ITO 27 (1)(4), MUMBAI vs. BHAVESHWAR VILAS CHS LTD., MUMBAI

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ITA 7156/MUM/2019Status: DisposedITAT Mumbai23 February 2022AY 2014-156 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that capital gains are chargeable only in the hands of the person who transfers their capital asset. Since the society did not own the flats and had not transferred any property, the capital gain was not taxable in its hands.

What were the facts?

A cooperative housing society entered into a development agreement with a builder for redevelopment of its property. The Assessing Officer treated the capital gain arising from the transaction as taxable in the hands of the society, while the society contended that the ownership of flats rests with its members.

What were the issues?

Whether capital gains arising from the redevelopment of a housing society's property are taxable in the hands of the society or its individual members. Applicability of Section 50C in such transactions.

Which sections of the Income-tax Act were involved?

Section 50C

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

For Appellant: Shri Bharat Kumar, AR
For Respondent: Shri C.T. Mathews, DR
Hearing: 21.02.2022Pronounced: 23.02.2022
1.

This appeal is filed by the Income Tax Officer-27(1)(4), Mumbai (the learned Assessing Officer) for Assessment Year 2014-15 against the order passed by the Commissioner of income-tax (Appeals)-14, Mumbai [the learned CIT(A)] dated 20th August, 2019 raising following grounds:-

“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the capital gain in the hands of assessee being a society

2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the provisions of section 50C is applicable in the individual hands of the members of the society without appreciating the fact that the stamp duty of Rs.21,08,550/- is paid to enter the transaction by the society.

3. The appellant prays that the order of the CIT(A) on the above grounds be reversed and that of the Assessing Officer be restored.”

2.

The brief fact of the case shows that the assessee is a co- operative Housing Society and derives income from interest. The assessee filed its return of income on 30th September, 2015 declaring Nil income. The case of the assessee was picked up for scrutiny as limited scrutiny case for verification of sale consideration of the property in ITR which is less than the sale consideration of reported in AIR. The learned Assessing Officer questioned the assessee and assessee submitted a registered deed of development agreement between the assessee and Tridhatu Bhaveshwar Developers LLP. The Assessing

3.

The assessee preferred the appeal before the learned Commissioner of income-tax (Appeals). He noted that appellant society is formed only for the benefit of maintenance of the apartment consisting of 18 flats belonging to 13 members. The society along with its

4.

The learned Departmental Representative supported the orders of the learned Assessing Officer. The learned Authorised Representative supported the order of the learned Commissioner of income-tax (Appeals).

5.

We have carefully considered the rival contentions and perused the orders of the lower authorities. The fact clearly shows that assessee is a co-operative Housing Society, which is formed by the flat owners. The building

6.

In the result, the appeal filed by the learned Assessing Officer is dismissed.

Order pronounced in the open court on 23.02.2022.

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