9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (10) TMI 230 - AT - Income TaxCapital gain - whether no transfer of a capital asset so as to trigger the provisions of Capital Gains tax? - contention of the assessee is that transfer of the flat jointly owned by him with his wife in Vandana Co-operative Housing Society, Andheri, Mumbai has not taken place in the instant year - Held that - The plea sought to be raised by the assessee goes to the root of the jurisdiction of the Assessing Officer to assess the Capital Gains in the instant assessment year. Notably, the import of the expression transfer for the purposes of Sec. 45(1) of the Act is required to be adjudicated at the threshold itself, before proceeding to tax the income from Capital Gains. Since this plea was hitherto not before the lower authorities and, it being pertinent to arrive at the correct tax-liability of the assessee, we deem it fit and proper to admit such plea and restore the matter back to the file of the Assessing Officer who shall consider the plea of the assessee afresh, as per law. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard and only thereafter pass an order on the entire aspect relating to income under the head Capital Gains in accordance with law.
Issues Involved:
1. Charging Long Term Capital Gains under Section 45 of the Income Tax Act, 1961. 2. Denial of exemption under Section 54 of the Income Tax Act, 1961. 3. Charging of interest under Sections 234A, 234B, and 234C of the Income Tax Act, 1961. 4. Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961. 5. Condonation of delay in filing the appeal. Issue-wise Detailed Analysis: 1. Charging Long Term Capital Gains under Section 45 of the Income Tax Act, 1961: The assessee challenged the charging of Long Term Capital Gains (LTCG) of ?66,42,023 under Section 45 of the Income Tax Act, 1961. The assessee argued that the transfer of the capital asset was completed on receipt of the entire consideration amount, not on the date of registration of the sale deed. The tribunal noted that the sale agreement dated 28.03.2011 indicated the transfer would be completed only upon receipt of full consideration and handing over of peaceful and vacant possession, which occurred on 31.05.2011. Therefore, the tribunal held that the transfer did not occur in the assessment year 2011-12 but in the subsequent year, making the charging of LTCG in the year under consideration incorrect. The tribunal cited various judgments, including CIT vs. Geetadevi Pasari and Ajay Kumar Shah Jagati vs. Commissioner of Income-tax, to support this view. 2. Denial of exemption under Section 54 of the Income Tax Act, 1961: The assessee claimed exemption under Section 54 for the investment made in purchasing a new residential house. The CIT(A) denied this exemption. However, since the tribunal set aside the matter on the preliminary aspect of the transfer date, it did not address the merits of the Section 54 exemption claim. The tribunal directed the Assessing Officer to reconsider this aspect afresh in light of the correct assessment year. 3. Charging of interest under Sections 234A, 234B, and 234C of the Income Tax Act, 1961: The assessee contested the charging of interest under Sections 234A, 234B, and 234C. The tribunal did not specifically address these issues in detail, as the primary issue of the correct assessment year for the LTCG was set aside for reconsideration. Consequently, the interest charges would also need to be re-evaluated based on the revised assessment. 4. Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961: The assessee argued against the initiation of penalty proceedings under Section 271(1)(c). The tribunal did not delve into this issue separately, as the matter was set aside for reassessment. The penalty proceedings would be contingent on the outcome of the reassessment. 5. Condonation of delay in filing the appeal: The assessee's appeal was delayed by 33 days, attributed to the assessee being a senior citizen and the passing away of his father-in-law. The tribunal accepted the explanation and condoned the delay, allowing the appeal to be heard on merits. Conclusion: The tribunal set aside the assessment of LTCG for the year under consideration, directing the Assessing Officer to re-examine the date of transfer and reassess the tax liability accordingly. The tribunal also instructed the Assessing Officer to reconsider the exemption under Section 54 and other related issues afresh, providing the assessee with a reasonable opportunity to present his case. The appeal was allowed, and the order was pronounced in the open court on 25th September 2017.
|
