Commissioner Of Income Tax I Chennai v. M/S.thiruvengadam Investments Pvt Ltd., Sharika Mansion

Dated: 01.12.2009 Coram The Honourable Mr.Justice K.RAVIRAJA PANDIANandThe Honourable Mr.Justice M.M.SUNDRESHTAX CASE(APPEAL)NO.1329 OF 2009 Commissioner of Income Tax IChennai...AppellantVsM/s.Thiruvengadam Investments PvtLtd., Sharika Mansion, No.2, Lake AreaI Street, Chennai-34....Respondent TAX CASE (APPEAL) filed under Section 260A of the Income Tax Act against the order of the IncomeTax Appellate Tribunal, Chennai 'C' Bench dated 22.5.2009 made in ITA No.1307/Mds/2008 for theassessment year 2004-2005. For appellant : Mr.Arun Kurian Joseph forMr.K.SubramaniamJUDGMENT(JUDGMENT WAS DELIVERED BY K.RAVIRAJA PANDIAN,J)By formulating the follwing question of law :"Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal wasright in holding that the provisions of Section 50C of the Income Tax Act (hereinafter referred to asthe Act) were not applicable in the matter of computation of the assessee's income from the sale ofthe property at Greams Road and the sale consideration should be taken only at Rs.5 Crores asshown in the sale deed?, the Revenue has come up by way of an appeal under Section 260A of the Act before this Courtagainst the order of the Tribunal dated 22.5.2009 made in ITA No.1307/Mds/2008 relating to theassessment year 2004-2005. 2. The minimum facts for the disposal of the appeal as culled out from the statement of factscontained in the memorandum of grounds are as follows : The assessee company filed its return of income for the assessment year 2004-2005 on 1.11.2004admitting an income of Rs.78,23,894/- and claimed set off of the entire income against the earlieryears' losses and claimed capital loss of Rs.83,64,350/-. While completing the assessment, theAssessing Officer noticed that the assessee claimed a capital loss on the sale of the property atGreams Road. The consideration shown was for Rs.5 Crores. However, while registering the saledeed, the Sub.Registrar took the guideline value of Rs.6,94,45,920/- and levied the stamp duty andregistration charges on the said value. The assessee was given power of attorney by the vender andthe assessee is engaged in the business of investment in shares and property development. As theassessee was engaged in the business of property development, the activities of the assessee weretreated as business. Therefore, while computing the income, the question of indexation cost was notconsidered and the cost of the land was taken as Rs.3,19,49,496/-. In the balance sheet, the value of the property has been shown as Rs.2,55,87,815/- under current assets. The Assessing Officer heldthat though the apparent sale consideration was for Rs.5 Crores, the sale price should be taken atthe amount as fixed by the Registering Authority on the basis of the guideline value ofRs.6,94,45,920/-. The Assessing Officer computed the profit on the sale of the property at GreamsRoad accordingly. 3. Aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) by contending that the Assessing Officer is not correct ininvoking Section 50C of the Act since that section would apply only to computation of income undercapital gains and not for computation of business income. It was also contended that the payment tothe land owners in a sum of Rs.63,61,681/- and the brokerage paid in a sum of Rs.12.5 Lakhs shouldalso be reduced. The Commissioner of Income Tax (Appeals) directed the Assessing Officer to verifythe claim. However, he agreed with the assessee's contention that the provisions of Section 50C ofthe Act would apply only for computation of capital gains and not for computation of businessincome and therefore directed the Assessing Officer to adopt the sale consideration of Rs.5 Crores. Commissioner of Income Tax (Appeals) by contending that the Assessing Officer is not correct ininvoking Section 50C of the Act since that section would apply only to computation of income undercapital gains and not for computation of business income. It was also contended that the payment tothe land owners in a sum of Rs.63,61,681/- and the brokerage paid in a sum of Rs.12.5 Lakhs shouldalso be reduced. The Commissioner of Income Tax (Appeals) directed the Assessing Officer to verifythe claim. However, he agreed with the assessee's contention that the provisions of Section 50C ofthe Act would apply only for computation of capital gains and not for computation of businessincome and therefore directed the Assessing Officer to adopt the sale consideration of Rs.5 Crores. 4. Aggrieved by the order of the Commissioner of Income Tax (Appeals), the Revenue filed an appealbefore the Income Tax Appellate Tribunal. By reason of the order impugned in this appeal, theTribunal hel that the provisions of Section 50C were not applicable when the income was treated asbusiness income and on that ground dismissed the appeal. As stated earlier, the correctness of thesaid order is now canvassed in this appeal by the Revenue. 5. We have heard learned counsel for the Revenue and perused the materials on record. 6. It is not in dispute that the activity of the assessee is property promoter. It can be gathered fromthe facts available on record that the assessee has obtained power of attorney from the owner of theproperty and paid a sum of Rs.3,19,49,496/- to the owner of the property and also incurredexpenditure in a sum of Rs.2,55,87,815/- in connection with the said property for the assessmentyear 2004-2005 and the balance of Rs.63,61,681/- during the assessment year 2004-2005. Theamounts so paid were shown under the head 'loans and advances' in the balance sheet and notunder the head 'fixed assets'. Later on, the property was sold to M/s.MRF Limited for a sum of Rs.5Crores by a deed of conveyance, in which, the assessee represented the owner in the capacity of thepower of attorney. The Assessing Officer, in order to determine the value of the property, hasinvoked the provisions of Section 50C of the Act and thereby brought the entire amount toRs.6,94,45,920/-. The Appellate Authority has deleted that portion of the order of the AssessingOfficer having the sale consideration to Rs.6,94,45,920/- as against Rs.5 Crores � the apparent saleconsideration shown in the sale deed. The Tribunal also, taking note of the facts stated above, hascome to the conclusion that invocation of Section 50C of the Act is not warranted as the propertywas never held by the assessee as capital asset and as per the accounts also, the amount given tothe owner of the property has been shown as loans and advances thereby the property has beentreated as business asset and not as capital asset. The invocation of Section 50C of the Act as can beseen from the provisions of the Act can be made in order to find out the true value of the capitalasset. In the very facts and circumstances of the case, the property in the hands of the assessee wastreated as business asset and not as capital asset, there is no question of invoking the provisions ofSection 50C of the Act, which is, as already stated, pertaining to determining the full value of thecapital asset. The Tribunal has taken in aid the observation of the Mumbai Bench in the case ofInterlok Hotels (P) Ltd Vs. ITO (reported in 2009 122 TTJ (Mumbai) 145), which, in our consideredview, is in consonance with the statutory provisions and is well in accordance with law. AND M.M.SUNDRESH,J 7. In the above stated facts and circumstances of the case, we are of the view that the Tribunal hascome to a correct conclusion and the question of law formulated for our determination has to beanswered in the affirmative against the assessee. While answering thus, the appeal is dismissed. (K.R.P.J.) (M.M.S.J.)01.12.2009 Index : YesInternet : Yes To AND M.M.SUNDRESH,J 7. In the above stated facts and circumstances of the case, we are of the view that the Tribunal hascome to a correct conclusion and the question of law formulated for our determination has to beanswered in the affirmative against the assessee. While answering thus, the appeal is dismissed. (K.R.P.J.) (M.M.S.J.)01.12.2009 Index : YesInternet : Yes To 1.The Commissioner of Income Tax-I, Chennai2. The Income Tax Appellate Tribunal, Bench 'C' Chennai. RS TC(A)NO.1329 OF 2009