Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 462 - AT - Income TaxGain on sale of land - business income or long term capital gain - HELD THAT:- `Special provision for full value of consideration for transfer of assets other than capital assets in certain cases’ as contained in section 43CA of the Act, which has been heavily relied by the AO. Sub-section (1) provides that : `Where the consideration received or accruing as a result of the transfer by an assessee of an asset (other than a capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer.’ It is manifest from the above provision that it is a deeming provision in so far as the full value of consideration received as a result of transfer of some property, which is held otherwise than a capital asset, is concerned. It is not a charging provision in itself nor does the deeming fiction extends to `transfer’. Unless the charge is created first under a specific provision, the deeming provision for computation is not activated. The ld. DR has not drawn our attention towards any provision of the Act, which in the given circumstances, deems `transfer’ of land so as to attract chargeability. Section 43CA of the Act can be magnetized only when some building or land etc., held otherwise than as a capital asset, is transferred. In case the property itself is not transferred, the question of deeming the stamp value as the full value of consideration does not arise, which is only a stage posterior to the `transfer’ of the property. Authorities below were not justified in making or confirming the addition in the hands of the assessee under the head `Capital gains’ as well as `Profits and gains from business or profession’ by treating it as a case of transfer of land to M/s Fulzan Properties in as much as the land itself was not transferred by the assessee during the year under consideration.
|