1973 (2) TMI 11 - HC - Income Tax

Court: Interest is part of actual cost for capital gains, but ground rent is not. Both sides partially succeed.

Commissioner of Income-Tax Versus Mithlesh Kumari.

The court held that the interest amount of Rs. 16,878 paid by the assessee constituted part of the actual cost of the plot for determining capital gains. ... ' Whether, on the facts and in the circumstances of the case, the interest amount of Rs. 16,878 and the ground rent of Rs. 3,793 constituted part of the actual cost of the plot to the assessee for the purpose of determining the capital gain? ' Issues Involved:1. Whether the interest amount of Rs. 16,878 constituted part of the actual cost of the plot to the assessee for the purpose of determining the capital gain.2. Whether the ground rent of Rs. 3,793 constituted part of the actual cost of the plot to the assessee for the purpose of determining the capital gain.Issue-wise Detailed Analysis:1. Interest Amount of Rs. 16,878:The assessee purchased a plot for Rs. 95,000 and raised a loan from her mother-in-law to make the payment. She paid Rs. 16,878 as interest on this loan. The Income-tax Officer excluded this interest from the actual cost of the land, reasoning that section 12B(2)(ii) of the Indian Income-tax Act, 1922, excludes any expenditure in respect of which allowance is admissible under sections 8, 9, 10, and 12. However, the Tribunal included this interest in the actual cost, leading to the dispute.The court examined whether the interest could be included in the actual cost under section 12B(2)(ii). The court determined that the interest paid was not admissible under sections 8, 9, 10, and 12, as the property was an open plot of land without any building, and the transaction was not treated as a business transaction. The court referred to the definitions and interpretations of 'actual cost' and concluded that the interest paid by the assessee was a necessary expenditure for acquiring the capital asset. Thus, it constituted part of the actual cost of the land.The court referred to previous judgments, including Commissioner of Income-tax v. Fort Gloster Industries Ltd. and Habib Hussein v. Commissioner of Income-tax, which supported the inclusion of necessary costs for acquiring a capital asset in the actual cost. Therefore, the court held that the interest amount of Rs. 16,878 should be included in the actual cost of the plot for determining capital gains.2. Ground Rent of Rs. 3,793:The assessee also claimed Rs. 3,793 as ground rent paid for the plot. The Income-tax Officer excluded this amount, and the Tribunal included it, leading to the dispute.The court distinguished the ground rent from the interest payment, stating that the ground rent was incurred to maintain the capital asset in possession, not for acquiring it. The court compared it to other maintenance expenses, such as paying a chowkidar to watch over the land, which are not included in the actual cost of a capital asset. Therefore, the court held that the ground rent of Rs. 3,793 did not constitute part of the actual cost of the plot for determining capital gains.Conclusion:The court answered the reference by stating that the interest amount of Rs. 16,878 constituted part of the actual cost of the plot for determining capital gains, while the ground rent of Rs. 3,793 did not. Both the revenue and the assessee succeeded in part, and there was no order as to costs.