2014 (4) TMI 435 - AT - Income Tax

Addition of LTCG Surrender of tenancy rights Held that - All the transactions are contained in a single document, just by differently wording that the assessee got the reversionary right by paying small amount for improvement in the title to the ownership cannot support the contention of the assessee that he has acquired only lease hold interest as the reversionary right - the working by the AO as to the long term capital gain earned by the assessee on relinquishment of tenancy right is sustainable. The decision in CIT Vs. D.P. Sandu Bors. Chembur P. Ltd. 2005 (1) TMI 13 - SUPREME Court followed - the tenancy right is a capital asset, the surrender of the tenancy right is a transfer and a consideration received is a capital receipt within the meaning of section 45 thus, the contentions of the revenue is accepted that the assessee had acquired the new flat in lieu of the surrender of tenancy right in addition to the payment of the consideration and the difference in value that is Government value of the flat purchased by the assessee which is determined as the fair market value of the flat minus the consideration paid by the assessee is to be equated with the consideration received by the assessee for the relinquishment of the tenancy right in the erstwhile flat possessed by the assessee and the same is liable to be taxed as long term capital gain there is no infirmity in the order of the CIT(A) Decided against Assessee.

Summary

Issues:
1. Addition of long term capital gains arising from surrender of tenancy right.

Analysis:
The appeal was filed against the order confirming the addition of Rs.20,27,250 as long term capital gains due to the relinquishment of tenancy right. The Assessing Officer (AO) considered the stamp value of Rs.20,63,250 as sale consideration and deducted Rs.36,000 paid to the developer, treating the difference as capital gains. The assessee argued that receiving an alternate accommodation did not constitute surrender of tenancy right. The contention was based on the premise that no asset was transferred, and the premium paid was for an improvement in tenancy right. However, the AO and Commissioner of Income Tax (Appeals) upheld the addition. The Tribunal analyzed the agreement between the assessee and developer, noting the consideration paid for reversionary right interest and the fair market value of the property.

The Tribunal observed that the consideration paid for acquiring the flat implied a transfer of ownership right in exchange for surrendering the tenancy right. The Tribunal rejected the argument that the premium paid was merely for an improvement in tenancy right, emphasizing that the interest in the property had effectively been transferred. The Tribunal distinguished previous cases cited by the assessee, highlighting the difference in circumstances and legal implications. Ultimately, the Tribunal upheld the addition of long term capital gains, concluding that the assessee acquired the new flat in exchange for surrendering the tenancy right, making the amount taxable under capital gains.

In summary, the Tribunal dismissed the appeal, affirming the addition of long term capital gains resulting from the surrender of tenancy right. The decision was based on the interpretation of the agreement, consideration paid, and the legal implications of transferring ownership rights in exchange for relinquishing the tenancy right. The Tribunal found no merit in the argument that the premium paid was for an improvement in tenancy right, emphasizing the transfer of ownership interest and the taxable nature of the transaction under capital gains.