TaxTMI 
TaxTMI 
2025 (6) TMI 802
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....PAN: AAJPM5888R] 3 ITA No. 1826/Chny/2024 2019-20 DIN & Order No. ITBA/APL/M/250/2024-25/1064440314(1) dated 29.04.2024. 2.0 The appellant Revenue has raised following grounds of appeal for AY's 2013-14. 2014-15 & 2019-20. GROUNDS OF APPEAL FOR AY-2013-14 & 2014-15 1. The order of the learned Commissioner of Income Tax (Appeals) is erroneous on facts of the case and in law. 2. The Ld.CIT(A) erred in directing to treat the residential status of the assessee as Non-Resident and consequently deleting the addition made of Rs. 1,95,70,965/- being the income earned by the assessee abroad and brought to tax. 3. The ld. CIT(A) erred in holding that the data as per Foreigner Regional Registration Office cannot be considered for the purpose of determination of period of stay of the assessee in India. 4. The ld. CIT(A) erred in holding that the stampings in the Visas indicating the purpose of travel abroad to Malaysia, Singapore, Thailand, etc. as 'social purpose' is for business purpose and consequently, the travel outside India is for the purpose of employment and therefore the assessee has to be treated as Non- resi....
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....untry. 3. The ld. CIT(A) erred in deleting the addition made towards Long Term Capital Gains of Rs. 2,94,33,160/- without appreciating that the transfer of shares at face value don't represent the real and actual consideration and that transfer of immovable property to the wife of the assessee represent consideration received by the assessee indirectly for transfer of his shares. 3.1 The ld. CITA) has erred in deleting the addition made towards Long Term Capital Gains of Rs. 2,94,33,160/- without appreciating the facts and evidence on record and disregarding the finding of the AO that the transaction of transfer of asset, being land & building, at a value less than the value in the books, by Oriental Cuisines Private Ld. (OCPL, in short) to the wife of the assessee, Smt. Badr Unissa amounts to a colourable device to avoid tax liability. 3.2 The ld. CIT(A) has failed to appreciate that the AO has clearly mentioned in the assessment order that the transaction of transfer of the asset under slumpp sale to the wife of the assessee is mere make- believe arrangement and that all the parties including the assessee's wife, his son and his entities are inv....
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....of the property is only to be assessed in the hands of transacting parties without considering that all connected transactions are integrated one with related parties to give effect to the transfer of shares by the assessee in lieu of transfer of Fine Dine and Lodging Division in his nominee company. 3.10 The ld. CITIA) erred in observing that the assessee is not a party to the slumpp sale contradicting his own finding that the transfer of Fine Dine and Lodging division as in respect of his shareholding in OCPL. 4. For these grounds and any other ground including amendment of grounds that may be raised during the course of the appeal proceedings, the order of learned CIT(Appeals) may be set aside and that of the Assessing Officer be restored. All the three appeals raised by the Revenue, vide ITA Nos. 1824, 1825 & 1826 are centering around common issues and hence for the purposes of convenience were heard and are being adjudicated together by this common order. 3.0 Before proceeding further we deem it necessary to briefly recapitulate the facts of the present case which are seminal to the appeal of the Revenue. The assessee, Shri M Mahadevan popularly known a....
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....730 Resident 11 2018-19 177 725 Resident 12 2019-20 169 894 Resident 3.1 From, the above table the Ld.AO concluded that the assessee had stayed in India for more than 182 days during AYs 2011-12, 2013-14, 2014-15, 2015-16, 2016-17, thereby satisfying Section 6(1)(a) and so he is a resident in India as per Income-tax Act, 1961 (hereinafter the Act). Further, he had stayed in India for more than 60 days in each year during AYs 2012-13, 2017-18 and 2018-19 and for more than 365 days in immediately preceding 4 years respectively. Accordingly, the assessee absolutely satisfies the provisions of Sec 6(1)(c) beyond doubt in those AYs i.e. an individual is said to be resident in India in any previous year if he had within 4 years preceding that year had been in India for a period or periods amounting in all to 365 days or more is in India for a period or periods amounting in all to 60 days or more in that year. Even otherwise, as the assessee has stayed in India for more than 60 days in each AY and more than 365 days in immediately preceding 4 years respectively, the AO held that he clearly satisfied the provisions of sec 6(1)(c). During assessment proce....
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....ssessee and his key associates including financial, legal consultants etc that a company whose shares were valued in upwards of Rs. 19,000/- app. in preceding about 6 months was sold for a paltry sum of Rs. 100 per share. The AO also noted inherent inconsistency in email corresponds alluding that much after the share transfer agreements were executed, the assessee and his key associates including financial, legal consultants etc were still deliberating on share valuations etc alluding towards creation of a bogus and fictitious trail. The Ld AO also observed that the sale of fine dining division of OCPL to CCMPL included a significantly valued property at 71 cathedral road in Chennai, which was again sold by OCPL to assessee's wife Ms.Badrunissa at a much lower value. The Ld.AO concluded that the entire share transfer transaction was built to avoid and escape real taxation and in reality represented a dubious colourable transaction. The Ld.AO therefore proceeded to make an addition of Rs. 2,94,33,160/-. 3.3 Aggrieved by the order, the assessee filed appeal before Ld.CIT(A) for AYs 2013-14 to 2019-20 on the above issues. During appellate proceedings, the Ld.CIT(A) in his order dat....
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....outside India on visitor visa" as stay in India. 7.13.5 Though the assessee has travelled on Multiple Entry Visas/Social Visits to Malaysia and Singapore, the existence of business has been accepted by the AO. Infact the income from business in Singapore has been considered by the AO. The appellant's claim that his travel to those countries on Multiple Entry Visas/Social Visits for purposes of business cannot be brushed aside as he has business interests in those countries. Infact the income from his activity from Singapore has been considered by the AO during the assessment proceedings. Further as stated by the assessee there is no provision to treat travel outside India on visitor visa as Stay in India. In view of the above, the view of the AO that the visit on Multiple Visit visa/Social visits is not for business/Employment cannot be upheld. 7.13.6 The AO has relied on article of DTAA between India and UAE to determine residency but this is not relevant for determining stay period as the STAY in India has to be determined as per the provisions of section 6 of Income Tax Act, 1961. 7.13.7 Similarly, the reliance of the AO on the returns filed by the....
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....transfer of FDL division of business through BTA dt:01.08.2018 with the transfer of FDL Divison (including lodge at 71, Cathedral Road, Chennai-600086) from M/s OCPL to M/s Cool Cream Milano P Ltd (M/s CCMPL) for a consideration of Rs. 1,00,000/- in which the appellant holds 99.99% shares. 8.6.3 On 18.08.2018, the assessee transferred the shares held by him in OCPL of Rs. 28,25,600/- (28256X100 face value) to M/s Peepul vide share purchase agreement dt: 18.08.2018. The assessee claimed long term capital loss of Rs. (-26011810/-) in the AY 2019-20 on the said transaction. 8.6.4 The transfer of shares by the appellant and the handing over of FD division to M/s CCMPL resulted in execution of the MOU dt: 30.07.2018. 8.6.5 The appellant has transferred his shares at face value to existing investor shareholders. The AO has made a mention of value of share of OCPL as Rs. 19,560/- per share however he has not provided the basis for arriving at this figure. The AO has also not adopted this value for detemination of capital gains. The appellant has submitted that there is no basis for adoption of this figures. The Appellant has submitted he has only transferred his....
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.... Sale deed in favor of CCMPL. After slump sale, the property has been transferred from CCMPL to Mrs. Badrunissa. In the sale deed even though it is mentioned that OCPL is the seller, represented by POA holder, the actual owner is CCMPL who acquired the rights by way of slump sale. As CCMPL is the owner of the property at No. 71, cathedral road, Chennai, it is liable for capital gains taxation on the said transfer of property. Hence AO is directed to verify whether CCMPL has paid Capital gains tax on the said transfer and take necessary action to bring the amount of capital gains to tax in the hands of the seller CCMPL. 8.6.9 AO has made a remark that the transfer of above property by OCPL to the wife of the appellant is consideration paid to the appellant in lieu of transfer of shares to Peepul. However the AO has not brought anything on record to show that undue benefit is passed on to the appellant. The AO has not doubted the genuineness of transaction nor has he faulted anything in the transaction. It is not the case of AO that the assessee has suppressed anything related to the transaction or the transaction is below market value. The AO has not held the transaction as....
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....e are two main issues emanating from the order of Ld.CIT(A). The first being rejection of India Tax residency status of the assessee and second being deletion of long term capital loss made by AO. 4.1 The first issue raised by the appellant Revenue for AY's 2013-14, 2014-15 & 2019-20, vide ITA Nos. 1824, 1825 and 1826 through its grounds of appeal is regarding the action of the Ld.First Appellate Authority in rejecting the action of the Ld AO in rejecting non-resident status of the assessee and holding that it's global income is liable for taxation in India as per provisions of section 6 of the Act. As the facts are common for all the 3 years, we proceed with facts & figures for AY 2013-14. The decision arrived at in ITA No. 1824 for AY 2013-14 shall apply mutatis mutandis for AY's 2014-15 & 2019-20 also. 4.2 As regards the controversy as to whether the global income of the assessee is liable for taxation in India or not exigible in India, it has been noted that there are claims and counter claims made by the Revenue and the assessee. The sub-issues seminal to the controversy are whether the assessee had stayed for more than 182 days in India to be made exigible to taxes in I....
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....ods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. ^67[ ^68[Explanation 1.]-In the case of an individual,- (a) being a citizen of India, who leaves India in any previous year 6970[as a member of the crew of an 71Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or] for the purposes of employment 69 outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted ; (b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and 72[eighty-two] days" had been substituted 73[and in case of 74[such person] having total income, other than the income from foreign sources, exceeding fifteen lakh r....
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....ar if such person is- (a) an individual who has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less; or (b) a Hindu undivided family whose manager has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less ^82[; or (c) a citizen of India, or a person of Indian origin, having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, as referred to in clause (b) of Explanation1 to clause (1), who has been in India for a period or periods amounting in all to one hundred and twenty days or more but less than one hundred and eighty-two days; or (d) a citizen of India who is deemed to be resident in India under clause (1A). Explanation.-For the purposes of this section, the expression "income from foreign ....
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....e control and management of his affairs is situated in India. The Ld. AO has clearly brought out on records with demonstrative evidences that all along the assessee has been showing that all the control and management of his affairs was situated in Chennai, India. The Ld.AO has relied upon assessee's own documents to support his arguments. 4.6 The Ld.Counsel for the assessee has vehemently argued that the FRRO data cannot be relied upon for assessee's period of residence in India. The argument put forth by the Ld.AR have been found to be far from convincing and bereft of any justifiable reason. We need to first examine as to what and why is an agency called the FRRO at all in existence. The answer actually lies in the sovereign authority enjoyed by a country. The existence of any nation is principally reflected by its territorial coverage over a mass of land. Thus, the territorial boundaries of a nation define the existence of a nation per se. Since, every nation is proud owner of the territory under its control, the border lines be it at land, or air or sea assume critical significance and constant monitoring and protection. Every sovereign nation has full authority to keep a t....
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....f the assessee having extensive overseas business interest is borne from records. So is the fact of overseas travel undertaken. The question that however comes is as to whether all the overseas travels were undertaken for business purposes particularly in cases where the Visa granted by foreign jurisdictions clearly specified the visit as for social purposes or tourists purposes. The details of Passports entries referred by the Ld.AO in his order clearly indicate that the visits under question were taken for social purposes or tourists purposes. It is an accepted international practice that every country restricts its Visas for a specific purposes. Whenever a Visa is granted by a foreign jurisdiction for employment or business, clear stipulations are made. The principal idea being to ensure that the income earned in foreign jurisdiction gets locally taxed or governed by double taxation avoidance agreements, if any. No country grants Visa for employment or business purposes liberally. The mere argument that because Revenue has accepted that assessee was having overseas business and travelling would not, ipso facto, mean that the assessee would not be exigible to taxation in India. M....
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....cause he is a resident of UAE for which a certificate of tax residency was also produced, and therefore he is beyond the purview of section-6 of the Act. It has been therefore argued that the assessee's income cannot be brought to tax in India. The Ld. DR argued that the relief accorded by the Ld.CIT(A) accepting the residence certificate issued by UAE authorities indicating that assessee is a tax resident in Dubai is based upon wrong appreciation of facts. At the outset, the Revenue has doubted the very certificate on the premise that it was issued in 2021. It has been argued that the very purpose of DTAA is to determine the tax liability of person who belongs to one country but has certain transaction which are taxable in both the countries but to avoid the double taxation of same income at both the countries has to necessarily determine the residential status of that person as per the relevant article of the DTAA only. It is the case of the Revenue that because in the instant case assessee has stayed for more than 182 days in India in accordance with the provisions of Section-6(1) of the Act, therefore Article-4 of the DTAA provisions of India-UAE would not be applicable. We hav....
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....ised by the Revenue in ITA No.1825 & 1826 Supra are also partly allowed. 7.0 The next issue raised by the appellant Revenue for AY-2019-20 is regarding an addition of Rs. 2,94,33,160/- made by the Ld.AO under the head long term capital gains and its deletion by the Ld.CIT(A). The Ld. AO has discussed the issue in para 12.1 to 12.14 of his order. The Ld.DR explained the following brief factual matrix of the case. The assessee had claimed in its return of income loss on account of sale of shares of Rs. 2,60,11,810/-. The Ld. AO had noted that the assessee was founder shareholder of a company Oriental Cuisine pvt ltd (OCPL) along with one Peepul Fund II LLC Mauritius (PF) having 31.8% and 62.5% shareholding each. The assessee was also shareholder of one Cool Cream Milano Pvt Ltd (CCPL) having 99.99% shareholding. On 01.08.2018 by way of a business transfer agreement CCPL acquired, Fine Dine division of OCPL for Rs. 1 lakh by virtue of slump sale. On the impugned date, assets and liabilities of Fine Dine division of OCPL were Rs. 12.85 Crores and Rs. 22.28 Crores respectively. The assets included land and building alone of Rs. 7.77 Crores and Rs. 1.08 Crores respectively. The value ....
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....tants. 7.1 The Ld. DR submitted that the valuation of OCPL shares of Rs.19,556/- share on 30.06.2018 was in the knowledge of Peepul Advisors by the valuer Shri N.Krishnan of Brahmayya and company vide email dated 04.09.2018 which was duly acknowledged by the former. It was urged that the valuation of OCPL share of Rs. 19,556/- share as on 30.06.2018 was reported on 04.09.2018 as against the alleged sale of share at Rs.100/- share indicated in the agreement dated 18.08.2018. The Ld. DR thus argued that the corresponding valuation of shares made by the assessee u/s 56(2)(x) of the Act r.w. rule-11UA(1)(c)(v) as on 31.07.2018 at Rs. 11/- share was also an afterthought. The Ld. DR argued that the impugned valuation report dated 10.08.2018 of one M/s.Senthil and Associate was also not the correct report because the valuation was arrived at on the premise that "...the above valuation per share of INR 11 is based on the financial data provided by the management as on 31.07.2018 after giving effect to the business transfer agreement...". The Ld.DR argued that earlier share valuation reports indicating share valuation of Rs. 19,000/- and more were intentionally withheld from valuer durin....
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....s the due amount is passed on to him by way of property sold to his wife Smt Badrunissa at a much lower rate than the valuation made by one M/s.Arul Nambi Engineering Consultants as on 23.09.2017 of Land at Rs. 7,77,90,625/- and Building at Rs. 2,74,18,600/- total Rs. 10,52,09,225/-. The Ld. DR argued that the conclusions drawn by the Ld.CIT(A) while according relief to the assessee were therefore based upon wrong appreciation of facts and hence excessive and erroneous. The Ld. DR vehemently argued that the entire construction of agreements, valuation reports by the assessee indicated towards indulgence in tax evasion through the use of colourable devices. Reliance was placed upon the decision of Hon'ble Apex Court in the case of McDowell's. 7.2 The Ld. AR submitted that the Ld. CIT(A) has accorded relief after careful consideration of the facts of the case and that no intervention is required to be made at this stage. In support of its contentions, reference was invited to para 8.6.1 to 8.6.13 of the appellate order which is reproduced below:- 8.6.1 A MOU dt: 30.07.2018 signed between the appellant and investor M/s Peepul provided for division of the business of the co....
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....said value in computing the capital gains on transfer of shares. 8.6.6 As per Business Transfer Agreement dated 01/08/2018 the FDL division has been transferred from OCPL to CCMPL, nominee of the appellant. It is also seen that the business has been transferred by way of a slump sale transaction between OCPL and CCMPL. This slump sale also includes the property bearing No.71, cathedral road, Chennai. The Assets and Liabilities for slump sale shown by M/s OCPL and M/s CCPL is as under: 8.6.7 As the transaction is between two corporate entities, the seller is liable for payment of Capital gains arising as result of this transaction. The capital gains, as a result of this transfer arises in the hands of the seller M/s OCPL. The property bearing no 71, cathedral road, Chennai, instead of registering to CCMPL (by OCPL) has been handed over by way of Power of attorney to the Shri Tarun Mahadevan, son of the appellant. As this property is part and parcel of slump sale, the value of this property has to be taken into consideration while arriving at capital gains in the hands of the seller OCPL. The AO is directed to examine whether any capital gains has been paid on this ....
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.... (OCPL represented by POA holder). 8.6.11 As it is established that the property no.71, cathedral road is sold below market value to the buyer, the same needs to be considered for taxation in the hands of the recipient Mrs. Badrunissa. As per provisions of Section 56(2)(x) any person receiving any immoveable property below guideline value is to be taxed in the hand of the recipient under the head Income from Other Sources. 8.6.12 It has been brought to my knowledge that addition was made in the hands of Mrs. Badrunnissa in respect property received at below guideline value. It is seen that the guideline value as per the stamp valuation authority was Rs. 5,42,03,485/- and in the course of assessment proceedings in respect of Smt. Badrunissa Begum for AY 2019-20, the difference between the value adopted by the Stamp Valuation Authority and the sales consideration i.c Rs. 20964285/- was added u/s 56(2)(vii)(b) of the Act. However the AO has mentioned that the value of property shown by OCPL in its slump sale at Rs. 7,77,90,625/- for land and Rs. 1,08,93,545/- for building (total Rs. 8,86,84,170/-). Hence the AO may examine this aspect and take necessary action in the....
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....on reports were not provided to the valuer who did valuation under Rule 11UA. We have also taken note of the fact that the land and building belonging to Fine Dine Division of OCPL was sold through slump sale to CCPL and also that the assets of the impugned Fine Dine Division of OCPL included the property at 71, Cathedral Road, Chennai. The sale of the same again to assessee's wife through assessee's son who was power of attorney holder of the CCPL again becomes questionable transaction. We have noted that the Ld.AO has observed that property worth Rs. 8,79,84,170/- was sold for just Rs. 3,32,39,200/-. The Ld. First Appellate Authority has seemingly failed in appreciating this crucial aspect of the case. The case at hand therefore assumes the character of being a case of ill-legitimate tax planning attempted by way of use of colourable devices. 8.1 On the matter we place reliance upon the decision of Hon'ble Supreme Court in the case of MacDowell and Company Limited vs The Commercial Tax Officer 1986 AIR 649 wherein the Hon'ble Apex held that tax planning may be legitimate provided it is within the frame work of law, colourable devices cannot be part of tax planning and it is wr....
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....to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. A hint of this approach is to be found in the judgment of Desai, J. in Wood Polymer Ltd. v. Bengal Hotels Limited(1) where the learned judge refused to accord sanction to the amalgamation of companies as it would lead to avoidance of tax. It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation as was done in Ramsay, Burma Oil and Dawson, to expose the devices for what they really are and to refuse to give judicial benediction....". 8.2 We are therefore of the considered view that the transactions of impugned long....
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....han the value of shares adopted by assessee's own valuers in recent past. Thus, whereas the shares were transferred by the assessee to PF vide agreement dated 18.08.2018, the same shares were reportedly valued as on 30.06.2018 at Rs. 19,566/- per share by one Shri N.Krishna who was partner of Brahmayya and company CAs. It is pertinent to note that in the email dated 04.09.2018 he had clearly conveyed that "...we have carried out the valuation of Peepul Capital Fund II LLC 's holding as on 30.06.2018....'' . The valuer proceeds to value shares of Oriental Cusine Private Ltd at INR Rs. 1105.56 Millions or US Dollars 16,121,907. The value of INR Rs. 1105.56 Millions aggregates to Rs. 19,566/- per share. The value adopted by the assessee at Rs. 100 per share and by the assessee's 11UA valuer at Rs. 30 per share is therefore far too low in comparison to the valuations done as on 30.06.2018. Nothing has been brought on record as to how and what prompted such a drastic reduction in the value of the shares. It all goes on to indicate that the valuation of shares was intentionally brought down by the assessee to avoid true incidence of taxes. Be that as it may be, we are of the considered v....
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....e assets and liabilities of "Fine Dining & Lodging Business" undertaking of Oriental Cuisines Private Ltd, bought by Cool Cream Milano Private Led: S.No. Particulars In Rs. L Fixed Assets: 1 Plant and Machinery 75.83.437 7 Furniture and Fixturem 18,31.370 3 Computere 1.09.291 Document 2 Vehicles 2.04.093 Electrical Fittings 21.31,182 Building-Leasehold 93.15.412 Building - Own 107.27.200 H Land 2.2512.000 Current Assetsi Security deposits 2.47:24,462 Inventories Food & Beverages 29.39.310 10 Packing materiale 1.72,980 11 Housekeeping materials 1.12,371 12 Stationery 34.448 13 Bank 22,135 Total Assets (A) 8,24,20,596 Liabilities: 1 City Union Bank OD and Term Loans 19.00.36,906 Loan from Director 2,03,00.000 F Sundry Creditor 1,25,00,000 Total Liabilities(8) 22,28,36,906 IV. Sale Consideration (C) 1,00,000 V. Goodwill [()+(CH(A)] 14,09,16,310 V. Document 3 व à¤à¤¾. रा. à¤. Q.No. 18; As per the summary of valuation report (annexure 11), the share holding of Peepul Capital Fund II LLC in Oriental Cuisines Pvt Ltd of 56,502 shares is valued ( fair market value) ....