2014 (7) TMI 367 - AT - Income Tax

Banakhat cancellation charges Cost of acquisition of land Held that - There is no obligation on the part of the assessee to pay any compensation as per the banakhat agreement, and it is not the assessee who has opted out from the banakhat agreement and it is the buyer on whose behest the banakhat cancellation agreement was executed - AO has rightly held that these payments of banakhat cancellation charges cannot be construed as payment made to retain the lands and in any case, it cannot be attributable to the cost of transfer of land, which has been added in the computation of capital gain in total acquisition cost. Decided against Assessee. Interest payment paid to partners and depositors Cost of acquisition of land Held that - As per the provisions of section 48, the assessee is allowed deduction on account of cost of acquisition of capital assets, cost of improvement and cost of transfer - The interest paid for the funds used for acquiring capital assets cannot be said to be cost of acquisition or cost of improvement or cost of transfer - It may be considered as carrying cost, but no deduction is allowable in this regard as per section 48 for the purpose of computation of capital gain. In fact, carrying cost is taken care of by way of allowing indexation benefit while computing long term capital gain there was no reason to interfere with the orders of authorities Decided against assessee.

Summary

Issues Involved:
1. Addition of Banakhat cancellation charges and payment to landowners in computing long-term capital gain.
2. Disallowance of interest payment to partners and depositors as the cost of acquisition of land.

Issue-wise Detailed Analysis:

1. Addition of Banakhat Cancellation Charges and Payment to Landowners in Computing Long-Term Capital Gain:

The assessee included Banakhat cancellation charges of Rs. 6,77,029 and Rs. 3,00,000 paid to landowners in the cost of transfer of land, which was disallowed by the AO. The AO noted that there was no liability on the part of the assessee to pay any cancellation charges as per the Banakhat agreement. The AO also disallowed the Rs. 3,00,000 payment to landowners due to lack of evidence supporting legal disputes necessitating the payment. The CIT(A) upheld the AO's decision.

The Tribunal examined the Banakhat agreement and found no clause obligating the assessee to pay compensation upon cancellation of the agreement. The compensation was paid at the behest of the buyer, not the seller. The Tribunal distinguished the cited judgments of CIT Vs. Shakuntala Kantilal and CIT Vs. Abrar Alvi, noting that in those cases, the payments were made under different circumstances involving legal obligations or disputes, which were not present in the current case. Consequently, the Tribunal upheld the disallowance of Banakhat cancellation charges and the Rs. 3,00,000 payment to landowners, affirming the CIT(A)'s order.

2. Disallowance of Interest Payment to Partners and Depositors as Cost of Acquisition of Land:

In ITA No.78/Ahd/2010, the assessee claimed interest payments of Rs. 43,22,153 to partners and depositors as part of the land acquisition cost, which was disallowed by the AO. The AO argued that post-1988 amendments to sections 48 and 55, the concept of "Indexed Cost" changed the computation of capital gains, making prior judgments inapplicable. The CIT(A) upheld the AO's decision.

The Tribunal agreed with the AO and CIT(A), stating that interest payments for funds used to acquire capital assets do not qualify as cost of acquisition, improvement, or transfer under section 48. The Tribunal noted that carrying costs are accounted for through indexation benefits in long-term capital gain computations. The Tribunal found no reason to interfere with the CIT(A)'s order, rejecting the ground.

In ITA No.2842/Ahd/2010, the assessee raised similar grounds regarding disallowance of Rs. 30,08,333 interest payment and Rs. 75,00,000 Banakhat cancellation charges. Both grounds were decided against the assessee, consistent with the Tribunal's earlier findings.

Conclusion:

The Tribunal dismissed all three appeals, upholding the disallowances made by the AO and affirmed by the CIT(A). The Tribunal confirmed that Banakhat cancellation charges and payments to landowners were not allowable in the cost of transfer, and interest payments to partners and depositors could not be added to the cost of acquisition of land.