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TMI Blog2023 (4) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... ee to its 100% subsidiary. Transfer of Trunk Infrastructure , concededly, led to generation of surplus. The record shows that the respondent/assessee had included this surplus in its return of income albeit, with a note which explained as to how the surplus arose. Tribunal, in reversing the view of the CIT(A), has, in our view, rightly, concluded that an assessee employees both capital assets and trading assets in his business; the fact that a capital asset (i.e., Trunk Infrastructure), which was, as noted above, a capital work-in-progress, on transfer, generated surplus, could not be treated as income, in view of the provisions of Section 47(iv) of the Act. There is no dispute raised before us that the prerequisites provided in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed on behalf of the appellant/revenue seeking condonation of delay of 200 days in filing the appeal] 2. This is an application filed on behalf of the appellant/revenue seeking condonation of delay in filing the appeal. 3. According to the appellant/revenue, there is a delay of 200 days. 4. For the reasons given in the application, the delay is condoned. 5. The application is, accordingly, disposed of. ITA 194/2023 6. This appeal concerns Assessment Year (AY) 2012-13. 7. The appellant/revenue seeks to assail via the instant appeal the order of the Income Tax Appellate Tribunal [in short Tribunal ] dated 16.07.2021. 8. The issue which arose for consideration before the Tribunal was whether the claim made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 does not apply is set forth in clause (iv) of Section 47 of the Act. 10. A bare perusal of the aforesaid provision would show that transfer of a capital asset by a company to its subsidiary will not fall within the provisions of Section 45 of the Act i.e., be exigible to capital gains, if the following prerequisites stand fulfilled: (i) First, the parent company or its nominees hold the whole of the share capital of the subsidiary company. (ii) Second, the subsidiary company is an Indian company. 11. In the instant case, the Trunk Infrastructure , which includes roads etcetera, were, admittedly, transferred by the respondent/assessee to its 100% subsidiary Ansal API Infrastructure Ltd. [hereafter referred to as, AAIL ]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd trading assets in his business; the fact that a capital asset (i.e., Trunk Infrastructure), which was, as noted above, a capital work-in-progress, on transfer, generated surplus, could not be treated as income, in view of the provisions of Section 47(iv) of the Act. 14. There is no dispute raised before us that the prerequisites provided in Section 47(iv) of the Act stand fulfilled i.e., the transfer of the Trunk Infrastructure/capital work-in-progress was made by the respondent/assessee to its 100% subsidiary and the subsidiary was an Indian company. 15. The other argument made by Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/revenue, is that the Tribunal could not have gone beyond the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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