2024 (3) TMI 947 - AT - Income Tax

Capital gain computation - allowability of transfer expenses brokerage air tickets hotel accommodation receipts postal charges receipts conveyance charges lawyer fees photocopying expenses - as per DR expenditure was merely incidental to the sale transaction and cannot be allowed to be deduction since such an expenditure was not wholly and exclusively for the transfer of property - HELD THAT - As decided in SHAKUNTALA KANTILAL 1991 (3) TMI 123 - BOMBAY HIGH COURT what constitute the expenditure incurred wholly and exclusively in connection with transfer as contemplated under section 48(i) of the Act and reached a conclusion that the expression in connection with such transfer is certainly wider than the expression for transfer and held that any amount of payment of which is absolutely necessary to effect transfer will be an expenditure covered by section 48(i) of the Act. In the case on hand the assessee is a non-resident individual and for the purpose of effecting transfer of the property he had to travel to India and incurred the expenditure for obtaining special power of attorney from Indian Consulate in USA air tickets hotel accommodation receipts postal charges receipts conveyance charges lawyer fees photocopying expenses without which the transfer could not have taken place. We therefore are of the opinion that in terms of the ratio in the case of Shakuntala Kantilal supra said expenditure is covered under section 48(i) of the Act is allowable. We accordingly hold that the expenditure incurred by the assessee towards special power of attorney from Indian Consulate in USA air tickets hotel accommodation receipts postal charges receipts conveyance charges lawyer fees photocopying expenses are also allowable expenditure and the AO will consider the same and delete the addition so made. Assessee appeal allowed.

Summary

Issues:
The case involves the final assessment order passed under section 147 r.w.s. 144C(13) of the Income Tax Act, 1961 for the assessment year 2014-15. The main issue revolves around the allowability of transfer expenses claimed by the assessee in connection with the sale of immovable property during the financial year 2013-14.

Summary:
The assessee claimed transfer expenses totaling Rs. 2,81,425, including various costs such as obtaining special power of attorney, air tickets, hotel accommodation, postal charges, conveyance charges, lawyer fees, and photocopying expenses. The Assessing Officer allowed only Rs. 46,000 of these expenses and disallowed the rest. The assessee contended that all expenses related to the transfer should be allowed based on a decision of the Bombay High Court.

The Dispute Resolution Panel (DRP) held that the expenses were merely incidental to the sale transaction and not wholly and exclusively for the transfer of property, thus disallowing the claimed amount. The assessee appealed, arguing that the expenses were necessary for the transfer and should be allowed. The DRP, however, relied on section 48 of the Act to support its decision that certain expenses cannot be capitalized for computing the cost of acquisition.

Upon review, the Tribunal found that the expenses incurred by the assessee, a non-resident individual, were essential for effecting the transfer of the property. Citing the decision of the Bombay High Court, the Tribunal concluded that any payment necessary to effect the transfer should be considered an allowable expenditure under section 48(i) of the Act. Therefore, the Tribunal held that the expenses towards special power of attorney, air tickets, accommodation, postal charges, conveyance, lawyer fees, and photocopying were allowable and directed the Assessing Officer to delete the addition made.

In conclusion, the Tribunal allowed the appeal of the assessee, emphasizing that the incurred expenses were directly related to the transfer of the property and should be considered allowable under section 48(i) of the Income Tax Act, 1961.