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2025 (7) TMI 129 - HC - Income TaxCapital gains on sale of shares of its Indian subsidiary - assessee s claim to tax long-term capital gains on sale of shares at 10% u/s 112(1)(c)(iii) of the Act - assessee originally offering such gains at 20% u/s 112(1)(c)(ii) in the return of income without the assessee filing a revised return as mandated u/s 139(5) and section 119 of the Act - retrospective amendment to section 112(1)(c)(iii) - AO however rejected the contention of the assessee on the ground that there was uncertainty as to whether the unlisted securities as mentioned in section 112(1)(c)(iii) of the Act would include shares of a private limited company or not and accordingly out of abundant caution the assessee paid taxes at the rate of 21.63% on the sale of unlisted shares of private limited company CIT(A) also rejected the claim of the assessee on the ground that such change of claim could have been possible only by filing the revised return of income and such effect cannot be granted to the assessee in absence of CBDT issuing any instruction u/s 119 of the Act - ITAT allowing the claim of assessee u/s.112(1)(c)(iii) with regard to taxing the Long term capital gain on sale of shares @10% though in Return of Income it was offered for tax @ 20% u/s.112(1)(c)(ii) HELD THAT - Respondent assessee was eligible to pay tax at the rate of 10% in view of the retrospective amendment as per the Finance Act 2017 which was made by the assessee before the AO. This Court in case of Mitesh Implex 2014 (4) TMI 484 - GUJARAT HIGH COURT relying upon various decisions of Hon ble Apex Court and more particularly in case of National Thermal Power Co. Ltd. 1996 (12) TMI 7 - SUPREME COURT (LB) wherein held that when the question of law was raised for the first time before the Tribunal though the facts were already on record it was observed that there is no reason why the assessee should be prevented from raising such a question before the Tribunal for the first time so long as the relevant facts are on record in respect of the item concerned and there is no reason to restrict the power of the Tribunal in such appeal. Even in case of Goetze (India) Ltd. 2006 (3) TMI 75 - SUPREME COURT the Hon ble Apex Court after distinguishing the judgment in case of National Thermal Power Co. Ltd. 1996 (12) TMI 7 - SUPREME COURT (LB) in facts of the said case while deciding the powers of the Assessing Officer has made it clear that the issue in the case was limited to the power of the assessing authority and does not impinge on the power of the Income Tax Appellate Tribunal under section 254 of the Income Tax Act 1961. We are therefore of the opinion that in view of above dictum of law no interference is called for.
1. The core legal questions considered by the Court in this appeal under section 260A of the Income Tax Act, 1961 ("the Act") were:
(a) Whether the Income Tax Appellate Tribunal ("the Tribunal") was correct in allowing the assessee's claim to tax long-term capital gains on sale of shares at 10% under section 112(1)(c)(iii) of the Act, despite the assessee originally offering such gains at 20% under section 112(1)(c)(ii) in the return of income, without the assessee filing a revised return as mandated under section 139(5) and section 119 of the Act. (b) Whether the Tribunal erred in disregarding the Supreme Court's decision in Goetze India Ltd. v. CIT, which held that a claim for deduction not made in the original return can only be entertained if a revised return is filed within the prescribed time. 2. Issue-wise detailed analysis: Issue (a): Validity of claim for lower tax rate without filing revised return Relevant legal framework and precedents: Section 112(1)(c)(iii) of the Act, as amended retrospectively by the Finance Act, 2017, provides for taxing long-term capital gains arising from transfer of shares of unlisted companies at 10%. Section 139(5) mandates filing a revised return within the prescribed time if there is any omission or wrong statement in the original return. Section 119 empowers the CBDT to condone delay or permit rectification. The Supreme Court's ruling in Goetze India Ltd. v. CIT (2006) restricts claim for deductions not made in the original return to be entertained only if a revised return is filed. Court's interpretation and reasoning: The Tribunal allowed the claim for the lower tax rate of 10% even though the assessee did not file a revised return but made the claim during assessment proceedings. The Tribunal relied on Circular No. 14(XL-35) of 1955, which directs departmental officers to assist taxpayers in claiming reliefs and not to take advantage of their ignorance. It also relied on several High Court decisions (B.G. Shirke Construction Technology, Karnataka State Co-Operative Federation Ltd., Abhinitha Foundation Pvt. Ltd., and Sesa Goa Ltd.) which held that appellate authorities can entertain claims not made in the original return without requiring a revised return. Key evidence and findings: The assessee originally offered long-term capital gains at 20% in the return but subsequently claimed the benefit of the retrospective amendment for taxing at 10% during assessment. The Assessing Officer rejected this claim due to absence of revised return. The CIT(A) upheld the rejection. The Tribunal reversed this, allowing the claim based on the retrospective amendment and relevant judicial precedents. Application of law to facts: The Court examined whether the claim for a reduced tax rate under a retrospective amendment could be entertained without a revised return. It noted that the relevant facts were on record and the claim was based on a legal change. It distinguished the power of the Assessing Officer from that of the appellate authorities, emphasizing that appellate authorities have plenary powers to entertain new grounds or claims if facts are on record. Treatment of competing arguments: The Revenue relied heavily on Goetze India Ltd. to argue that the claim must be made by filing a revised return. The assessee relied on Mitesh Implex and other High Court decisions supporting the appellate authorities' power to entertain new claims without revised returns. The Court analyzed these precedents in detail, clarifying that Goetze applies to the Assessing Officer's powers but does not limit the Tribunal's or appellate authorities' jurisdiction. Conclusions: The Court concluded that the Tribunal was correct in allowing the claim for the 10% tax rate without requiring a revised return, as the appellate authorities have the power to entertain such claims when facts are on record and the claim arises from a legal contention or retrospective amendment. Issue (b): Applicability of Goetze India Ltd. decision on revised returns and claims Relevant legal framework and precedents: The Supreme Court in Goetze India Ltd. held that an assessee cannot make a claim for deduction at the assessment stage without filing a revised return. However, the Court clarified that this limitation applies to the Assessing Officer and does not restrict the Tribunal's power under section 254 of the Act to entertain points of law for the first time. Court's interpretation and reasoning: The Court scrutinized the Goetze ruling in light of subsequent High Court decisions and the Supreme Court's decision in National Thermal Power Co. Ltd. v. CIT, which permitted raising legal questions for the first time before the Tribunal if facts are on record. The Court emphasized that Goetze's restriction is confined to the Assessing Officer's powers and does not curtail the appellate authorities' plenary jurisdiction. Key evidence and findings: The Court relied on the detailed exposition in Mitesh Implex, which reviewed multiple High Court decisions and clarified the scope of appellate authorities' powers to entertain new grounds or claims, including those not raised in the original return. Application of law to facts: The claim for the 10% tax rate was a legal contention arising from a retrospective amendment and was raised during appellate proceedings with all relevant facts on record. The Court applied the principle that appellate authorities can entertain such claims to ensure real income is taxed and taxpayers are not deprived of reliefs due to technicalities. Treatment of competing arguments: The Revenue's argument that Goetze prohibits entertaining claims without revised returns was rejected as too restrictive in the appellate context. The Court favored a pragmatic approach consistent with the non-adversarial nature of income tax proceedings. Conclusions: The Court held that Goetze does not bar appellate authorities from entertaining claims not made in the original return, provided the facts are on record and the claim is a pure question of law or legal contention. 3. Significant holdings: "The decision of the Supreme Court in the case of Goetze (India) Ltd. vs. Commissioner of Income-tax is confined to the powers of the assessing officer and accepting a claim without revised return. This is what Supreme Court observed in the said judgment while distinguishing the judgment in the case of National Thermal Power Co.Ltd. vs. Commissioner of Income tax and that is how various High Courts have viewed the dictum of the decision in the case of Goetze (India) Ltd. vs. Commissioner of Income-tax. When it comes to the power of Appellate Commissioner or the Tribunal, the Courts have recognized their jurisdiction to entertain a new ground or a legal contention." "Any ground, legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the Tribunal when facts necessary to examine such ground, contention or claim are already on record. In such a case the situation would be akin to allowing a pure question of law to be raised at any stage of the proceedings." "Income Tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. Therefore, if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come, merely because it is raised for the first time before the appellate authority without resorting to revising the return before the assessing officer." "We are therefore of the opinion that in view of above dictum of law, no interference is called for in the impugned judgment and order of the Tribunal as no question of law much-less any substantial question of law arises in the appeal." The Court thus upheld the Tribunal's decision allowing the assessee to be taxed at 10% on long-term capital gains arising from sale of unlisted shares under the retrospective amendment, without requiring a revised return, and dismissed the Revenue's appeal for lack of merit.
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