2020 (1) TMI 252 - AT - Income Tax

Taxing gain on relinquishment of rights under an agreement to purchase undivided share of land and construction agreement - Income from business OR capital gain - HELD THAT - Test laid down by the Hon ble Supreme Court in the decision of G. Venkataswami Naidu 1958 (11) TMI 5 - SUPREME COURT is to see as to, what is the nature of the commodity purchased and resold and in what quantity was it purchased and resold? If the commodity purchased is generally the subject-matter of trade, and if it is purchased in very large quantities, it would tend to eliminate the possibility of investment for personal use, possession or enjoyment. Did the purchaser by any act subsequent to the purchase improve the quality of the commodity purchased and thereby made it more readily resaleable ? Applying the aforesaid test, we are of the view that relinquishment of rights under an Agreement to acquire property is not a commonly subject matter of trade. We are of the view that no other facts or circumstances are brought on record to show that the Assessee indulged in an Adventure in the nature of trade when he relinquished his rights under an agreement. Therefore the right acquired under the Agreement by the Assessee has to be regarded as Capital Asset . Giving up of a right to claim specific performance by conveyance in respect to an immovable property, amounts to relinquishment of the capital asset. Therefore, there was a transfer of capital asset within the meaning of the Act. The payment of consideration under the agreement of sale, for transfer of a capital asset, is the cost of acquisition of the capital asset. Therefore, in lieu of giving up the said right, any amount received, constitutes capital gain and it is exigible to tax. However, as is clear from s. 48, before the income chargeable under the head capital gains is computed, the deductions set out in s. 48 has to be given to the assessee. It is only the amount thus arrived at, after such deductions under s. 48, would be the income chargeable under the heading capital gains. We are of the view that income from relinquishing rights under an agreement should be assessed under the head income from capital gains. We hold accordingly. We however find that the AO/CIT(A) have not examined the claim of the Assessee under the head Capital Gain in accordance with the provisions of Sec.48 of the Act. We therefore remand the question of computation of Capital Gain to the AO after due opportunity of being heard afforded to the Assessee. The Appeal of the Assessee is accordingly treated as allowed for statistical purposes.

Issues Involved:
1. Whether the gain on relinquishment of rights under an agreement to purchase undivided share of land and construction agreement should be taxed as "Income from Business" or "Capital Gain".

Issue-wise Detailed Analysis:

1. Tax Treatment of Gain on Relinquishment of Rights:
The core issue in the appeal was whether the revenue authorities were justified in taxing the gain from relinquishment of rights under an agreement to purchase an undivided share of land and a construction agreement as "Income from Business" instead of "Capital Gain".

Facts and Background:
The Assessee entered into agreements with a Developer to purchase an undivided share of land and for the construction of a built-up area. The Assessee paid substantial sums towards these agreements. Subsequently, due to delays and unsatisfactory conditions, the Assessee entered into a Memorandum of Understanding (MOU) with the Developer to cancel these agreements and received a settlement amount higher than the total payments made.

Assessee's Argument:
The Assessee claimed that the gain should be treated as Long Term Capital Gain (LTCG) since the rights under the agreements constituted a "capital asset" as per Section 2(14) of the Income Tax Act, 1961. The Assessee relied on the Karnataka High Court's decision in H. Anil Kumar, which held that the right to obtain a conveyance of immovable property is a capital asset, and relinquishment of such a right results in capital gains.

Revenue's Argument:
The Assessing Officer (AO) contended that since the Assessee did not acquire the undivided share of land or the built-up area, there was no capital asset transferred. Therefore, the gain should be taxed as "Income from Business" under Section 28 of the Act. The AO emphasized that the transaction was more in the nature of a business venture rather than an investment.

CIT(A)'s Decision:
The CIT(A) upheld the AO's decision, reasoning that the transaction appeared to be a business transaction aimed at earning profits rather than an investment for rental income. The CIT(A) pointed out that the MOU and the deed of cancellation indicated a business loan arrangement with interest, suggesting a business motive.

Tribunal's Analysis and Conclusion:
The Tribunal carefully considered the submissions and relevant legal precedents. It emphasized that the definition of "business" under Section 2(13) of the Act includes any trade, commerce, or manufacture, or any adventure in the nature of trade. However, the Tribunal noted that the Assessee was not in the business of dealing in real estate and had no history of similar transactions.

The Tribunal referred to the Supreme Court's decision in G. Venkataswami Naidu, which outlined tests to determine whether a single or isolated transaction constitutes an adventure in the nature of trade. Applying these tests, the Tribunal concluded that the Assessee's transaction did not exhibit characteristics of a business venture. The Assessee's intention at the time of acquisition was crucial, and there was no evidence to suggest a business motive.

The Tribunal also relied on the Karnataka High Court's decision in H. Anil Kumar, affirming that the right to obtain a conveyance of immovable property is a capital asset. The relinquishment of such a right results in capital gains, not business income.

Final Decision:
The Tribunal held that the income from relinquishing rights under the agreement should be assessed under the head "Capital Gains." The Tribunal remanded the case to the AO for computation of capital gains in accordance with Section 48 of the Act, ensuring the Assessee is given due opportunity to present their case.

Conclusion:
The appeal was allowed for statistical purposes, and the Tribunal directed the AO to reassess the gain as capital gains, not business income, and compute it accordingly.

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