2007 (1) TMI 578 - AT - Income Tax

Tribunal allows appeal for bifurcated sale consideration, supports assessee's capital gains claim

THE STATESMAN LTD. Versus ASSISTANT COMMISSIONER OF INCOME-TAX

THE STATESMAN LTD. Versus ASSISTANT COMMISSIONER OF INCOME-TAX - [2007] 295 ITR (A. T.) 388 (ITAT [Kolk]) Issues Involved:1. Inclusion and assessment of Rs. 14,49,14,951 as short-term capital gains.2. Bifurcation of aggregate sale consideration.3. Rights extinguishment due to development agreement.4. Hypothetical bifurcation of sale consideration.5. Assessment of gains as long-term or short-term capital gains.6. Levy of interest under sections 234B and 234D.7. Validity of the appellate and assessment orders.Detailed Analysis:1. Inclusion and Assessment of Rs. 14,49,14,951 as Short-Term Capital Gains:The assessee contested the inclusion of Rs. 14,49,14,951 as short-term capital gains from the sale of certain floors in a building. The Assessing Officer (AO) and Commissioner of Income-tax (Appeals) (CIT(A)) treated the entire amount as short-term capital gains, arguing that the assessee's rights in the land and building were extinguished upon handing over to the developer, and the new assets received were short-term in nature.2. Bifurcation of Aggregate Sale Consideration:The assessee argued for bifurcation of the sale consideration between land and building, claiming long-term capital gains for the land portion and short-term capital gains for the building portion. The AO and CIT(A) rejected this, stating that the bifurcation was hypothetical and not supported by separate sale agreements for land and building.3. Rights Extinguishment Due to Development Agreement:The AO and CIT(A) held that the assessee's rights in the land were extinguished when the property was handed over to the developer. The assessee argued that only 56.8% of the land was transferred to the developer, retaining ownership of 43.2% of the land, which should be considered for long-term capital gains.4. Hypothetical Bifurcation of Sale Consideration:The AO and CIT(A) claimed that the bifurcation of the sale consideration into land and building was hypothetical and not based on concrete evidence. The assessee relied on valuation reports to support the bifurcation, which the tax authorities did not accept.5. Assessment of Gains as Long-Term or Short-Term Capital Gains:The assessee computed long-term capital gains for the land portion and short-term capital gains for the building portion. The AO and CIT(A) treated the entire gain as short-term, arguing that the new assets received from the developer were short-term in nature.6. Levy of Interest Under Sections 234B and 234D:The assessee contested the levy of interest under sections 234B and 234D, which was confirmed by the CIT(A).7. Validity of the Appellate and Assessment Orders:The assessee argued that the appellate and assessment orders were against the facts and evidence on record, and thus invalid.Judgment:1. Inclusion and Assessment of Rs. 14,49,14,951 as Short-Term Capital Gains:The Tribunal found that the assessee retained ownership of 43.2% of the land and only transferred 56.8% to the developer. The assessee's computation of capital gains by bifurcating the sale consideration was accepted.2. Bifurcation of Aggregate Sale Consideration:The Tribunal accepted the assessee's bifurcation of the sale consideration based on valuation reports, which were not contradicted by the Revenue. The bifurcation was deemed reasonable and scientific.3. Rights Extinguishment Due to Development Agreement:The Tribunal held that the assessee's rights in 43.2% of the land were not extinguished, supporting the assessee's claim for long-term capital gains on the land portion.4. Hypothetical Bifurcation of Sale Consideration:The Tribunal rejected the Revenue's claim that the bifurcation was hypothetical, finding the valuation reports and the basis for bifurcation reasonable and supported by evidence.5. Assessment of Gains as Long-Term or Short-Term Capital Gains:The Tribunal accepted the assessee's computation of long-term capital gains for the land portion and short-term capital gains for the building portion, based on the valuation reports.6. Levy of Interest Under Sections 234B and 234D:The Tribunal directed that the interest under sections 234B and 234D be computed accordingly, based on the revised assessment of capital gains.7. Validity of the Appellate and Assessment Orders:The Tribunal found the appellate and assessment orders to be incorrect and set them aside, accepting the assessee's computation of capital gains.Conclusion:The Tribunal allowed the appeal filed by the assessee, accepting the bifurcation of the sale consideration and the computation of long-term and short-term capital gains as presented by the assessee. The orders of the AO and CIT(A) were set aside.