2016 (4) TMI 465 - AT - Income Tax

Rectification of mistake - capital gain computation - whether there was no sale of property by way of the Developoment agreement? - Held that - A bare reading of the order which is sought to be rectified it clear that the complete control over the properties was given to the developer. Consideration of the transfer of the rights is fixed and the terms of payment is also fixed. No material is placed before this Tribunal, that the parties did not act upon the development agreement. The only grounds taken by the Revenue for seeking recalling the order is that the assessee had converted the property in question as stock-in-trade and such stock-in- trade was during the block period. We are unable to agree with the contention of the Sr.DR that there was no sale of property by way of the Developoment agreement. The Sr.DR has placed section 45(2) of the Act to buttress the contention that the assessee ought to have offered for taxation of gain arising out of transfer of the property during block period. In our considered view, the transfer of property was complete by way of the development agreement. The Revenue has not disputed the fact that the assessee had given possession of the property to the developer even if it is assumed that it is in nature of stock-in-trade, there is a change of hands as the assessee had given possession of the property to the developer in consideration as described under the development agreement. It is also not disputed that a sum of ₹ 1,00,000/- was paid to the assessee by the developer and rest of the sale consideration was to be paid into installments. Keeping these facts, we are of the considered view that modifying or recalling the Tribunal s order dated 04/04/2014 would tantamount to reviewing of the order. Therefore, the miscellaneous application filed by the Revenue is devoid of any merit.

Summary

Issues Involved:
1. Recall of Tribunal's order based on alleged mistake in judgment regarding conversion of capital asset into stock-in-trade.

Analysis:
1. The Revenue filed a miscellaneous application seeking to recall the Tribunal's order dated 04/04/2014, contending that a mistake had crept into the order, necessitating rectification. The Revenue argued that the judgment relied upon by the Tribunal in a previous case was distinguishable from the present case as there was no issue of conversion of capital asset into stock-in-trade. The Revenue emphasized that the conversion of stock-in-trade is governed by section 45(2) of the Act and was detailed in the assessment order.

2. The assessee's counsel opposed the Revenue's application, asserting that there was no mistake apparent from the records, and all relevant facts had been duly considered in the order under review. The counsel argued that accepting the Revenue's plea would amount to impermissible review of the Tribunal's order. The Tribunal noted that the judgment of the Hon'ble High Court of Bombay was followed, which dealt with the year of taxability of gains from the transfer of a capital asset.

3. After considering the submissions and reviewing the material on record, the Tribunal found that the transfer of property was complete through the development agreement, as evidenced by the parties acting upon the agreement and the possession being given to the developer. The Tribunal highlighted that even if the property was treated as stock-in-trade, there was a change of hands with possession being transferred to the developer as per the terms of the agreement. The Tribunal emphasized that modifying or recalling the order would amount to reviewing it, and hence, the Revenue's application lacked merit.

4. The Tribunal further pointed out errors in the Tribunal's order, such as discrepancies in dates mentioned and factual inaccuracies. The Tribunal clarified the relevant date of transfer under section 2(47)(v) and emphasized the importance of considering the complete terms of the agreement to determine the year of chargeability accurately. The Tribunal concluded by dismissing the miscellaneous application filed by the Revenue.

In conclusion, the Tribunal's detailed analysis focused on the interpretation of the development agreement, the application of relevant legal provisions, and the significance of the High Court's judgment in determining the taxability of gains arising from the transfer of a capital asset. The Tribunal emphasized the importance of considering all facts and terms of the agreement in assessing the transfer of property and rejected the Revenue's plea for recalling the order, citing lack of merit in the application.