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2017 (7) TMI 262 - AT - Income TaxAddition under the head capital gains on sale of land - nature of land sold - CIT-A delted the addition - invoking provision of 50C - transfer u/s 2(47) - Held that - In the instant case, what was transferred by the assessee, even the shares in M/s.General Wood Industries (P) Ltd., and not the land and building or both. The assets transferred being the shares, which was never part of assessment of Stamp Duty Authority of the State Government. In such circumstances that cannot be no question of invoking the provisions of the section 50C of the Act as there is no direct transfer as enumerated in Sec.50C of the Act r.w.s 2(47) of the Act. Being so, Ld.CIT(A) had taken a correct view placing reliance case of Bhoruka Engineering Inds. Ltd. vs. DOT (2013 (7) TMI 543 - KARNATAKA HIGH COURT). Accordingly, we are inclined to uphold the order of Ld.CIT(A). Hence, the ground raised by the Revenue stands dismissed.
Issues Involved:
1. Deletion of addition made under the head capital gains on sale of land. 2. Applicability of Section 2(47)(vi) and Section 269UA(d)(ii) of the Income Tax Act. 3. Applicability of Section 50C of the Income Tax Act. 4. Interpretation of transfer of shares versus transfer of immovable property. Detailed Analysis: 1. Deletion of Addition Made Under the Head Capital Gains on Sale of Land: The Revenue's grievance revolves around the deletion of the addition made under the head capital gains on the sale of land. The assessee, a manufacturing company, sold shares of its wholly-owned subsidiary, M/s. General Wood Industries (P) Ltd. (GWI), which owned land. The Assessing Officer (AO) treated this transaction as a transfer of immovable property, thereby invoking capital gains tax. However, the Commissioner of Income-tax (Appeals) [CIT(A)] and the Tribunal concluded that the transaction involved only the transfer of shares, not the land itself, thus not attracting capital gains tax on immovable property. 2. Applicability of Section 2(47)(vi) and Section 269UA(d)(ii) of the Income Tax Act: The AO applied Section 2(47)(vi) and Section 269UA(d)(ii), arguing that the transfer of shares indirectly transferred the underlying immovable property. Section 2(47)(vi) includes transactions enabling the enjoyment of immovable property within the definition of "transfer." However, the CIT(A) and the Tribunal found that the transfer of shares did not confer any direct right over the property to the shareholders, as the property remained with GWI. The CIT(A) relied on CBDT Circular No. 495, which clarified that Section 2(47)(vi) aims to prevent tax avoidance through indirect transfers of property rights. Since the property was not transferred and remained an asset of GWI, Section 2(47)(vi) was deemed inapplicable. 3. Applicability of Section 50C of the Income Tax Act: Section 50C deems the value adopted by the stamp valuation authority as the full value of consideration for the transfer of land or building. The AO applied Section 50C, asserting that the sale of shares was a guise to transfer the property. However, the CIT(A) and the Tribunal concluded that Section 50C applies strictly to direct transfers of land or buildings, not to share transfers. The Tribunal emphasized that the assets transferred were shares, not land or buildings, which were not subject to stamp duty valuation. Thus, Section 50C was not applicable. 4. Interpretation of Transfer of Shares Versus Transfer of Immovable Property: The CIT(A) and the Tribunal differentiated between the transfer of shares and the transfer of immovable property. They cited the Karnataka High Court's decision in Bhoruka Engineering Inds. Ltd. vs. DOT, where it was held that the sale of shares does not equate to the transfer of immovable property. The Tribunal also referred to the case of Asif Abdul Kader Faziani vs. ACIT, where it was held that Section 50C does not apply to share transfers. In the present case, the transfer involved only shares of GWI, with the property remaining with the company. Therefore, the AO's conclusion that the transaction was a transfer of immovable property was contrary to law and facts. Conclusion: The Tribunal upheld the CIT(A)'s order, concluding that the transfer of shares did not constitute a transfer of immovable property, and thus, the provisions of Sections 2(47)(vi), 269UA(d)(ii), and 50C were not applicable. The appeal of the Revenue was dismissed.
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