2015 (7) TMI 699 - AT - Income Tax

Payment of ₹ 1 crore to the earlier agreement holders - Whether the payment of ₹ 1 crore paid by the assessee is neither towards expenditure nor development of the property, therefore, it cannot be deductible while computing capital gain u/s 48 of the Act? - Held that - This Tribunal is of the considered opinion that in the absence of any material with regard to preparation of plan and other development as claimed by the assessee, we may not be able to say that the assessee has incurred any expenditure for development. However, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the Assessing Officer by giving one more opportunity to the assessee to produce necessary material with regard to preparation of plan, obtaining of planning permission and improvement, if any, made in the property. It is also to be verified whether any of the tenants was evicted from the premises by the previous agreement holders. In the absence of any material, this Tribunal is of the considered opinion that the issue of payment of ₹ 1 crore needs to be reconsidered by the Assessing Officer. Accordingly, the orders of the lower authorities are set aside and the issue with regard to claim of payment of ₹ 1 crore to the agreement holders is remitted back to the file of the Assessing Officer. - Decided in favour of assessee for statistical purposes. Disallowance of ₹ 50 lakhs withheld by the purchaser - the assessee claimed that his brother made a claim over the property, therefore, the purchaser withheld a sum of ₹ 50 lakhs on the basis of indemnity bond - Held that - A reading of clauses 6, 7 and 8 of sale deed dated 26.4.2001 shows that the assessee has received the entire sale consideration of ₹ 3,50,00,000/- on or before the date of execution of the sale deed. Therefore, it is not known how the purchaser was able to withhold the money on the basis of an indemnity bond. The CIT(A) has simply allowed the claim of the assessee on the ground that the payment of ₹ 50 lakhs and investment thereof was properly evidenced. Whether the payment of ₹ 50 lakhs is over and above the sale consideration disclosed in the sale deed or it was a part of the sale consideration disclosed in the sale deed has to be verified. Accordingly, the orders of the lower authorities are set aside and the issue with regard to claim of exemption u/s 54F is remitted back to the file of the Assessing Officer for re-examination. The Assessing Officer shall decide the issue afresh in accordance with law after giving opportunity of hearing to the assessee.- Decided in favour of revenue for statistical purposes. Claim of ₹ 50,000/- towards brokerage - Held that - As rightly submitted by the ld. DR, the details of the broker and evidence of payment are not available on record. The assessee claims that the Assessing Officer has not called for any details. Though the Revenue claims that the brokerage was to the extent of ₹ 50,000/- in the grounds of appeal, the assessee claims that in fact the brokerage of ₹ 2,50,000/- was paid. Therefore, there was a confusion in respect of the actual amount of brokerage said to be paid by the assessee. In view of the above, this Tribunal is of the considered opinion that the Assessing Officer shall reconsider the matter. It is also open to the assessee to file necessary details with regard to the identity of the broker and the genuineness of the payment. Accordingly, the orders of the lower authorities are set aside and the issue with regard to payment of brokerage is remitted back to the file of the Assessing Officer for reconsideration afresh in accordance with law after giving a reasonable opportunity of hearing to the assessee.- Decided in favour of revenue for statistical purposes. Deposit of ₹ 1,14,00,000/- in capital gains account - Held that - The issue of deposit of ₹ 1,14,00,000/- is also remitted back to the file of the Assessing Officer to reconsider the issue afresh and pass appropriate order in accordance with law after giving a reasonable opportunity of hearing to the assessee in the light of the judgment of Apex Court in Prakash Nath Khanna vs CIT 2004 (2) TMI 3 - SUPREME Court - Decided in favour of assessee for statistical purposes

Issues Involved:
1. Deductibility of Rs. 1 crore paid to previous agreement holders for computing capital gains.
2. Claim of deduction of Rs. 50 lakhs withheld by the purchaser.
3. Claim of Rs. 50,000/- towards brokerage.
4. Deposit of Rs. 1,14,00,000/- in capital gains account.

Detailed Analysis:

1. Deductibility of Rs. 1 crore paid to previous agreement holders:
The primary issue is whether the Rs. 1 crore paid by the assessee to the previous agreement holders can be considered as an expenditure incurred in connection with the transfer of property or as a cost of improvement under Section 48 of the Income Tax Act. The Revenue argued that this payment was neither towards expenditure nor development of the property and thus cannot be deductible while computing capital gains. The Revenue also contended that there was no evidence of development work or eviction of tenants by the previous agreement holders. The Tribunal noted the absence of material evidence regarding the preparation of plans, obtaining planning permissions, or eviction of tenants. Consequently, the Tribunal remitted the issue back to the Assessing Officer for reconsideration, allowing the assessee to produce necessary evidence.

2. Claim of deduction of Rs. 50 lakhs withheld by the purchaser:
The assessee claimed that Rs. 50 lakhs was withheld by the purchaser due to a title dispute and was later deposited in NABARD bonds for claiming exemption under Section 54F of the Act. The Revenue argued that the sale deed did not mention any withholding and that the entire sale consideration was received on the date of the sale deed. The Tribunal observed that the sale deed indicated the full consideration was received and questioned the basis for the withholding. The Tribunal remitted the issue back to the Assessing Officer to verify whether the Rs. 50 lakhs was part of the sale consideration disclosed in the sale deed or over and above it and to decide the matter afresh.

3. Claim of Rs. 50,000/- towards brokerage:
The Revenue contested the brokerage claim, stating that the identity of the broker and the genuineness of the payment were not proven. The assessee claimed that Rs. 2,50,000/- was paid as brokerage and that the Assessing Officer did not request details. The Tribunal noted the confusion regarding the actual amount of brokerage and remitted the issue back to the Assessing Officer for reconsideration. The assessee was allowed to provide necessary details regarding the broker's identity and the payment's genuineness.

4. Deposit of Rs. 1,14,00,000/- in capital gains account:
The cross objection by the assessee regarding the deposit of Rs. 1,14,00,000/- in the capital gains account was considered. The Tribunal noted that this issue was already addressed while deciding the Revenue's appeal and remitted the matter back to the Assessing Officer for reconsideration. The Assessing Officer was directed to pass an appropriate order in accordance with the law, considering the judgment of the Apex Court in Prakash Nath Khanna vs CIT [2004] 266 ITR 1.

Conclusion:
The Tribunal allowed both the appeal of the Revenue and the cross objection of the assessee for statistical purposes, remitting all issues back to the Assessing Officer for reconsideration and fresh adjudication in accordance with the law. The order was pronounced in the open court on 19.6.2015.

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