2013 (12) TMI 1101 - AT - Income Tax

Surrender of tenancy/occupancy rights Capital gain or income from other sources - Held that - The fact whether the assessee was a tenant or not was not determined through any document or order of the court The assessee has not furnished copies of the orders which contain the direction to the occupants of the premises to make payment to the landlord and there is no clarity on the nature of such payment - The assessee has acquired some rights in property either legal or otherwise The CIT was directed to examine whether the assessee was tenant and has acquired any tenancy rights or not the Commissioner of Income-tax (Appeals) shall also adjudicate how the right to remain in possession of the premises or right to litigate are different from the right to tenancy as both the rights allow the assessee to reside in the premises With amendment to section 55(2) the tenancy rights attained legal cognizance -As such there is need for first deciding if the assessee s rights in the property constitutes a tenancy rights within the meaning of section 55(2) The issue was restored for fresh adjudication.

Summary

Issues:
Assessability of receipt of Rs. 85 lakhs as capital gains or income from other sources; applicability of sections 234B, 234C, and 234D of the Income-tax Act, 1961.

Analysis:
1. The primary issue in this case revolved around whether the receipt of Rs. 85 lakhs by the assessee for surrendering tenancy/occupancy rights should be taxed as "capital gains." The assessee contended that the rights transferred constituted tenancy rights, while the Revenue argued that it was not tenancy rights but a "right of litigation" taxable under "Income from other sources."

2. The Tribunal found that the Revenue had misconstrued the transaction, assuming it was between the assessee and a company, whereas it was actually with an individual. The Tribunal highlighted that the assessee had a right to remain in possession of the property, which could be considered as a capital asset under the amended provisions of section 55(2) of the Act.

3. Referring to the Cadell Weaving Mill Co. case, the Tribunal noted that the legal landscape had changed post-amendment to section 55(2) recognizing tenancy rights as capital assets. The Tribunal directed the Commissioner of Income-tax (Appeals) to determine if the assessee's rights constituted "tenancy rights" under the Act and to consider the nature of the transfer to Shri Rajan Kirthanlal Shah for Rs. 84 lakhs.

4. The Tribunal emphasized the need for a detailed examination of the nature of the assessee's rights in the property, distinguishing between "right to remain in possession" and "right to tenancy." It highlighted the lack of clarity on whether the payment was made by the landlord, as per tenancy norms, and directed a reevaluation by the Commissioner of Income-tax (Appeals) with a focus on factual determinations.

5. Ultimately, the Tribunal set aside the previous decisions, allowing the appeal for statistical purposes. It instructed the Commissioner of Income-tax (Appeals) to reexamine the case, considering the specific details of the agreement and the nature of the rights transferred, ensuring a comprehensive analysis before making a final determination.