9911796707
TMI Blog2017 (4) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... pos are that assessee's who are salaried employees had filed return of income for the impugned assessment year declaring income of F1,57,620/- and F1,45,400/- respectively. During the course of assessment proceedings, it was noted by the ld. Assessing Officer that assessee's who were jointly owning a residential property had sold it for a consideration of F70,00,000/-. Assessee's had claimed a loss on sale of property in its return of income. For arriving at such loss assessee's had set off the amount paid by them to M/s. Axis Bank on a loan raised a company called M/s. Shreyas Communication and Services P. Ltd, in which the assessee's were Directors. Subject property which was sold was offered as collateral for the loans raised by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance was handed over to the company to settle its bank dues. Reliance was placed on the judgment of Hon'ble Gujarat High Court in the case of CIT vs. Mahanbhai Pamabhai 91 ITR 393 and that of Delhi Bench of the Tribunal in the case of Rajasthan Petro Synthetics Ltd vs. ACIT (2014) 49 Taxmann.com 599. However, ld. Commissioner of Income Tax (Appeals) was not impressed. According to him, both the decisions relied on by the assessee were completely different on facts. According to him, by virtue of the judgment of Hon'ble Apex Court of Attili N. Rao (supra) the additions were rightly made by the ld. Assessing Officer. While holding so, the Ld. Commissioner of Income Tax (Appeals) made a detailed analysis of the judgment of Apex Court in Attili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Services P. Ltd. Assessee's were directors of the said company. Since the company had defaulted the loan a notice was issued by M/s. Axis Bank to the said company and its directors including the assessee's u/sec. 13(2) of the SARFAESI Act. Since the company did not make the payment, possession of the property was taken by M/s. Axis Bank on 25.06.2010. Thereafter it seems there was a one time settlement entered between the company and Axis Bank, whereby the bank agreed to settle the loan for a sum of F70,00,000/- against the due of F93,35,000/-. Assessee's on 11.08.2010 entered into a sale agreement for selling the residential property offered as collateral, and received a consideration of F70,00,000/- from the buyer who paid the amount d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the decision of Glad Investment (P) Ltd (supra) relied on by the ld. AR, the concerned assessee had pledged their shares as collateral security and were divested of the ownership of such shares. The Co-ordinate Bench took a view that transfer of the shares offered as collateral by the concerned assessee was complete when the shares were pledged. It is for this reason the Tribunal held the creditors to have an overriding title on the income arising from the sale of shares. However, in the instant case before me, there was no transfer of ownership of the property to M/s. Axis Bank when the property was offered as collateral. Coming to the decision of Delhi Bench in Rajasthan Petro Synthetics Ltd (supra) the question there was whether tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the immovable property that belonged to him. Therefore, it was on the full price realised (less admitted deductions) that the capital gain and the tax thereon had to be computed. Therefore, it was observed by the Apex Court that the High Court was not correct in holding that amount realised by the sale of the assessee's interest in the property was only Rs. 4,33,960/-, i.e., Rs. 5,62,980/ minus Rs. 1,29,020/-. 17.On perusal of the above case law, it is noticed that in the referred case the impugned capital asset was mortgaged by the assessee with State Government to provide security for the amounts of 'kist' which were due by him to the State. In the present case of the appellant, the impugned property was mortgaged as c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
