2012 (11) TMI 387 - AT - Income Tax

Capital gain disallowance of loss assessed under Long Term Capital Gains suffered on transfer of investment in shares to J. K. Agri Genetic Ltd. Held that - AO while acting in section 154 of the Act on reappraisal of the facts were already available on record and upon change of opinion considered the very same transaction as demerger of an undertaking and disallowed the Long Term Capital Loss as not chargeable to tax on the ground that transfer of shares was part of demerger u/s. 2(19AA) of the Act - this adjustment did not amount to mistake apparent from record because there is no jurisdiction for the AO to decide this issue while acting u/s. 154 of the Act as this issue is highly debatable - enhancement of capital gains income was based upon change of opinion on the part of the A.O. which was beyond the purview of Sec. 154 of the Act which permits rectification of mistake which is apparent from record - AO could not by invoking Sec. 154 enhance the capital gains In favor of assessee

Summary

Issues:
1. Rectification of disallowance of loss assessed under Long Term Capital Gains on transfer of shares.
2. Computation of capital gain when net worth is negative.

Analysis:

Issue 1: Rectification of Loss on Transfer of Shares
The case involved cross appeals by the revenue and assessee regarding the rectification carried out by the Assessing Officer under section 154 of the Income Tax Act. The central issue was the disallowance of the loss assessed under Long Term Capital Gains on the transfer of investment in shares to a specific company. The assessee contested the rectification carried out by the Assessing Officer, arguing that there was no apparent mistake in the original assessment. The CIT(A) held that the issue was debatable with two possible views, concluding that there was no clear mistake justifying rectification. The Tribunal agreed with the CIT(A), dismissing the revenue's appeal on this issue.

Issue 2: Computation of Capital Gain with Negative Net Worth
The second issue revolved around the computation of capital gain when the net worth is negative. The revenue contended that the capital gain cannot exceed the capital receipt or be considered nil when the net worth is negative. In this case, the Assessing Officer rectified the assessment order by enhancing the Long Term Capital Gains based on a change of opinion regarding the net worth of an undertaking involved in a slump sale. The Tribunal analyzed the provisions of section 50B of the Act, which determine the computation of capital gains in such cases. It referred to precedents where negative net worth resulted in no capital gain being chargeable to tax. The Tribunal held that the Assessing Officer's interpretation was debatable, and the rectification under section 154 was not justified as it was based on a change of opinion. Consequently, the Tribunal dismissed the revenue's appeal and allowed the assessee's appeal on this issue.

In conclusion, the Tribunal dismissed the revenue's appeal and allowed the assessee's appeal in the judgment, emphasizing the importance of clear mistakes for rectifications under section 154 of the Income Tax Act.