2016 (5) TMI 582 - AT - Income Tax

Taxability of capital gain in the hands of the partnership firm - assessee contended that the partners have already paid taxes in their individual hands and taxation on the firm for the same capital gains would amount to double taxation - Held that - We notice that the issue is squarely covered against the assessee by the decision of the jurisdictional High Court in the case of CIT vs. A N Naik Associates, (2003 (7) TMI 46 - BOMBAY High Court ) discussed by the CIT(A) in its order. The consideration received on transfer of the property by the partnership is taxable in the hands of the partnership firm in view of the expression otherwise employed in S. 45(4) of the Act. Accordingly, we are in agreement with the view of the CIT(A) that the impugned capital gains are taxable in the hands of the partnership firm. We also do not find any merit seeking relief on the ground that the partners have already paid taxes in the individual capacity. The Hon ble Supreme Court in the case of ITO vs. Ch. Atchaiah (1995 (12) TMI 1 - SUPREME Court ) has held that the Revenue has no option but to tax the income in the right hands irrespective of the fact that wrong person has already been taxed for the particular income. Hence, we decline to interfere with the order of the CIT(A) appealed against. - Decided against assessee

Summary

Issues Involved:
1. Nature of income arising on the sale of under-construction property.
2. Taxability of the income in the correct hands.

Detailed Analysis:

1. Nature of Income Arising on Sale of Under-Construction Property:

The first issue revolves around whether the income from the sale of an under-construction project should be classified as 'business income' or 'capital gains.' The Assessing Officer (AO) initially concluded that the income should be treated as 'business income.' However, the assessee claimed it as 'capital gains.' The Income Tax Appellate Tribunal (ITAT) in its combined order dated 28/11/2008, decided in favor of the assessee, holding that the under-construction work is a 'capital asset' and thus chargeable to tax under the head 'capital gains' upon its transfer. The Commissioner of Income Tax (Appeals) [CIT(A)] also agreed with this interpretation, affirming that the income arising from the sale of the unfinished construction project should be assessed as 'capital gains' and not as 'business income.'

2. Taxability of the Income in the Correct Hands:

The second issue concerns the correct entity in whose hands the income should be taxed. The AO contended that the income should be taxed in the hands of the partnership firm, whereas the assessee argued that the partners had already offered the income for taxation in their individual capacities. The ITAT remanded this issue back to the AO for reconsideration in light of Sections 2(47) and 45(4) of the Income-tax Act, 1961. The AO did not provide relief to the assessee, citing a pending appeal under Section 260A before the High Court.

The CIT(A) held that the income should be taxed in the hands of the partnership firm, not the individual partners, referencing several judicial precedents. It was noted that the firm's assets could not be transferred to the partners without a registered deed, and mere book entries were insufficient to substantiate such a transfer. The CIT(A) cited cases like CIT Vs Kedarnath Poddar & Co and J M Mehta & Bros to support the view that rights in immovable property are not created or extinguished merely by book entries.

Moreover, the CIT(A) referenced Section 45(4), which imposes liability for capital gains on the distribution of assets to partners, and the Bombay High Court's decision in CIT Vs A N Naik Associates, which clarified that capital gains tax is applicable on the transfer of assets by a firm to its partners. Thus, the CIT(A) concluded that the capital gains arising from the sale of the work-in-progress (WIP) should be assessed in the hands of the partnership firm.

Appeal to ITAT:

The assessee appealed to the ITAT, arguing that taxing the same income in the hands of the firm would result in double taxation since the partners had already paid taxes individually. The ITAT, however, dismissed the appeal, citing the jurisdictional High Court's decision in CIT vs. A N Naik Associates, which mandates that the consideration received on the transfer of property by the partnership is taxable in the hands of the partnership firm. The ITAT also referenced the Supreme Court's decision in ITO vs. Ch. Atchaiah, which held that the Revenue must tax the income in the right hands, regardless of whether the wrong person had already been taxed.

Conclusion:

The ITAT upheld the CIT(A)'s decision, confirming that the capital gains arising from the sale of the WIP should be taxed in the hands of the partnership firm and not the individual partners. The appeal of the assessee was dismissed, and the order was pronounced on December 30, 2015.