TaxTMI 
TaxTMI 
2002 (7) TMI 37
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....ther, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no justification for charging capital gains as well as profit under section 41(2) of the Income-tax Act, 1961?" The assessee is a firm which was carrying on business of manufacture and sale of wind screen glass for automobiles and toughened glass. The business and the factory was leased out to Auto Glass Industries which lease was also terminated in the accounting year relevant to the assessment year 1979-80. The relevant assessment year in hand is 1980-81. For the year under review there was no manufacturing operation at all. The assessee had entered into a financial arrangement with the Rajasthan Financial Corporation by means of a m....
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....ed to the tune of Rs. 2,04,313. In appeal before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) has observed that there was no actual transfer, therefore, there is no question of charging profit under section 41(2) or the capital gains. The view taken by the Commissioner of Income-tax (Appeals) has been upheld by the Tribunal. Heard learned counsel for the parties. While allowing the appeal of the assessee, the Commissioner of Income-tax (Appeals) has given a finding of fact and expressed the view that no capital gain as well as the profit under section 41(2) does arise in this case and observed in para. 6 as under: "I find that there is considerable force in the arguments put forth by the appellant's....
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....ommissioner of Income-tax (Appeals) on the Supreme Court decision regarding transfer of property that the registration is a must in case where immovable properties are involved is also rightly placed. In the light of the above discussion and for the reasons given by the Commissioner of Income-tax (Appeals) in his order, his action is hereby confirmed." Whether for the purpose of taxing the income, registration of the sale deed is a condition precedent to tax the capital gain or profit under section 41(2) of the Income-tax Act, 1961, though this issue is not directly considered by their Lordships in the case of CIT v. Podar Cement Pvt. Ltd. [1997] 226 ITR 625 (SC), but their Lordships have considered the issue in detail as to who will be th....
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....e income-tax and the profit or gain or income should be taxed treating it as a transfer. Mr. Jain, learned counsel for the assessee, submits that as the agreement of sale has not been considered on the merits, the Commissioner of Income-tax (Appeals) as well as the Tribunal have taken the view in favour of the assessee stating that the provisions of the Transfer of Property Act cannot be ousted and, therefore, allowed the appeal. In the interest of justice, we deem it proper to remit the matter back to the Tribunal to consider whether on reading the document as a whole, it constitutes a transfer, in the light of the observations of their Lordships in the case of CIT v. Podar Cement Pvt, Ltd. [1997] 226 ITR 625 (SC). If the Tribunal comes ....