2025 (7) TMI 909 - HC - Income Tax

Reopening of the assessment - additions made u/s 68 - Whether Assessees had not entered into the transaction on which any tax could be levied and they were also not involved in any transaction for sale or transfer of their interest in the Prithviraj Road Property to any third party HELD THAT - There is no dispute that the Assessees have not transferred any part of their interest or title in the Prithviraj Road Property to any third party. The interest if any acquired by the Transferee in M/s Om Shivay Real Estate Private Limited is by virtue of acquiring the shares of the Assessee. Assessee reiterated their contentions before the learned ITAT that no additions under Section 68 of the Act could be made on the basis of the estimation of the market value of the property that had neither been sold or transferred by the Assessees. The transaction in regard to the Prithviraj Road Property if any had taken place between the shareholders by transferring the shares to the Transferee. Therefore the income or deemed income had arisen in the hands of the transferors and not the Assessees. The fundamental error committed by the AO is proceeding on the assumption that the acquisition of indirect interest in the subject property by transfer of shares or allotment of shares of the Assessees results in the Assessees being divested of any interest or title held by them in the subject property. Whilst the learned ITAT accepted the Assessee s contentions the learned ITAT faulted the CIT(A) for not bringing in detail facts as to how the Prithviraj Road Property was held as stock-in-trade and accordingly remanded the matter to the CIT(A). Assuming that the facts as found by the AO are correct that is the value of the Prithviraj Road Property is Rs. 150 Crores the transaction of sale and purchase of shares of the Assessee companies would not result in any income in the hands of the Assessees as the Assessees have not transferred any of their properties during the relevant Assessment Year. The incidence of tax if any would be confined to the transacting parties that is the then existing shareholders of the Assessees and the transferees to whom the shares have been allegedly sold at an undervalue. The question whether the Prithviraj Road Property is held by the Assessees as stock-in-trade or any other asset is not relevant in considering whether any addition could be made to the income of the Assessees under Section 68 of the Act on account of the sale/purchase of the shares of the Assessee company by its shareholders or by otherwise acquisition of shares. The Assessees continue to hold the title and interest in the Prithviraj Road Property and had not alienated their interest or tile in favour of any other person. There is no ambiguity in the findings of the CIT(A) and we find no justification for the learned ITAT to have remanded the matter to the CIT(A).

Summary

Issues Presented and Considered

The core legal questions considered by the Court were:

• Whether the reopening of the assessments under Section 148 of the Income Tax Act, 1961 ("the Act") was valid and justified.
• Whether the addition of Rs. 75 crores under Section 68 of the Act on account of alleged undisclosed income arising from the transfer of 50% share in the Prithviraj Road Property was legally sustainable.
• Whether the transaction involved a transfer of property by the Assessees or merely a transfer of shares in the Assessee companies, and the consequent tax implications of such distinction.
• Whether the corporate veil of the Assessees could be lifted to treat the share transfer as a direct transfer of the underlying property.
• The applicability and interpretation of valuation rules and provisions relating to fair market value of shares under the Act and Rules.
• The correctness of the Assessing Officer's (AO) reliance on the District Valuation Officer's (DVO) report and the treatment of the property valuation for income computation.
• The appropriateness of the penalty proceedings initiated under Section 271(1)(c) of the Act.

Issue-Wise Detailed Analysis

Validity of Reopening of Assessment under Section 148

The reopening was triggered by the discovery of a Memorandum of Understanding (MoU) indicating that 50% share in the Prithviraj Road Property was transferred to a third party at a significantly undervalued consideration (Rs. 5 crores vs. market value Rs. 150 crores). The AO issued notice under Section 148 to reassess the income of the Assessees.

The CIT(A) and subsequently the Court examined whether the AO had recorded proper reasons for reopening and whether the Assessees were given adequate opportunity. The Revenue contended that proper satisfaction was recorded and opportunity was provided. However, the CIT(A) found that the AO's addition was based on presumption without corroborative evidence and without proper enquiry.

The Court noted no dispute regarding procedural compliance but emphasized that reopening must be based on tangible material. The CIT(A)'s conclusion that the AO erred in reopening without sufficient evidence was upheld, as the AO failed to produce corroborative material to justify the reassessment.

Nature of Transaction: Transfer of Property vs. Transfer of Shares

The pivotal issue was whether the Assessees had transferred their interest in the Prithviraj Road Property or whether the transaction was limited to transfer of shares of the Assessee companies to the Transferee. The AO treated the transaction as a direct transfer of property and added income accordingly under Section 68.

The CIT(A) found that the Assessees had not transferred title or interest in the property; rather, the shareholders had transferred shares in the Assessee companies. The corporate veil could not be pierced to treat share transfer as property transfer. The Court agreed, holding that the Assessees continued to hold title and interest in the property and no alienation had occurred.

The Court reasoned that the incidence of tax, if any, would arise in the hands of the shareholders who transferred their shares, not the companies themselves. This distinction was critical in negating the AO's addition under Section 68 in the hands of the Assessees.

Application of Section 68 of the Income Tax Act

Section 68 deals with unexplained cash credits and income from undisclosed sources. The AO invoked this provision to treat the undervalued transaction as undisclosed income. However, the CIT(A) found no evidence that the Assessees had received any undisclosed income or that the transaction was a sham. The AO's reliance on the market value of the property rather than the actual transaction value was held to be misplaced.

The Court emphasized that Section 68 cannot be invoked merely on the basis of difference between market value and transaction value, especially where the transaction is a share transfer and not a property transfer. The CIT(A)'s direction to delete the addition of Rs. 75 crores under Section 68 was affirmed.

Valuation and Role of District Valuation Officer

The DVO's report stated that no investment or structural changes were made in the property during the relevant period and described the property as an old single-story residential building. Despite this, the AO adopted a market value of Rs. 150 crores for the property. The CIT(A) and the Court found that the AO's reliance on this valuation without corroborative evidence or proper inquiry was erroneous.

The Revenue's contention that the AO had discretion to refer valuation matters to the DVO was accepted in principle, but the ultimate valuation and its application to tax computation must be based on proper evidence and not mere assumptions.

Interpretation of Fair Market Value Rules and Share Valuation

The CIT(A) noted that the share transfer was executed on 30.05.2010 and the valuation was governed by Rules 11U and 11UA of the Income Tax Rules, 1962, which provide methods for computing fair market value (FMV) of unlisted shares. The FMV determined was below the face value, whereas the shares were transferred at Rs. 25 per share, indicating no undervaluation.

The Court recognized that the transaction complied with the prescribed valuation methodology and no adverse inference could be drawn under Section 56(2)(viia) of the Act, which applies to receipt of property or shares at undervalue.

Corporate Veil and Income Attribution

The AO attempted to lift the corporate veil to treat the share transfer as a direct transfer of property interest. The CIT(A) and the Court rejected this approach, holding that the Assessees remained owners of the property and had not alienated their interest. The income, if any, arising from sale of shares would be taxable in the hands of the shareholders, not the Assessees.

Penalty Proceedings under Section 271(1)(c)

The AO initiated penalty proceedings for concealment of income and furnishing inaccurate particulars. The CIT(A) found no concealment or inaccurate particulars, as the Assessees had not recorded any undisclosed income. The Court did not specifically address penalty but the deletion of additions implied no basis for penalty.

Significant Holdings

The Court held:

"The fundamental error committed by the AO is proceeding on the assumption that the acquisition of indirect interest in the subject property by transfer of shares or allotment of shares of the Assessees results in the Assessees being divested of any interest or title held by them in the subject property."

"Assuming that the facts, as found by the AO are correct, that is, the value of the Prithviraj Road Property is Rs. 150 Crores, the transaction of sale and purchase of shares of the Assessee companies would not result in any income in the hands of the Assessees as the Assessees have not transferred any of their properties during the relevant Assessment Year."

"The incidence of tax, if any, would be confined to the transacting parties, that is, the then existing shareholders of the Assessees and the transferees to whom the shares have been allegedly sold at an undervalue."

"The question whether the Prithviraj Road Property is held by the Assessees as stock-in-trade or any other asset is not relevant in considering whether any addition could be made to the income of the Assessees under Section 68 of the Act on account of the sale/purchase of the shares of the Assessee company by its shareholders or by otherwise acquisition of shares."

The Court concluded that the CIT(A) was correct in deleting the addition of Rs. 75 crores under Section 68 and that the ITAT's remand to the CIT(A) was unwarranted. The appeals filed by the Revenue were allowed, and the impugned order of the ITAT was set aside.