SHANKARE GOWDA ,BENGALURU vs. INCOME TAX OFFICER, WARD-4(3)(3), BANGALORE

3.1 The AO completed the assessment proceedings u/s 143(3) r.w.s. 143(3A) & 143(3B) of the Act on a total income of Rs.17,58,58,380/- and accordingly total demand of Rs.1,04,17,303/- was raised.

5.1 With regard to disallowance of assessee’s claim of deduction on account of cost of improvement amounting to Rs.3,68,21,168/-, the ld. CIT(A)/NFAC observed that the case record reveal that the same is in respect of compensation paid to Shri H.D. Ramesh on cancellation of agreement to sale dated 18.12.2012. The assessee entered into an agreement to sale of immovable property with H D Ramesh for the total sale consideration of Rs.11,00,00,000/- and the assessee received an upfront advance amount of Rs.3,00,00,000/- against the said agreement. The first purchaser ShankareGowda, Bengaluru Rural Page 5 of 15 was intended to use the said land in the area for SEZ purposes but since the agreement was not viable and feasible as the land in the area is not available for SEZ unit, the said agreement dated 18.12.2012 was required to be cancelled and as per the agreement, if the seller is not completing his obligation, he was liable to pay compensation for an amount of Rs.6,00,00,000/- and hence the both the parties mutually agreed to cancel the agreement dated 18.12.2012 by entering into cancellation agreement dated 21.6.2017 and accordingly a sum of Rs.3,70,00,000/- was agreed to paid as compensation to the first purchaser which has been claimed by the assessee as cost of improvement in the revised return of income filed. The ld. CIT(A)/NFAC held that compensation of Rs.3,70,00,000/- said to have been paid by the assessee as compensation is not falling within the definition of cost of improvement. The assessee had not incurred any expenditure of capital nature in making additions or alterations to the capital asset. Therefore, the compensation paid could not improve or enhance the value of the asset. Further, the expenditure cannot be said to have been incurred wholly and exclusively in connection with the transfer which give rise to capital gain declared in the return of income filed but the same is in connection with the earlier transaction of transfer of property, which is separate and distinct from the transaction giving rise to capital gain declared. Further, the ld. CIT(A) noted that out of Rs.3,00,00,000/- the assessee has received only an amount of Rs.1,20,00,000/- on 13.12.2012 and the balance amount of Rs.1,80,00,000/- is received by other individuals and the assessee has brought no evidence on record like copy of bank statement to show that the assessee has actually received the amount. Further, the ld. CIT(A)/NFAC held that there is no clause in the said agreement to sale that the assessee shall pay to the purchaser compensation of Rs.3,70,00,000/- on cancellation of the said agreement. The ld. CIT(A)/NFAC is of the ShankareGowda, Bengaluru Rural Page 6 of 15 opinion that as per the cancellation agreement dated 21.6.2017, the assessee is said to have paid Rs.3,70,00,000/- towards penalty and therefore, since the amount of Rs.3,70,00,000/- paid by the assessee is in the nature of penalty, the same cannot be said to be an expenditure incurred wholly and exclusively in connection with the transfer. The assessee had also not filed any documentary evidence like copy of bank statement to establish on record that amount totaling Rs.14,63,56,465/- is paid to the first purchaser. Further, ld. CIT(A) noted that from the date of agreement to sale dated 18.12.2012 till 7.10.2016 assessee has received total advance of Rs.10,11,50,000/- from the first purchaser and thus the amount of Rs.3,70,00,000/- said to have been paid by the assessee to the purchaser is in the nature of interest/penalty on the amount of advance payment received and utilized by the assessee. Lastly, the ld. CIT(A)/NFAC held that it is also not the case of the assessee that compensation paid is on any dweller in order to evict them prior to the sale of land and accordingly held that the amount of compensation of Rs.3,70,00,000/- said to have been paid by the assessee on cancellation of first transaction of immovable property cannot be said to be expenditure incurred wholly and exclusively in connection with the transfer of immovable property within the meaning of provision u/s 48(i) or 48(ii) of the Act and therefore, the same is not an allowable deduction while computing taxable capital gain arising on account of subsequent sale of immovable property. The ld. CIT(A)/NFAC thus, partly allowed the appeal of the assessee.

ShankareGowda, Bengaluru Rural Page 8 of 15 9. The sole issue for consideration in this case is whether the compensation of Rs.3,70,00,000/- paid by the assessee to the first purchaser on account of cancellation of ‘agreement to sale’ amounts to cost of improvement of asset/expenditure incurred wholly & exclusively in connection with the transfer of capital asset ?

10.1 Further on going through the clause 7(c) of the agreement to sale dated 18.12.2012, we take a note of the fact that it was agreed between the parties that in the event the seller default to perform the obligations and other terms of the agreement or if the seller fails to prove his right, title and interest over the scheduled property or to deliver possession of the same or any kind ShankareGowda, Bengaluru Rural Page 9 of 15 of litigations, then the seller shall be liable to pay back the advance amount received by him along with the liquidated damages to the tune of double the advance amount received by him till the date of such notice by purchaser. Therefore the contention of the ld. CIT(A)/NFAC that there is no clause in the said ‘agreement to sale’ dated 18/12/2012 that the assessee shall pay to the purchaser compensation of Rs. 3,70,00,000/- on cancellation of said agreement is also not correct & devoid of merit. As mentioned above the clause 7(c) of the agreement to sale dated 18.12.2012, it was agreed between the parties that in the event the seller default to perform the obligations and other terms of the agreement or if the seller fails to prove his right, title and interest over the scheduled property or to deliver possession of the same or any kind of litigations, then the seller shall be liable to pay back the advance amount received by him along with the liquidated damages to the tune of double the advance amount received by him.

10.2 Further, on going through the deed of cancellation of agreement dated 21.6.2017, we also take a note of the fact that an amount of Rs.14,63,56,465/- was paid to Sri H. D. Ramesh (First buyer) which consist of Rs.10,11,50,000/- towards the advance amount received along with Rs.82,06,465/- towards the conversion charges paid by first purchaser and Rs.3,70,00,000/- towards the penalty for relinquishing all his rights and claims over the scheduled property. Further, it is agreed between the parties that the first party had paid the said amount to clear all the liens, charges and other encumbrances created in favour of the buyer. We are of the considered opinion that although in the agreement to sale dated 18/12/2012 it was agreed between the parties that in case default by the seller, the liquidated damages to the tune of double the advance amount received shall be paid to the purchaser, however by way of separate deed of cancellation of agreement dated ShankareGowda, Bengaluru Rural Page 10 of 15 21/06/2017, both the parties have agreed for the compensation of Rs. 3,70,00,000/- & there is no dispute about the quantum of compensation.

10.3 Now the Second contention of the ld. CIT(A)/NFAC is that the assessee has not filed any documentary evidence like copy of bank statement to establish on record that the amount totaling to Rs. 14,63,56,465/- is actually paid to the first purchaser as mentioned in the deed of cancellation of agreement. Before us, the assessee has filed the copy of the bank statements ( placed at Pages 55-60 of the paper book ) where we found that amount had actually been paid to said Sri H D Ramesh on various dates. Therefore, we are of the opinion that the authenticity of the payment of advances along with the compensation to the first purchaser is clearly established. The Revenue has also not brought on record any material or evidence to show that these amounts including the compensation had not been paid by the assessee. The compensation/penalty/liquidated damages of Rs.3,70,00,000/- was in fact paid in connection with the immovable property to clear all the liens, charges and encumbrances. We can also say that by paying the compensation to the first buyer the assessee has obtained a clear title to the property as the property was already agreed to be sold to the first purchaser & the entire consideration by way of Advance amounting to Rs. 10,11,50,000/- had already been received by the assessee.

10.3 Now coming to the other contentions of the ld. CIT(A)/NFAC that the said compensation paid by the assessee is in the nature of penalty and the same cannot be said to be an expenditure incurred wholly and exclusively in connection with the transfer. Further, the ld. CIT(A)/NFAC also contended that the assessee has received total advance of Rs. 10,11,5000/- from the ShankareGowda, Bengaluru Rural Page 11 of 15 first purchaser & thus the compensation paid of Rs. 3,70,00,000/- is in the nature of interest paid on the amount of advance payment received. We are of the considered opinion that the nature and character of the agreement, timing of the earlier agreement and payment claimed as expenditure and the date of transfer resulting in capital gains, are relevant aspects which should be taken into consideration & not the nature of the payment i.e. whether it is paid by way of penalty or interest for the Advances received or towards the liquidated damages/compensation. The fact remains the same that the compensation/Penalty/Interest/Liquidated damages or whatever name called are paid in connection with the immovable property which are ultimately transferred to the subsequent buyer with clear title resulting in capital gains to the assessee & therefore these are paid in connection with the immovable property to clear all the liens, charges and encumbrances.

10.4 Section 48 of the Act permits deduction against sale consideration in three situations. Firstly, towards the cost of acquisition; secondly on account of cost of improvement of the property and thirdly, on account of expenditure incurred wholly and exclusively in connection with the transfer of property. Admittedly Rs.3,70,00,000/- paid as a compensation was not a part of cost of acquisition. In the case of CIT v. V. Ramaswamy Mudaliar [1992] 196 ITR 939, the Hon’ble High Court of Madras held that the word 'improve' has various shades of meaning and it includes everything by doing which there is an enhancement in the value of the asset or there is a rise in its price or the asset is made to grow better or it is even followed up by something better. Therefore, we also do not agree with the contention of the ld. CIT(A)/NFAC that the compensation paid by the assessee is not falling within the definition of the cost of improvement as the assessee did not incurred any expenditure in making additions or modifications to ShankareGowda, Bengaluru Rural Page 12 of 15 the immovable property. We are of the considered opinion that as held by the Hon’ble High Court of Madras even if the asset is made to grow better or it is even followed up by something better is also considered to be improvement. Had the assessee not paid the compensation/ Liquidated damages as per the terms of the agreement to sale, the assessee would be able to transfer only the litigated property which would not have fetch that price which the assessee sold with clear title after clearing all his legal obligations related to that immovable property. We are of the considered opinion that the settlement of a claim and payment made amount to expenditure in connection with the immovable property & it enhance its value.

10.5 Further, as held by the Hon’ble High Court of Delhi in the case of Kaushalya Devi v. Commissioner of Income-tax reported in (2018) 404 ITR 136, the word "wholly" refers to the quantum of expenditure and the word "exclusively" refers to the motive, objective and purpose of the expenditure. These two words give jurisdiction to the taxing authority to decide whether the expenditure was incurred in connection with the transfer. We are also of the opinion that compensation/damages/penalty amounting to Rs.3,70,00,000/- have been incurred wholly and exclusively in connection with the transfer of immovable property with clear title. Further Hon’ble High Court of Delhi had observed that the expression "expenditure" used in clause (i) in Section 48 should be given the same meaning as used in Section 37 of the Act, except that expenditure may be also capital in nature. The words "wholly and exclusively" require and mandate that the expenditure should be genuine and the expression "in connection with the transfer" require and mandate that the expenditure should be connected and for the purpose of transfer. The settlement of a claim and payment "48. Mode of computation and deductions.—The income chargeable under the head „Capital gains' shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely: (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) the cost of acquisition of the capital asset and the cost of any improvement thereto." The provision states that the income chargeable under the head "capital gains" shall be computed on the basis of full consideration received or accruing as a result of transfer of capital asset after reducing expenditure incurred wholly or exclusively in connection with such transfer, cost of acquisition of the asset and cost of improvement of the asset. We are not required and need not examine other provisions of Section 48 for deciding the present controversy. The expression "expenditure" used in clause (i) in Section 48 should be given the same meaning as used in Section 37 of the Act, except that expenditure may be also capital in nature. Expenditure would primarily connote and has the meaning of spending or paying out. In a given case, it may also cover the amount of loss, which has gone out of the assessee's pocket. Settlement of a claim and payment made can amount to expenditure. Again the words "wholly and exclusively" used in Section 48 are also to be found in Section 37 of the Act and relate to the nature and character of the expenditure, which in the case of Section 48 must have connection i.e. proximate and perceptible nexus and link with the transfer resulting in income by way of capital gain. The word "wholly" refers to the quantum of expenditure and word "exclusively" refers to the motive, objective and purpose of the expenditure. These two words give jurisdiction to the taxing authority to decide whether the expenditure was incurred in connection with the transfer. The expression "wholly and exclusively" however, does not mean and indicate that there must exist a necessity or compulsion to incur an expense before an expenditure is to be allowed. Supreme Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. and Others, (2013) 1 SCC 641, had noticed and elucidated on dictionary meaning of the word "connection" in an Arbitration clause and had observed:- "145. The expression "connection" means a link or relationship between people or things or the people with whom one has contact [Concise Oxford Dictionary (Indian Edition)]. "Connection" means act of uniting; state of being united; a ShankareGowda, Bengaluru Rural Page 14 of 15 relative; relation between things one of which is bound up with (Law Lexicon, 2nd Edn., 1997). Thus, even the dictionary meaning of this expression is liberally worded. It implies expansion in its operation and effect both. Connection can be direct or remote but it should not be fanciful or marginal. In other words, there should be relevant connection between the dispute and the agreement by specific words or by necessary implication like reference to all other agreements in one (principal) agreement. The expression appearing in Clause 30 has to be given a meaningful interpretation particularly when the principal agreement itself, by specific words or by necessary implication, refers to all other agreements. …" Word "connection" in Section 48(i) reflects that there should be a causal connect and the expenditure incurred to be allowed as a deduction must be united or in the state of being united with the transfer resulting in income by way of capital gains on which tax has to be paid. The expenditure, therefore, should have direct concern and should not be remote or have indirect result or connect with the transfer. Practical and pragmatic view in the circumstances should be taken to tax the real income i.e. the gain. We have applied the said dictum while interpreting clause (i) of Section 48 of the Act…………..

“24. The words "wholly and exclusively" require and mandate that the expenditure should be genuine and the expression "in connection with the transfer" require and mandate that the expenditure should be connected and for the purpose of transfer. Expenditure, which is not genuine or sham, is not to be allowed as a deduction. This, however, does not mean that the authorities, Tribunal or the Court can go into the question of subjective commercial expediency or apply subjective standard of reasonableness to disallow the expenditure on the ground that it should not have been incurred or was unreasonably large. In the absence of any statutory provision, on these aspects discretion exercised by the assessee who has incurred the said expenditure must be respected, for interference on subjective basis will lead to unpalatable and absurd results. As in the case of Section 37 of the Act, jurisdiction of the authorities, Tribunal or Court is confined to investigate and decide as to whether the expenditure was actually incurred, i.e., the expenditure was genuine and was factually expended and paid to the third party. Secondly, the authorities, Tribunal and Court can examine whether the said expenditure was "wholly and exclusively" connected with the transfer, but once the amount was spent and paid, the authorities, Tribunal and Courts cannot decide commercial expediency by putting themselves in the arm chair of the assessee to examine and consider whether they would have or the assessee should have incurred the said expenditure including the quantum having regard to the circumstances. Excessive expenditure cannot be disallowed when it is "wholly and exclusively" in connection with the transfer, on the ground that prudence did not require the assessee to incur the expenditure. Disallowance on such grounds must be specified and provided by the statute.” 10.7 We respectfully taking guidance & support of the above observations of Hon’ble High Court of Delhi, held that the compensation paid by the assessee in respect of first agreement to sale can be said to be wholly and exclusively incurred in connection ShankareGowda, Bengaluru Rural Page 15 of 15 with the present transfer of the immovable property in which capital gain arises and accordingly we allow the grounds of appeal raised by the assessee.

Order pronounced in the open court on 22nd July, 2025