1995 (7) TMI 38 - HC - Income Tax

Tribunal Decision Upheld: Items in Agreement Deemed Immovable Properties

The High Court upheld the Tribunal's decision, ruling in favor of the assessee, concluding that the items in the agreement were immovable properties. The ... Balancing Charge, Capital Gains, Cinema Theatre, Immovable Property, Movable Property, Written Down Value Issues:1. Whether items in the agreement dated December 27, 1960, except 12 items, can be considered as immovable properties and liable to tax as profits under section 41(2) or capital gains under the Income-tax Act, 1961Rs.Detailed Analysis:The judgment delivered by the High Court of Andhra Pradesh pertained to a reference made under section 256(1) of the Income-tax Act, 1961, at the instance of the Revenue. The primary issue was whether certain items in an agreement dated December 27, 1960, apart from 12 specified items, could be classified as immovable properties and thus subject to taxation as profits under section 41(2) or capital gains under the Income-tax Act, 1961. The case involved an assessee, a registered firm owning a cinema hall, who agreed to sell the said property to another firm. The dispute arose regarding the classification of items mentioned in the agreement as either movable or immovable properties for tax purposes.The Income-tax Officer determined that the assessee had made profits under section 41(2) and capital gains based on the difference in value as per the agreement. The matter was appealed before the Appellate Assistant Commissioner, who initially upheld the decision. However, on further appeal to the Appellate Tribunal, it was concluded that the items in the agreement, though labeled as movables, were, in fact, immovable properties. The Tribunal remanded the case to the Appellate Assistant Commissioner for reconsideration. Subsequently, the Appellate Assistant Commissioner found no profit or gain under section 41(2) of the Income-tax Act, a decision later affirmed by the Tribunal. The core question referred to the High Court revolved around the classification of the items in the agreement as immovable properties for tax implications.The High Court analyzed the definitions of 'immovable property' as per the Transfer of Property Act and the General Clauses Act. It was noted that immovable property includes land, benefits arising from land, and items attached to the earth or permanently fastened to structures on the land. The court referred to precedents from the Madras High Court emphasizing that if an item is attached to the earth for the permanent beneficial enjoyment of the property, it is considered part of the immovable property. Applying these principles to the items listed in the agreements dated December 27, 1960, and December 28, 1960, the court concluded that these items were permanently attached to structures embedded in the earth, thus falling within the definition of immovable property.In conclusion, the High Court upheld the Tribunal's decision, finding no illegality in their order. The court concurred with the Tribunal's approach and ruled in favor of the assessee, determining that the items in question were indeed immovable properties. Consequently, the question was answered in the affirmative, favoring the assessee and rejecting the Revenue's claim. The case was disposed of with no costs awarded.