2007 (4) TMI 148 - AT - Income Tax

Capital gain Revenue contended that the non-resident was not entitled to indexation u/s 48 of the Act and therefore was not eligible to rely on section 55(2)(b)(i) Held that revenue contention was not correct and allowed assessee appeal

Summary

Issues:
1. Computation of long-term capital gains on sale of shares acquired by a Canadian company from an Indian company.
2. Availability of the option to substitute Fair Market Value (FMV) as on April 1, 1981, as the cost of acquisition under section 55(2)(b)(i) for shares acquired before April 1, 1981.
3. Determination of the applicable tax rate on capital gains.
4. Cost of acquisition of bonus shares allotted before and after April 1, 1981.
5. Liability of interest under section 234B of the Income-tax Act.

Analysis:

1. The case involved the computation of long-term capital gains arising from the sale of shares of an Indian company by a Canadian company. The shares were acquired over a period of time, and the capital gains tax was computed based on the sale price and the cost of acquisition of the shares.

2. The main issue was whether the assessee, being a non-resident, could avail the option of substituting the FMV as on April 1, 1981, as the cost of acquisition for shares acquired before April 1, 1981. The Assessing Officer and the Commissioner of Income-tax (Appeals) initially held that the assessee could not avail of this option based on a previous Tribunal decision. However, the Bombay High Court directed the Tribunal to decide the liability of the appellant independent of section 48 of the Act.

3. The Tribunal analyzed the provisions of sections 48, 49, and 55 of the Income-tax Act to determine that section 55(2)(b)(i) provides an independent option for the assessee to opt for the FMV as on April 1, 1981, as the cost of acquisition. The Tribunal held that the assessee was entitled to this benefit and directed the assessing authority to compute the capital gains accordingly.

4. Regarding the applicable tax rate on capital gains, the Tribunal referred to a previous ruling by the Authority for Advance Rulings (AAR) and held that the assessee was entitled to a concessional tax rate of 10% under section 112(1) of the Act, instead of the 20% rate determined by the Assessing Officer and upheld by the Commissioner of Income-tax (Appeals).

5. The Tribunal also addressed the issue of the cost of acquisition of bonus shares allotted before and after April 1, 1981. It held that for bonus shares acquired before April 1, 1981, the assessee could adopt the FMV as on that date as the cost of acquisition, while for bonus shares acquired after that date, the cost of acquisition would be considered nil.

6. Lastly, the Tribunal dismissed the Revenue's appeal regarding the liability of interest under section 234B of the Act, as the dispute relating to the computation of capital gains had been decided in favor of the assessee.

In conclusion, the Tribunal allowed the assessee's appeal and dismissed the Revenue's appeal, pronouncing the judgment on April 11, 2007.