1982 (5) TMI 58 - AT - Income Tax

Occupancy in Cooperative Society = Right in Land: Income Tax Appeal Success!

Ninth Income-Tax Officer. Versus Smt. SJ. Framji.

The Special Bench determined that the right to occupy a flat in a cooperative housing society constitutes a right in land and building under Section ... Deductions, Long-term Capital Gains Issues Involved:1. Applicability of Section 80T(b)(ii) of the Income-tax Act, 1961.2. Nature of the right transferred by the assessee.3. Interpretation of 'rights in buildings or lands' under Section 80T(b)(i).Issue-wise Detailed Analysis:1. Applicability of Section 80T(b)(ii) of the Income-tax Act, 1961:The primary issue was whether the assessee was entitled to a deduction under Section 80T(b)(ii) of the Income-tax Act, 1961, at 40% on the basis that what was transferred by the assessee was neither land and buildings nor any rights therein. The Income Tax Officer (ITO) rejected this contention, but the Commissioner (Appeals) accepted it. The revenue appealed against the Commissioner (Appeals) decision, asserting that the relief should be worked out according to Section 80T(b)(i).2. Nature of the Right Transferred by the Assessee:The assessee, a member of a co-operative housing society, transferred two flats and a garage. The agreements specified the consideration for the transfer, including the value of shares, fittings, fixtures, and compensation for relinquishing rights in the flats and garage. The Special Bench needed to determine whether the transfer included rights in land and buildings as defined under Section 80T(b)(i). The Supreme Court's decision in Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi was pivotal, where it was held that the right to occupy a flat in a co-operative society is a distinct and transferable right, separate from the right to hold shares.3. Interpretation of 'Rights in Buildings or Lands' under Section 80T(b)(i):The Special Bench considered whether the right to occupy a flat constitutes a right in land and building. The revenue argued that the right to occupy a flat is a right in land and building, supported by the Supreme Court's observations that such a right is alienable and heritable. The interveners contended that the transfer was merely of shares, with the right to occupy being incidental. However, the Special Bench found that the right to occupy is a substantive right that flows from the transfer of shares and falls under Section 80T(b)(i). The decision of the Gujarat High Court in Premanand Industrial Co-operative Service Society Ltd. further supported this view, stating that a member's interest in a co-operative housing society includes the right to occupy the property.Conclusion:The Special Bench concluded that the right to occupy a flat is a right in land and building, falling under Section 80T(b)(i). The order of the Commissioner (Appeals) was reversed, and the ITO's decision was restored. The appeal filed by the revenue was allowed.