2013 (11) TMI 478 - AT - Income Tax

Conversion of sole proprietorship firm into company - succession - Applicability of section 47(xiv) of the Income Tax Act - certain transactions not to be regarded as transfer Receipt of higher value of shares because of re-valuation of the assets - Held that - all the assets and liabilities of the same proprietorship concern relating to business immediately before the succession has become the assets and liabilities of the company - Shareholding of the same proprietor was not less than 50% of the total voting power in the company - The Assessee has duly complied with the condition as stipulated under clause (c) to Section 47(xiv). This proviso only requires that same proprietor does not receive any consideration or benefit directly or indirectly in any form or manner other than by way of allotment of shares in the company. The words other than by way of allotment of shares in the company qualifies the words does not receive any consideration or benefit as well as directly or indirectly . This clearly denotes that proviso (c) permits receiving of consideration or benefit directly or indirectly by way of allotment of shares in the company. It is not a case where the Assessee has received any other consideration or benefit other than the allotment of shares in the company - Clause (c) of Section 47(xiv) does not prohibit receipt of higher number of shares because the re-valuation. Receipt of higher value of shares because of re-valuation of the assets at the time of succession cannot be treated as consideration or benefit received other than by way of allotment of shares Reliance has been placed upon the decision in the case of Asstt. CIT v. Nayan L. Mepani 2011 (12) TMI 347 - ITAT, Mumbai Decided against the Revenue. Applicability of section 14A read with Rule 8D - Assessing Officer disallowed a sum of Rs. 3,05,423/- applying the provisions of Sec. 14A r/w Rule 8D - There is no precise finding given by the Assessing Officer relating to the expense incurred by the assessee in respect of the income not forming part of the total income. The CIT(A) reduced the disallowance to Rs. 1 lac but also noted that the assessee did not file the full details of the expenditure - Held that - Not filed any details of expenditure incurred by the assessee not relating to the dividend income - The onus lies on the assessee to prove that the assessee has not incurred any expenses relating to the income not forming part of the total income - Applicability of Sec. 14A has not been denied by the Learned AR The order of the Assessing officer is restored vide applying Rule 8D read with section 14A Decided in favor of assessee.

Summary

Issues Involved:
1. Deletion of addition made by the Assessing Officer (AO).
2. Applicability of Section 47(xiv) r/w Section 50B.
3. Allegation of sham transactions and tax avoidance.
4. Judicial decisions relevant to the case.
5. Disallowance under Section 14A r/w Rule 8D.

Issue-wise Detailed Analysis:

1. Deletion of Addition Made by the AO:
The CIT(A) deleted an addition of Rs. 961,38,34,680 made by the AO. The AO had added this amount to the assessee's income, treating it as business income, arguing that the capital gains arising from the transfer of assets were chargeable to tax under Section 45 and not exempt under Section 47(xiv). The CIT(A) found that the assessee complied with the conditions of Section 47(xiv) and deleted the addition.

2. Applicability of Section 47(xiv) r/w Section 50B:
The AO argued that the assessee violated proviso (c) of clause (xiv) of Section 47 by receiving shares far exceeding the book value of assets, thus denying exemption under Section 47(xiv) r/w Section 50B. The CIT(A) held that the revaluation of assets for transfer to the company is not explicitly prohibited by Section 47(xiv) and that the assessee did not receive any benefit other than by way of allotment of shares. The Tribunal upheld the CIT(A)'s view, stating that Section 47(xiv) permits receiving consideration by way of shares and does not prohibit the receipt of higher value shares due to revaluation.

3. Allegation of Sham Transactions and Tax Avoidance:
The AO contended that the transactions were sham and devised for tax avoidance, referencing the McDowell decision. The CIT(A) and the Tribunal rejected this argument, noting that the reorganization was encouraged by the law and the assessee complied with all conditions under Section 47(xiv). The Tribunal also referred to the Supreme Court's decision in Union of India v. Azadi Bachao Andolan, which held that legal steps cannot be termed as non-est based on hypothetical assessments of the assessee's motive.

4. Judicial Decisions Relevant to the Case:
The CIT(A) and the Tribunal considered several judicial decisions, including:
- Hela Holdings (P.) Ltd. v. CIT
- Twinster Holdings Ltd. v. Anand Kedia, Dy. CIT
- Mannalal Nirmal Kumar Surana v. CIT
- Inland Revenue Commissioner v. Burma Oil Company Ltd.
- CIT v. D.P. Sandu Bros. Chembur (P.) Ltd.
- Asstt. CIT v. Madan Mohan Chandak
- Prakash Electrical Co. v. ITO
- K.V. Mohammad Zakir v. Asstt. CIT
- Asstt. CIT v. Nayan L. Mepani

The Tribunal found that the decisions supported the assessee's position and that the conditions of Section 47(xiv) were met.

5. Disallowance Under Section 14A r/w Rule 8D:
The AO disallowed Rs. 3,05,423 under Section 14A r/w Rule 8D, which the CIT(A) reduced to Rs. 1 lakh. The Tribunal restored the AO's disallowance, noting that the assessee did not provide details of expenditure related to income not forming part of the total income. The Tribunal held that the onus was on the assessee to prove no expenses were incurred relating to exempt income and upheld the AO's application of Rule 8D.

Conclusion:
The Tribunal confirmed the CIT(A)'s deletion of the addition made by the AO under Section 47(xiv), finding no violation of the conditions. However, it restored the AO's disallowance under Section 14A r/w Rule 8D, as the assessee failed to provide necessary expenditure details. The appeal by the Revenue was partly allowed, and the Cross Objection by the assessee was dismissed.