2001 (12) TMI 5 - HC - Income Tax

Capital gains - assessee submitted that there is another issue pertaining to substitution of indexed cost of acquisition and interest under section 234B which was the subject matter of the revision petition dated January 18 2000 and the same has also been dismissed by the aforesaid common order.- On a perusal of the impugned order of the Commissioner of Income-tax under section 264 dated March 30 2001 it is seen that although the revision petition dated September 28 2000 has been filed as supplementary petition to the original revision petition dated January 18 2000 for all practical purposes both the revision petitions have been considered to be two separate and distinct petitions and even the prescribed fee of Rs. 25 has been paid separately. Merely because two revision petitions have been disposed of by a common order it is not open to the petitioner to file a combined petition and pay court fees payable on one petition only.

Issues:
1. Challenge to the order dated March 30, 2001, passed by the Commissioner of Income-tax under section 264 of the Income tax Act, 1961.
2. Revision petition under section 264 of the Income-tax Act for the assessment year 1996-97.
3. Refund of on money received from original investors and its impact on capital gains computation.
4. Double taxation issue regarding on money and capital gains.
5. Dismissal of revision petition dated January 18, 2000, pertaining to substitution of indexed cost of acquisition and interest under section 234B.

Issue 1: Challenge to the Commissioner's Order
The petitioner challenged the order dated March 30, 2001, dismissing two review petitions under section 264 of the Income-tax Act. The petitioner contended that the on money received from original investors should be refunded upon selling the project to third parties, impacting the computation of capital gains for the assessment year 1996-97. The petitioner argued against double taxation, claiming the on money was essential for selling the project free from encumbrances. However, the Commissioner's order was upheld by the court, stating it was well-reasoned and objective, highlighting the lack of evidence supporting the petitioner's claims, leading to the dismissal of the petition.

Issue 2: Revision Petition for Assessment Year 1996-97
The petitioner filed a revision petition under section 264 for the assessment year 1996-97, seeking a direction to recompute capital gains after refunding on money to original investors. The Commissioner dismissed the petition on March 30, 2001, leading to the petitioner challenging the decision. The court found that the on money received before the search in January 1995 was not returned to investors post-sale, emphasizing the lack of evidence supporting the petitioner's claims. The court upheld the Commissioner's decision, stating there was no double taxation as the income sources differed between the assessment years.

Issue 3: Impact of On Money Refund on Capital Gains
The petitioner argued that the refund of on money to original investors should be considered in computing capital gains for the assessment year 1996-97. However, the court found no evidence supporting the claim, highlighting the absence of proof of payments or confirmatory letters from investors. The court upheld the Commissioner's decision, stating the claim was fictitious and rejected due to lack of evidence.

Issue 4: Double Taxation Concern
The petitioner raised concerns about potential double taxation regarding on money and capital gains. However, the court ruled that there was no double taxation as the income sources in the assessment years were distinct. The court upheld the Commissioner's decision, emphasizing the different nature of income sources in the two years.

Issue 5: Dismissal of Revision Petition dated January 18, 2000
The court dismissed the revision petition dated January 18, 2000, related to the substitution of indexed cost of acquisition and interest under section 234B. The court noted that the petitioner did not press this issue and allowed for the filing of an independent petition if desired. The issue was dismissed with liberty for the petitioner to file a separate petition on the matter.

In conclusion, the court dismissed the petition challenging the Commissioner's order, upheld the decision on the revision petition for the assessment year 1996-97, addressed concerns about double taxation, and dismissed the revision petition dated January 18, 2000, with the option for the petitioner to file a separate petition on the issue.

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