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2012 (2) TMI 215 - AT - Income TaxTaxability on compensation received on transfer of Development Rights being the FSI and the right to load TDR on the land - capital gain - development agreement with developer - CIT (A) held FSI and TDR to be separate & distinct assets - while TDR did not have a cost, the FSI did and if both were transferred together, there was a cost for the asset and capital gains was chargeable assessee contesting the same - Held that - Receipts on assignment of FSI including originating from the plot of land and/or married to it and right to load consume and use FSI credit by way of TDR which was the subject matter of transfer by the Assessee was a capital asset in respect of which the cost of improvement could not be ascertained and therefore the receipts of consideration for transfer of the said rights cannot be brought to tax as the said receipts will be capital receipts and not capital gain. See CIT vs. B. C. Srinivasa Setty (1981 - TMI - 5845 - SUPREME Court) Decided in favor of assessee. Contention raised regarding dis-allowance of deduction u/s 24 by A.O. it is held that though the order of the AO or CIT(A) are not clear on this aspect, but the inevitable conclusion that one can reach is that the AO has allowed deduction u/s.24(a) Decided against the assessee.
Issues Involved:
1. Taxation of capital gain on sale of property. 2. Applicability of Section 50C of the Income Tax Act. 3. Deduction of payments to co-owners and other expenditures. 4. Deduction u/s 54F of the Income Tax Act. 5. Deduction u/s 24 of the Income Tax Act on house property income. Issue-wise Detailed Analysis: 1. Taxation of Capital Gain on Sale of Property: The primary issue was whether the consideration received by the assessee for allowing the development of property under a Development Agreement is chargeable to tax as capital gain under Section 45 of the Income Tax Act. The assessee, along with two co-owners, entered into a Development Agreement with a developer for the demolition of existing structures and new construction. The assessee contended that the consideration received was not chargeable to tax as capital gain because the right to load Transferable Development Rights (TDR) onto the property was acquired without any cost due to the Development Control Regulations for Greater Bombay, 1991. The Tribunal referenced the Supreme Court ruling in CIT v. B. C. Srinivasa Shetty, which held that if the cost of acquisition or improvement of a capital asset cannot be determined, the computation provisions fail, and no capital gain can be charged. The Tribunal concluded that since the right to load TDR had no cost of acquisition, the capital gains computation provisions could not apply, and the consideration received was a capital receipt not subject to tax. 2. Applicability of Section 50C of the Income Tax Act: The Revenue contended that the value of the property should be determined based on the value assessed by the registration authorities for stamp duty purposes, invoking Section 50C of the Income Tax Act. The Tribunal held that Section 50C applies only to immovable tangible assets, and TDR is an intangible asset. Therefore, the provisions of Section 50C were not applicable in this case. 3. Deduction of Payments to Co-owners and Other Expenditures: The assessee claimed deductions for payments made to co-owners and other expenditures such as solicitor's fees and architect's fees while computing the capital gains. The Assessing Officer (AO) rejected these claims due to a lack of substantiating evidence. The Tribunal did not delve into these deductions in detail since it concluded that the receipt itself was not chargeable to tax as capital gain. 4. Deduction u/s 54F of the Income Tax Act: The assessee argued for a deduction under Section 54F of the Income Tax Act, stating that the entire sum received was invested in a new flat. Given the Tribunal's conclusion that the receipts were not chargeable to tax as capital gain, this issue became redundant and was not addressed further. 5. Deduction u/s 24 of the Income Tax Act on House Property Income: The assessee claimed a deduction under Section 24(a) of the Income Tax Act on the income from house property. The AO estimated the income from house property at Rs. 50,000/- but did not explicitly allow the deduction under Section 24(a). The Tribunal inferred that the AO had implicitly allowed the deduction since the computation of house property income by the AO was higher than what was declared by the assessee. Therefore, the Tribunal upheld the order of the CIT(A) and dismissed this ground of appeal. Conclusion: The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's appeal. The key takeaway was that the consideration received for the development agreement, involving rights that had no ascertainable cost of acquisition, could not be taxed as capital gain under Section 45 of the Income Tax Act. Consequently, other related issues became redundant. The Tribunal also upheld the implicit allowance of the deduction under Section 24(a) for house property income.
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