2018 (11) TMI 872 - HC - Income Tax

Applicability of section 50C - Capital gain - Sale of right in land/contingent right - proof of transfer of capital asset - Possession and ownership of the land - Held that - Tribunal came to the conclusion that Section 50C of the Act of 1961 would apply if there is a transfer of land or building or both. It would not apply in absence of transfer of capital asset. In Para 6.11, the Tribunal found that assessee has transferred only right in the land for valuable consideration, thereby, did not transfer capital asset. The finding aforesaid has been recorded without proper scrutiny of facts. How the land and building or both were disclosed by the assessee in the balancesheet has not been taken note of. It is also as to how it is not transfer of capital asset. If it is reflected as capital asset, transfer thereupon for consideration would attract Section 50C of the Act of 1961 but the aforesaid aspect has not been considered by the ITAT Tribunal, Jaipur Bench, Jaipur. It is nothing but an order without elaborate finding on the issue, that too, after taking into consideration the requisite facts for its adjudication. The appellant has referred judgment of Bombay High Court IN M/S. GREENFIELD HOTELS & ESTATES PVT. LTD. 2016 (12) TMI 353 - BOMBAY HIGH COURT where it was held that Section 50C of the Act of 1961 would not be applicable on transfer of lease hold rights of the land. Bare perusal of Section 50C of the Act of 1961 does not show that transfer of capital asset for consideration should be other than of lease hold property or khatedari land. The court cannot rewrite the provision. If analogy taken by the Bombay High Court in the case (supra) is applied in general then Section 50C of the Act of 1961 would not be applicable in majority of the cases as not it is allowed as lease hold property. Section 50C of the Act of 1961 is applicable on transfer of capital assets for consideration. The Bombay High Court has not referred as how the land was in the balancesheet. It is as a capital asset or not thus we are unable to apply the judgment of Bombay High Court in the case of M/s. Greenfield Hotels & Estates Pvt. Ltd. (supra). No question of law is involved herein.

Summary

Issues Involved:

1. Applicability of Section 50C of the Income Tax Act, 1961.
2. Nature of the transfer of land and whether it constitutes a transfer of a capital asset.
3. Consideration of possession and ownership of the land.
4. Interpretation of legal provisions in the context of pending litigation and contingent rights.
5. Relevance of judicial precedents and their application to the case.

Issue-wise Detailed Analysis:

1. Applicability of Section 50C of the Income Tax Act, 1961:
The primary issue is whether Section 50C of the Income Tax Act, 1961, applies to the transaction in question. The appellant argued that Section 50C was not applicable as the transaction involved the sale of rights in land, not the transfer of a capital asset. The Tribunal and CIT (Appeals) upheld the addition made by the Assessing Officer, concluding that Section 50C was applicable because the sale deed was executed for the sale of land, and the consideration received was less than the value assessed by the stamp valuation authority. The court noted that the sale deed was registered, and the appellant received consideration, thus constituting a transfer of a capital asset.

2. Nature of the Transfer of Land and Whether It Constitutes a Transfer of a Capital Asset:
The appellant contended that the transfer was of rights in the land, not the land itself, and hence Section 50C should not apply. The Tribunal and CIT (Appeals) disagreed, stating that the sale deed indicated a transfer of land, which is a capital asset. The court emphasized that the material on record did not show possession of RIICO and that the sale deed was executed for consideration, thus falling under the purview of Section 50C.

3. Consideration of Possession and Ownership of the Land:
The appellant argued that possession and ownership of the land vested with RIICO/Government and not with the assessee. The court found that the documents on record did not substantiate the claim that RIICO had possession. The sale deed was registered, and consideration was received by the appellant, indicating a transfer of a capital asset.

4. Interpretation of Legal Provisions in the Context of Pending Litigation and Contingent Rights:
The appellant referred to Sections 52 and 53A of the Transfer of Property Act, arguing that any transfer pending litigation would be subject to the outcome of such litigation and that no transfer of property could occur without handing over possession. The court did not find these arguments sufficient to negate the applicability of Section 50C, as the sale deed was executed, and consideration was received.

5. Relevance of Judicial Precedents and Their Application to the Case:
The appellant cited various judicial precedents, including decisions from the Bombay High Court and ITAT, to support their contention that Section 50C should not apply. The court analyzed these precedents and found that they were not directly applicable to the case at hand. The court noted that the precedents did not adequately address the specific facts and legal provisions relevant to this case.

Conclusion:
The court concluded that no substantial question of law was involved and dismissed the appeal. The court upheld the findings of the Tribunal and CIT (Appeals) that Section 50C of the Income Tax Act, 1961, was applicable to the transaction, as it constituted a transfer of a capital asset for consideration. The court found that the appellant's arguments regarding possession, ownership, and the nature of the transfer were not supported by the material on record. The appeal was dismissed, affirming the addition made by the Assessing Officer under Section 50C.