2007 (4) TMI 172 - HC - Income Tax

Capital Gains - As per the applicable pre-amended Section 55 of the Act amount received by assessee as compensation for surrendering the tenancy right not assessable as capital gains on the ground of the COA of tenancy right is not relisable held by HC

Issues Involved:
1. Taxability of the compensation received for surrendering tenancy rights.
2. Applicability of capital gains tax prior to the amendment by the Finance Act, 1995.
3. Determination of the cost of acquisition for tenancy rights.
4. Applicability of Section 10(3) of the Income Tax Act for casual income.

Detailed Analysis:

1. Taxability of the compensation received for surrendering tenancy rights:

The primary issue revolves around whether the compensation of Rs.99,00,000 received by the assessee for surrendering tenancy rights is taxable under the head "Capital Gains". The Commissioner of Income-tax (CIT) initially treated this amount as casual income under Section 10(3) of the Income Tax Act, based on the decision of the Special Bench, Mumbai in the case of Cadell Weaving Mill Co. P. Ltd., which held that the amount received on surrender of tenancy rights should be considered as casual income and thus taxable.

2. Applicability of capital gains tax prior to the amendment by the Finance Act, 1995:

The Tribunal held that the amount received was taxable as it resulted in the transfer of a capital asset. However, the assessee contended that since the assessment year in question was 1994-95, which is prior to the amendment of Section 55(2) of the Act by the Finance Act, 1995, no capital gains tax was applicable. The amendment specified that the cost of acquisition for tenancy rights, goodwill, etc., should be taken as nil if not acquired by purchase, effective from 1st April 1995.

3. Determination of the cost of acquisition for tenancy rights:

The Supreme Court in the case of Commissioner of Income-tax, Bangalore Vs. B.C.Srinivasa Setty (128 ITR 294) had held that if the cost of acquisition of a capital asset could not be determined, the transfer of such an asset would not attract capital gains tax. The High Court reiterated this view, stating that the tenancy rights in question had no determinable cost of acquisition, and thus, the compensation received could not be taxed as capital gains.

4. Applicability of Section 10(3) of the Income Tax Act for casual income:

The CIT had set aside the assessment order under Section 263 of the Act, arguing that the amount received on surrender of tenancy rights was assessable as casual income under Section 10(3). However, the Bombay High Court in a similar case held that amounts received on transfer of a capital asset should be taxed under the specific provisions of Sections 45 to 55 and not as casual income under Section 10(3). The Supreme Court upheld this view, stating that tenancy rights are capital assets and their transfer results in a capital receipt, not casual income.

Conclusion:

The High Court concluded that the Tribunal erred in holding the compensation received by the assessee as subject to capital gains tax. Given that the assessment year was 1994-95, prior to the amendment of Section 55(2), and following the Supreme Court's judgment in B.C.Srinivasa Setty, the amount received by the assessee was not taxable under capital gains. The question of law was answered in favor of the assessee, and the tax case was allowed with no costs.

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