2012 (8) TMI 668 - AT - Income Tax

Capital gain disallowance of proportionate IPO expenses - assessee was a director-shareholder, had gone for an Initial Public Offering (IPO) of its shares during the relevant previous year and assessee sold his shares as part of this IPO - assessee s share was transferred to assessee only net of his proportionate share of expenses Held that - Assessee claimed his share of IPO expense as deduction under section 48(1) as part of expenditure incurred wholly and exclusively in connection with transfer of shares - Just because the expenditure was incurred based on a legal obligation would not render such expenditure as something not incurred wholly and exclusively in connection with the sale of shares - Assessee also produced Prospectus of IPO which clearly shows that assessee was obliged to meet pro rata share of IPO expenses - disallowance is deleted and assessee s appeal allowed.

Summary

Issues:
Appeals filed by different assessees for impugned assessment year - Delay in filing appeals - Claim of exemption under Section 54F of Income-tax Act, 1961 - Apportionment of expenses incurred in Initial Public Offering (IPO) of shares - Disallowance of claim of expenditure by Assessing Officer (A.O.) - Interpretation of Section 48 of the Act - Deduction of expenditure incurred in connection with transfer of shares.

Analysis:
The assessees, who were Directors in a company, admitted capital gains in their returns for the impugned assessment year and claimed exemption under Section 54F of the Act. They argued that expenses incurred for the IPO of shares were to be considered as part of expenditure wholly and exclusively in connection with the transfer of shares. The A.O. disallowed the claim of expenditure, stating there was no specific agreement between the company and the assessees for sharing expenses. The CIT (Appeals) upheld the disallowance, emphasizing that the company, not the assessees, had the liability to bear such expenses. However, the Tribunal found that the Prospectus of the company mentioned that expenses were to be borne proportionately by the company and shareholders. The Tribunal noted that the assessees claimed only pro rata expenses for deduction under Section 48 of the Act, and the expenses were incurred in connection with the sale of shares through the IPO. The Tribunal observed that the assessees had an opportunity to sell their shares conveniently through the IPO and allowed the deduction claimed by the assessees for expenses incurred.

The Tribunal analyzed the provisions of Section 48 of the Act, which allow deduction of expenditure incurred wholly and exclusively in connection with the transfer of a capital asset. The Tribunal emphasized that the terminology used is "in connection with" such transfer, and the expenses claimed by the assessees were clearly for effecting the sale of their shares. The Tribunal found that the assessees had provided evidence, such as the Escrow Account and the IPO Prospectus, to support their claim that they were obliged to bear a pro rata share of the IPO expenses. The Tribunal concluded that the deduction claimed by the assessees for expenses incurred in connection with the sale of shares was justified and deleted the disallowance made by the lower authorities.

In summary, the Tribunal allowed the appeals filed by the assessees, overturning the disallowance of the claim of expenditure by the A.O. and CIT (Appeals). The Tribunal held that the expenses incurred for the IPO were in connection with the sale of shares by the assessees, who were entitled to claim deduction under Section 48 of the Act. The Tribunal found that the assessees had fulfilled the conditions for claiming the deduction and had provided sufficient evidence to support their claim, leading to the deletion of the disallowance.