Bookmarks   Feedback   Annual Subscription   New User   Login  
Tax Management India .com   
   TMI - Tax Management India. Com   
Whether vessels/ships that are afloat are not goods and immovable property? - CESTAT says Yes - What about GST on supply of floating ship?    *    Services provided to the Govt/ local authority with regard to water supply - exemption will include activity of construction of tube wells    *    determination of assessable value for job work transaction    *    Union Finance Minister Shri Arun Jaitley to inaugurate the Conference on “International Arbitration in BRICS: Challenges, Opportunities and Road ahead” on August 27, 2016 in the national capital;    *    Where supply of goods without transfer to title has to be treated as service, whether on importation of such services, customs duty and GST would be levied simultaneously?    *    TAXABLE EVENT UNDER GST    *    ABCD of MSME Credit (Shri S. S. Mundra, Deputy Governor – August 23, 2016 – at the 2nd CII National Conference on MSME Funding held in New Delhi)    *    RBI Reference Rate for US $    *    Government Approves Seven (7) Proposals of Foreign Direct Investment (FDI)    *    Cenvat Credit - It is neither possible nor practical for any service recipient to verify the fact of payment of service tax by the service provider. Remedy of the Revenue lies at the hands of the service provider and not at the hands of the service recipient. - Tri    *    Levy of penalty - the assesse's stand that they were under a bonafide belief that no tax liability would fall upon them as the same stands discharged by the sub-contractor is required to be appreciated in which case, the provisions of section 80 of the Finance Act, 1994 would get invoked – no penalty - Tri    *    Cenvat credit - availed input services credit without payment of value of input service and service tax on such service to the provider of services - violation of Sub Rule (7) of Rule 4 of Cenvat Credit Rules 2004 - If payment is made later, credit will be eligible - however, interest liability to be computed, if any. - Tri    *    Classification of soyabean oil – by-product in the course of manufacture of lecithin – classifiable under 15071000 as crude oil, whether or not degummed - Tri    *    Continuance of registration under section 12A denied - if it is found that the assessee was accepting bogus donations, then that fact can only lead to an inference that the activities of the trust are not genuine or are not carried out in accordance with the objects of the trust. - Tri    *    Exemption u/s 11 - charitable purpose u/s 2(15) - merely because profits have resulted from the activities of imparting education, it would not result in change of character of the education that it was solely for educational purpose. - Tri    *    Disallowance of loan processing charges and pre-payment charges paid to the bank - so long as the expenses incurred by the assessee are genuine and not part of any colorable device to make tax evasion, then such expenses should be allowed under the relevant provisions of the Act. - Tri    *    Penalty u/s 271B - threshold limit for getting its account audited u/s 44AB - Business activity or professional activity - gross receipts were only ₹ 42 lakhs - penalty quashed - Tri    *    ADDITIONAL DEPRECIATION UNDER SECTION 32(1) (iia) OF INCOME TAX ACT, 1961    *    Seeks to extend the levy of anti-dumping duty on imports of Caustic Soda, originating in, or exported from Chinese Taipei (imposed vide notification No.79/2011-Customs, dated the 23rd August, 2011) for a period of one year i.e. upto and inclusive of the 22nd August, 2017    *    Meaning and scope of supply under GST (Part 2) - Import of services will be treated as supply and will subject to GST under reverse charge.    *    Meaning and scope of supply under GST (Part 1) - Since CGST, SGST or IGST will be levied on supply of goods or services, it is important to understand this term first    *    service tax payament-reg
Home News Commentaries / Editorials Month 6 2009 2009 (6)
← Previous Next →

Whether extinguishment or transfer or surrender of tenancy / lease right is subject to Income Tax under the head Capital Gains

June 7, 2009
  • News

Earlier, the Calcutta High Court in A. Gasper Versus Commissioner Of Income-Tax, West Bengal [2009 TMI - 33754 - HC] has held that:

Transfer / extinguishment of leasehold / tenancy rights Section 45(1) of the Act is wholly silent as to the person from whom the consideration money for transferring a capital asset is to be received by the assessee. Moreover, it, inter alia, provides that any profits or gains arising from the transfer of a capital asset shall be chargeable to income-tax under the head " Capital gains ". Transfering the right of the assessee in the monthly tenancy under the landlords or his leasehold interest was extinguished and, therefore, it does not matter in the least that the aforesaid amount was not received from the landlords for the extinguishment of his aforesaid rights in the aforesaid capital asset, for, as already stated, s. 45(1) of the Act does not say from whom the consideration money is to be received for transfer of a capital asset and, further, s. 2(47) of the Act says that the word "transfer", in relation to a capital asset, includes "the extinguishment of any rights therein"

There were several other High Court decisions in which contradictory views have been expressed about taxability of extinguishment tenancy / lease rights.

Now, honorable Supreme Court has resolved the controversy and upheld that the transfer of tenancy rights is not subject to Income Tax.

See: Commissioner of Income-Tax Versus D. P. Sandu Bros. Chembur P. Ltd. [2008 -TMI - 6153 - SUPREME Court]

The facts of the Case:

The primary question involved in this appeal is whether the amount received by the respondent-assessee on surrender of tenancy rights is liable to capital gains tax under section 45 of the Income-tax Act, 1961. The assessment year in question is 1987-88. The lease agreement was entered into in 1959 for 50 years under which an annual rent was paid by the lessee to the lessor. The lease would have continued till 2009. During the relevant previous year, in March 1986, the respondent surrendered its tenancy right to its lessor prematurely. In consideration for such premature termination, the lessor paid the lessee a sum of Rs. 35 lakhs.

The Tribunal relied upon the decision of this court in CIT v. B.C. Srinivasa Setty [2008 -TMI - 5845 - SUPREME Court] as well as the amendment to section 55(2) of the Act in 1995 and held that the assessee did not incur any cost to acquire the leasehold rights and that if at all any cost had been incurred it was incapable of being ascertained. It was, therefore, held that since the capital gains could not be computed as envisaged in section 48 of the Income-tax Act, therefore capital gains earned by the assessee, if any, was not exigible to tax.

The Department preferred an appeal before the High Court. The High Court dismissed the appeal. Being aggrieved by the decision of the High Court, this further appeal has been preferred by the Department.

Decision of the Supreme Court:

There is no dispute that a tenancy right is a capital asset the surrender of which would attract section 45 so that the value received would be a capital receipt and assessable if at all only under item E of section 14. That being so, it cannot be treated as a casual or non-recurring receipt under section 10(3) and be subjected to tax under section 56. The argument of the appellant that even if the income cannot be chargeable under section 45, because of the inapplicability of the computation provided under section 48, it could still impose tax under the residuary head is thus unacceptable. If the income cannot be taxed under section 45, it cannot be taxed at all. (See S.G. Mercantile Corporation P. Ltd. v. CIT [2008 -TMI - 6329 - SUPREME Court])

Furthermore, it would be illogical and against the language of section 56 to hold that everything that is exempted from capital gains by the statute could be taxed as a casual or non-recurring receipt under section 10(3) read with section 56.

The appeal is accordingly dismissed without any order as to costs.



← Previous Next →
what is new what is new

Advanced Search

Latest Updates




More Options


|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map || ||

© [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version