2018 (9) TMI 2071 - AT - Income Tax

Addition towards capital gains u/s 45(3) - profit accrued to assessee company on transfer/contribution of capital by way of contribution in the form of its share of land asset to the partnership firm - HELD THAT - We find that this issue is squarely covered in favour of the assessee by the co-ordinate bench decision of this tribunal in the case of another partner of the assessee i/e M/s Blue Heaven Griha Nirman Pvt Ltd 2018 (8) TMI 2075 - ITAT KOLKATA holding that the assessee did not make any short term capital gains taxable under section 45(3) of the Act or otherwise and that on revaluation of its fixed assets by the firm (of its land and building) there was no income that accrued or arose in the hands of the partners and the addition on account of alleged revaluation profit is not sustainable and was rightly deleted by the CIT(A). - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the Commissioner of Income Tax (Appeals) [CIT(A)] was justified in deleting the addition of ?96,37,85,635/- towards capital gains under Section 45(3) of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Background of the Case:
The appeal by the Revenue challenges the order of the CIT(A) which deleted the addition of ?96,37,85,635/- towards capital gains under Section 45(3) of the Income Tax Act, 1961. The assessee, a company, along with three other companies, was a partner in a partnership firm, M/s Salarpuria Soft Zone. The assessee had filed its return of income for the Assessment Year (AY) 2006-07, declaring a total loss of ?41,824/-. The return was processed under Section 143(1) of the Act. The Assessing Officer (AO) reopened the assessment on the grounds that the capital gains of ?96,37,85,635/- had not been included in the return, leading to a reassessment under Sections 147/143(3) of the Act.

2. Facts Leading to the Addition:
The assessee and the other partners had purchased industrially converted land and transferred it to the partnership firm as their capital contribution. The land was initially accounted for as work in progress (current asset) in the balance sheets of the partners and the firm. On March 30, 2008, the firm converted the land into fixed assets and revalued it, recording a significant increase in value.

3. AO's Contentions:
The AO contended that the transfer of land to the partnership firm should be treated as a transfer of a capital asset, thereby attracting capital gains tax under Section 45(3) of the Act. The AO argued that the revaluation of the land was a device to avoid taxes on capital gains and that the land should be considered a capital asset, not a current asset. The AO also cited precedents and legal principles to support the contention that the transaction was a colorable device to avoid tax.

4. Assessee's Defense:
The assessee argued that Section 45(3) applies only to the transfer of a capital asset, whereas the land was accounted for as a current asset (stock in trade). The assessee contended that the revaluation of the land by the partnership firm was for financial purposes, not for tax avoidance, and that the revaluation gains were merely book entries, not actual profits. The assessee also highlighted that the revaluation occurred in AY 2008-09, not AY 2006-07, and therefore, any tax implications should be considered in AY 2008-09.

5. CIT(A)’s Findings:
The CIT(A) agreed with the assessee's contentions and deleted the addition of ?96,37,85,635/-. The CIT(A) found that the land was held as stock in trade, not as a capital asset, and therefore, Section 45(3) did not apply. The CIT(A) also noted that the revaluation gains were not taxable in AY 2006-07 as the revaluation occurred in AY 2008-09.

6. Tribunal’s Analysis:
The Tribunal upheld the CIT(A)’s decision, referencing a similar case involving another partner, M/s Blue Heaven Griha Nirman Pvt Ltd, where it was held that Section 45(3) does not apply to the transfer of stock in trade. The Tribunal emphasized that the land was transferred as stock in trade, not as a capital asset, and the revaluation gains were merely notional and not taxable. The Tribunal also cited the Supreme Court's decision in Sanjeev Woolen Mills vs CIT, which held that notional profits from revaluation are not taxable.

7. Conclusion:
The Tribunal concluded that the assessee did not derive any tax advantage from the revaluation of the land and that the revaluation gains, if taxable, should be considered in AY 2008-09, not AY 2006-07. The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)’s order deleting the addition of ?96,37,85,635/- towards capital gains.

Order:
The appeal of the Revenue is dismissed.