2018 (7) TMI 1805 - AT - Income Tax

Addition made on account of alleged transfer of shares without consideration - Held that - It is difficult to imagine Articles of Association of a company providing for gifting of assets in the company to another company by way of shares in a public limited company unless it be one which has been set up for some purpose. A.O. had rightly raised question regarding the reality and genuineness of transaction in addition to its validity. In fact when such transactions are entered into involving assets substantially worth it behoves the assessee before Ld. AO to establish to the hilt the factum genuineness and validity of such transaction the right to enter into such transaction and bonafides of such transaction especially when revenue challenges genuineness of such transaction itself. It has been vehemently contested by authorities below as well as Ld. CIT DR that transaction has been effectuated for avoiding payment of tax and to get out of the ambit of section 56 (2) (viia) of the Act. And it is apparent from record that assessee has not demonstrated by way of documentary evidence or in any of the manner to prove the genuineness and validity of transaction. Ld.Counsel has been harping that the shares held by assessee in a Public Limited Company was transferred in lieu of a family realignment but failed to establish the relation of the alleged transferee company with that of assessee or any of the group/subsidiary companies. Further there is no agreement/document that has been executed between group companies forming part of family realignment. Assessee is thus directed to provide all necessary and relevant information/details to assist Ld. A.O. as called for to his satisfaction in determining correct nature of alleged transaction as per law. It is also directed that in the event assessee fails to provide any document as called for in order to establish the genuineness and validity of alleged transaction as has been submitted to be for a family realignment Ld.A.O. may compute income in the hands of assessee as per law. On the contrary if assessee is able to prove to the satisfaction of Ld.AO regarding genuineness and validity of the transaction no addition shall be called for. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Jurisdiction of the Assessing Officer (AO).
2. Legality of the transfer of shares as a gift.
3. Applicability of Section 47(iii) of the Income Tax Act.
4. Genuineness and validity of the transaction.
5. Computation of capital gains.

Detailed Analysis:

1. Jurisdiction of the Assessing Officer (AO):
The appellant contended that the assessment order passed by the DCIT, Circle-10(1), New Delhi, was illegal, bad in law, and without jurisdiction due to the absence of an order under Section 127. However, this issue was not argued before the Tribunal and was thus dismissed.

2. Legality of the Transfer of Shares as a Gift:
The appellant transferred 1,76,94,108 equity shares of Jindal Steel and Power Ltd. to Giebe Trading Pvt. Ltd. as a gift, without any consideration. The AO observed that this transfer was a sham transaction designed to avoid taxes. The AO noted that the transfer was not supported by any written gift deed or memorandum of understanding, questioning the genuineness of the transaction. The AO held that a company cannot give away its assets free of consideration to another company, and such a transaction would not fall under Section 47(iii) of the Act.

3. Applicability of Section 47(iii) of the Income Tax Act:
The appellant argued that the transfer of shares was exempt from capital gains tax under Section 47(iii) of the Act, which exempts transfers of capital assets under a gift. The AO and CIT(A) rejected this claim, stating that Section 47(iii) applies to individuals or Hindu Undivided Families (HUFs) and not to artificial persons like companies. The AO held that the transfer was a camouflage to evade taxes and assessed the capital gains based on the fair market value of the shares.

4. Genuineness and Validity of the Transaction:
The Tribunal noted that the appellant failed to provide sufficient evidence to prove the genuineness and validity of the transaction. The Tribunal observed that the transfer of a significant volume of shares without any proper documentation and merely based on board resolutions was questionable. The Tribunal emphasized that the appellant did not establish the commercial expediency or the need for such a transfer, nor did it provide any evidence of a family realignment or settlement.

5. Computation of Capital Gains:
The AO computed the capital gains by taking the market value of each share transferred at ?280.70. The appellant argued that no income accrued from the transfer as it was a gift, and hence, it could not be taxed under Section 45 read with Section 48 of the Act. The Tribunal referred to various judicial precedents but found them factually distinguishable from the present case. The Tribunal directed the AO to re-examine the issue, allowing the appellant to provide necessary documents to establish the genuineness and validity of the transaction. If the appellant fails to do so, the AO may compute the income as per law.

Conclusion:
The Tribunal set aside the issue back to the AO for re-examination, directing the appellant to provide all necessary documents to prove the genuineness and validity of the transaction. The appeal was allowed for statistical purposes, and the stay application became infructuous.