2015 (7) TMI 776 - AT - Income Tax

Agreement to sell non materized - Advance received - litigation occurred due to non approval of map by the GDA and assessee has not returned back the amount - Held that - Whatever amount has been received by the assessee as advance in aforementioned negotiations for sale and if those amounts are not returned back; the cost of property would stand reduced by such amount. In other words, when this sale does not materialize and the amount stands forfeited/not returned; and assessee makes another sale in future; then for purposes of computing the gain, cost of acquisition would be reduced by respective amount of advances received and not returned. As assessee is one of the legal owners of the impugned land for sale; so the entire theory of the AO (that the trust has been designed for tax evasion and assessee has earned income from other sources), crumbles down. Section 51 is found to be applicable in such cases; the assessee is asked to reduce the amount of advance if forfeited after arbitration, from cost of property while working out gain on any subsequent sale. The AO is also directed to take note of this, for future assessment purposes. We find Ld. CIT(A) has rightly held that for the-time being, there is no basis for any addition of,Rs.75,OO,OOO/- and accordingly he deleted the addition in dispute. - Decided against revenue.

Issues:
1. Interpretation of sale agreement and division of advance proceeds.
2. Utilization of sale consideration for trust's objective.
3. Colorable transaction and evasion of taxation.
4. Piercing the corporate veil to expose transaction nature.
5. Consideration of forfeiture of advance money as revenue or capital receipt.
6. Assessment validity and addition of income from other sources.

Analysis:
1. The appeal was filed by the Revenue against the Order of the Ld. Commissioner of Income Tax (Appeals) regarding the assessment year 2006-07. The main contention was the division of advance proceeds as per the sale agreement among multiple parties. The Revenue argued that the entire transaction was colorable, and the advance should have been divided on a pro-rata basis. However, the Tribunal found that the assessee, along with his brother and family trust, were legal owners of the land under sale. The AO's conclusion that the assessee was not a legal owner was incorrect, and the amount forfeited, if any, would be taxed as income from other sources.

2. The second issue involved the utilization of sale consideration for promoting the trust's objective. The Revenue contended that the advance proceeds should have gone to the trust only. However, the Tribunal observed that the assessee, his brother, and the family trust were legal owners of the land, and the advance received was subject to arbitration. Section 51 of the Income Tax Act was found applicable, allowing for the reduction of the cost of property by the forfeited amount in case of future sale. The Tribunal upheld the Ld. CIT(A)'s decision to delete the addition in dispute.

3. The third issue revolved around the colorable transaction and evasion of taxation. The Revenue argued that the transaction was an attempt to evade taxation by coloring it as a capital receipt. However, the Tribunal found that the AO's conclusions were haphazard and confused. The ownership documents proved that the assessee was a legal owner, and the advance received was subject to arbitration. The Tribunal upheld the Ld. CIT(A)'s decision to delete the addition, citing the applicability of Section 51 and various court precedents.

4. The fourth issue concerned piercing the corporate veil to expose the true nature of the transaction. The Revenue contended that the assessee attempted to evade taxation until the final transfer of the capital asset. However, the Tribunal found that the AO's assumptions were unfounded, and the assessee, along with others, had no intention to withhold the advances. The Tribunal upheld the Ld. CIT(A)'s decision and directed the AO to consider Section 51 for future assessments.

5. The fifth issue involved the consideration of forfeiture of advance money as revenue or capital receipt. The Revenue cited case law to support their argument, but the Tribunal found that Section 51 applied in the present case, allowing for the reduction of the cost of property by the forfeited amount. The Tribunal dismissed the Revenue's appeal and upheld the Ld. CIT(A)'s decision to delete the addition in dispute.

6. The final issue related to the assessment validity and addition of income from other sources. The Tribunal found that the AO's conclusions were based on incorrect assumptions regarding the legal ownership of the land. The Tribunal upheld the Ld. CIT(A)'s decision to delete the addition, emphasizing the applicability of Section 51 and the lack of basis for the addition. The appeal filed by the Revenue was dismissed, and the Tribunal upheld the decision of the Ld. CIT(A).

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