return should be taxed. The assessee argued that the capital gains were not taxable under section 45 of the Income Tax Act, as the premises sold did not have any cost of acquisition. The CIT(A) confirmed the AO's action in taxing the capital gains, which led to the appeal. 2. Applicability of Supreme Court Judgment in ITO v. B.C. Srinivasa Setty: The assessee relied on the Supreme Court judgment in ITO v. B.C. Srinivasa Setty, which held that if the cost of acquisition of an asset is indeterminate, the gains on its sale cannot be taxed. The CIT(A) disagreed, stating that the market value of the tenancy rights at the time of acquisition (when the premises were given free by the developer) should be considered the cost of acquisition. The Tribunal upheld this view, distinguishing between an asset with no cost of acquisition and an asset with an indeterminate cost. 3. Scope of Adjustments Under Section 143(1)(a) of the Income Tax Act: The Tribunal emphasized the limited scope of AO's powers under section 143(1)(a), which allows adjustments based only on the information available in the return and accompanying documents. The AO could not have excluded the capital gains from taxable income solely based on the assessee's claim that the asset had no cost of acquisition. The Tribunal noted that the AO's inaction (failure to exclude the capital gains) could be appealed against, as per the Bombay High Court's judgment. 4. Cost of Acquisition Determination for Capital Gains Computation: The Tribunal discussed the importance of determining the cost of acquisition for computing capital gains. It concluded that the market value of the tenancy rights at the time of acquisition should be considered the cost of acquisition. The Tribunal distinguished between assets with no cost of acquisition and assets with an indeterminate cost, stating that the former could still lead to taxable capital gains. 5. Jurisdiction and Powers of the AO and CIT(A) in Processing Returns and Appeals: The Tribunal highlighted the AO's duty to exercise his powers when warranted by the circumstances, even if the assessee did not request relief. The CIT(A) was directed by the Bombay High Court to decide the matter afresh, considering the AO's limited powers under section 143(1)(a). The Tribunal criticized the CIT(A) for not considering these limitations and deciding the matter as if it were a regular scrutiny assessment. Conclusion: The Tribunal dismissed the appeal, upholding the CIT(A)'s decision to tax the capital gains. It concluded that the AO was justified in not excluding the capital gains from taxable income during the processing of the return under section 143(1)(a). The Tribunal emphasized that the gains on the sale of premises received on surrendering tenancy rights were taxable as capital gains, and the assessee's claim was devoid of merit.
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