2017 (7) TMI 370 - HC - Income Tax

Sale of plot - STCG OR LTCG - AO concluded that the Assessee had shown its assets as stock in trade in order to avoid Section 50C - Held that - There were only two properties shown as stock in trade by the Assessee. The mere fact that the sale of the property in the earlier AY and the resultant reduction of the stock in trade was not questioned by the AO will not relieve the Assessee from having to demonstrate that the sale of the plot in question in the AY under consideration was not by way of an investment resulting in short term capital gains. The Court is unable to find anything perverse in the factual and concurrent determination of the AO, the CIT(A) and the ITAT that the plot in question was the investment of the Assessee and not its stock in trade .

Issues:
1. Interpretation of Sections 45 and 46 of the Memorandum of Association for the Assessee's business activities.
2. Application of Section 50C of the Income Tax Act by the Assessing Officer.
3. Classification of the property as 'stock in trade' or 'investment' by the authorities.
4. Compliance with the requirements to establish a transaction as an 'adventure in the nature of trade.'
5. Adequacy of evidence provided by the Assessee to support the classification of the property.

Interpretation of Sections 45 and 46 of the Memorandum of Association:
The Assessee, incorporated in 1986, decided to deal in immovable property as per Clauses 45 and 46 of the Memorandum of Association (MOA). The Assessee purchased plots in Noida and Ghaziabad, showing them as 'inventories' and 'stock.' The dispute arose when the Ghaziabad plot was illegally occupied, leading to a distress sale below market value.

Application of Section 50C by the Assessing Officer:
The Assessing Officer invoked Section 50C, disregarding the Assessee's claim that the property was 'stock in trade' to avoid tax implications. The AO treated the property as an investment, adding a net short-term capital gain to the Assessee's income.

Classification of the property as 'stock in trade' or 'investment':
The Commissioner of Income Tax (Appeals) and the ITAT upheld the AO's decision, emphasizing the lack of supporting documents to substantiate the Assessee's claim. The ITAT noted the primary business objective of the Assessee, concluding that the property was sold as an investor, not a trader.

Compliance with the requirements for an 'adventure in the nature of trade':
The Court analyzed relevant precedents to determine if the property sale qualified as an 'adventure in the nature of trade.' It was established that the Assessee failed to demonstrate the transaction's trade nature, as continuity of similar transactions was absent.

Adequacy of evidence provided by the Assessee:
The Court agreed with the authorities' findings that the Assessee did not provide satisfactory evidence to support treating the property as 'stock in trade.' The Assessee's reliance on past decisions and failure to substantiate the distress sale due to adverse possession were deemed insufficient.

Conclusion:
The Court dismissed the appeal, finding no substantial legal question in the ITAT's order. The judgment highlighted the importance of providing concrete evidence to establish the nature of transactions for tax purposes, emphasizing the need to satisfy Income Tax Authorities regarding the genuineness of business activities and property sales.

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