Income Tax Appellate Tribunal - Chennai
Digivision Electronics Ltd., Chennai vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL
Bench 'B' Chennai
Before Shri N.S. Saini, AM and
Shri George Mathan, J.M
I.T.A. No. 1379/Mds/2010
Assessment Year 2003-04
M/s Digivision Electronics Ltd Vs. The A.C.I.T
4, Morrison Fourth Street Company Circle 1(4)
Alandur Chennai
Chennai 600 016
(PAN No. AAACD 2691 K)
I.T.A. No. 1929/Mds/2010
Assessment Year 2003-04
The A.C.I.T Vs. M/s Digivision Electronics Ltd
Company Circle 1(4) 4, Morrison Fourth Street
Chennai Alandur
Chennai 600 016
(PAN No. AAACD 2691 K)
(Appellant) (Respondent)
Assessee by : Shri S. Sridhar
Department by : Shri Avinash K. Sahay
ORDER
Per N.S. SAINI, AM:-
These are cross appeals filed by the assessee and Revenue directed against the order of the ld. CIT(A)-III, Chennai dated 06.08.2010 pertaining to Assessment Year 2003-04. Page 2 of 25
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2. In the assessee's appeal, the assessee has taken 12 grounds of appeal. At the time of hearing, the ld. A.R. of the assessee submitted that he will be arguing Grounds Nos. 2, 6 and 11 of the appeal. Hence, the other grounds of appeal are dismissed for want of prosecution.
3. Ground No. 2 of the appeal of the assessee reads as under:
"The ld. CIT(A) erred in confirming the validity of the reassessment on the facts and in the circumstances of the case without assigning proper reasons and justification."
4. The ld. CIT(A) has decided this issue as under:
"The first issue pertains to validity of jurisdiction u/s 147 of the Act. The appellant submitted that the reopening was not valid since there was no escapement of income and the computation of long term capital gain was correct and proper. It was also submitted that the reopening was on account of change of opinion based on audit objection and therefore, not valid. The Id. AR also contended that there was no failure on the part of the appellant to disclose fully and truly all material facts necessary for assessment and Page 3 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 therefore, the reopening was beyond jurisdiction. Reliance was placed on the decisions reported in 100 ITR 285 and 8 SOT
242. 4.1 I have carefully considered the facts pertaining to the case and the submissions made by the Id. AR. I have also gone through the decisions relied on by the Id. AR. In this case processing u/s 143(1) was done but no assessment u/s 143(3) was made. Thereafter; notice u/s 148 has been issued within 4 years .from the end of the subject assessment year. On similar fact situation, the Hon'ble Supreme Court in Rajesh Jhaveri Stock Brokers Pvt. Ltd, 291 ITR 500 (SC) has held that proceedings initiated u/s 147 are valid. As intimation u/s 143(1)(a) is not an "assessment", there is no question of treating reassessment in such a case as based on change of opinion. The claim of deduction u/s 48 of the one time settlement paid (OTS) paid to the bank, claim of expenses in respect of abandoned project and set off' of brought forward losses constitute tangible material to reopen the assessment. The Hon'ble Supreme Court in the case of CIT v. Kelvinator India Ltd, 320 ITR 561 (SC) has held that the AO has no power to review but he can reassess the income. Since no order had been passed, there is no question of reviewing it. It was only reassessment of income. Further, in the case of Sun Engineering Works Pvt. Ltd 198 ITR 297 (SC), the Hon'ble Supreme Court has held that reassessment proceedings are for the benefit of Page 4 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 revenue and are aimed at gathering the escaped income. In view of the factual position and authoritative pronouncements, I am of the considered opinion that the reopening has been validly initiated. This ground of appeal is accordingly dismissed."
5. At the time of hearing, the ld. counsel for the assessee submitted that he is not interested in agitating this ground of appeal seriously and no specific submission was made by the ld. A.R. in respect of this ground of appeal. Therefore, this ground of appeal is dismissed for lack of prosecution.
6. Ground No. 6 of the appeal reads as under:
"The ld. CIT(A) erred in sustaining the rejection of the claim of expenses to the extent of Rs. 1,62,75,000/- incurred in connection with the transfer of the asset in the computation of long term capital gains without assigning proper reasons and justification."Page 5 of 25
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7. The brief facts of the case are that the assessee claimed expenses of Rs. 1,62,75,000/- in computing long term capital gains which included Rs. 20 lakhs towards reimbursement of various expenses incurred by Mahindra Gesco under "Project Services Agreement" dated 20.1.1997 which was terminated by mutual agreement on 31.3.2002. The other component of Rs. 1,42,75,000/- was reimbursement of interest to Mahindra Gesco. The interest was on the advance of Rs. 1 crore received by the assessee from Mahindra Gesco on 16.6.1997. The Assessing Officer disallowed the said sums on the ground that they were paid under the project service agreement which had been terminated by the assessee on mutual consent with the developer and therefore, the said sums were expenditure incurred for an abandoned project which could not be allowed in computing the capital gains. The Assessing Officer relied on the decision of the Hon'ble Calcutta High Court in the case of Kanoria Chemicals and Industries Ltd. Vs CIT 78 Taxmann 455.
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8. Before the ld. CIT(A), the assessee contended that the said expenditure should be construed as an expenditure in connection with transfer of property and relying on the decision of the Hon'ble Madras High Court in the case of CIT Vs. Bradford Trading Company P. Ltd. reported in 261 ITR 222 [Mad] submitted that cost of removing an encumbrance is a deductible cost unless it is self created.
9. The ld. CIT(A), after considering the submissions, held as under:
"6.1 I have considered the facts of the above and the submissions made by the Id. AR. I am unable to· agree with the contentions of the Id. AR that the above expenditure should be construed as an' expenditure incurred in connection with the transfer of the property. The amount represents expenditure incurred for a project which never took place and had been abandoned by mutual consent of the parties. The "project service agreement" dated 20·1·97 was terminated by mutual agreement with effect from 31.3.2002. On the other hand, agreement for sale took place on 27·03·2003. Thus, there was no encumbrance as on the date of Page 7 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 sale. The deduction permissible u/s 48 are only the cost of acquisition of the capital asset or cost of improvement thereto or expenditure incurred wholly and exclusively in connection with the transfer of the asset. By no stretch of imagination the above expenses incurred can be considered as falling under any of these categories. The AO has rightly held that it was a capital expenditure incurred towards an abandoned project and hence not allowable as a deduction u/s 48 for the purpose of capital gain. Therefore, this ground of appeal is dismissed."
10. The ld. A.R. reiterated the submissions made before the lower authorities whereas the ld. D.R. relied on the decision of the Hon'ble Supreme Court in the case of V.S. Malhotra Vs. CIT reported in 227 ITR 240 [SC] wherein it was held as under:
"In the instant case, the mortgage was created by the assessee himself. It is not a case where the property had been mortgaged by the previous owner and the assessee had acquired only the mortgagor's interest in the property mortgaged and by clearing the same he had acquired the interest of the mortgagee in the said property. The questions Page 8 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 raised by the assessee in the application submitted u/s 256(2) of the Act do not, therefore, raise any arguable question of law and the said application was rightly rejected by the High Court."
11. He also relied on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Alladi N Rao reported in 252 ITR 880 [SC] wherein it was held as under:
"What was sold by the State at the auction was the immovable property that belonged to the assessee. The price that was realized therefore, belonged to the assessee. From out of that price, the State deducted the dues towards 'Kist' and interest due from the assessee and paid over the balance to him. The capital gain that the assessee made was on the immovable property that belonged to him. Therefore, it is on the full price realized [less admitted deductions] that the capital gain and the tax thereon has to be computed."Page 9 of 25
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12. The ld. CIT(A) thus held that since the encumbrance was created by the assessee in the instant case, therefore, no deduction of the cost for removing can be allowed as deduction to the assessee.
13. We have heard the rival submissions and perused the orders of the lower authorities and the material available on record. The undisputed facts are that the assessee sold a plot of land situated at Lattice Bridge Road, Chennai and computed long term capital gains thereon. The assessee inter alia claimed deduction for Rs. 1,62,75,000/- which was disallowed in the assessment by the Assessing Officer. The said amount of Rs. 1,62,75,000/- was comprised of two components, namely, Rs. 1,42,75,000/- towards interest on advance received and Rs. 20 lakhs against reimbursement of expenses. The assessee entered into an agreement with Mahindra Gesco to develop the land in question by building a residential cum commercial project thereon. Agreement was entered into on 20.1.1997. The assessee received Rs. 1 crore as advance under the said agreement. Rs. 1,42,75,000/- represents interest on the above advance for the period of receipt of advance Page 10 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 to the date of sale of land. Rs. 20 lakhs represents assessee's share of expenses in respect of the said project. However, the project agreed on 20.1.1997 could not take off and ultimately the assessee sold the land in question to Mahindra Gesco. According to the Assessing Officer, the aforesaid expenditure of Rs. 1,62,75,000/- is not allowable u/s 48 of the At and therefore, disallowed the same for computing long term capital gains.
14. On appeal, the ld. CIT(A) confirmed the action of the Assessing Officer.
15. Before us, the ld. A.R. of the assessee contended that because of the above agreement, an encumbrance was created on the land in question and therefore, to clear that encumbrance, the expenditure in question was incurred by the assessee and therefore, ought to have been allowed u/s 48 of the Act.
16. We find that the expenditure in question of Rs. 1,62,75,000/- has no connection with the acquisition of land in question. The aforesaid loss was incurred because of undertaking a housing Page 11 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 project which did not materialize. In the present case, we are not concerned with the question whether the said expenditure of Rs. 1,62,75,000/- can be allowed as business loss to the assessee or not. We are required to adjudicate whether the same can be allowed as deduction u/s 48 or not for computing capital gains in the hands of the assessee.
17. We find that even assuming an encumbrance was created on the land, then also, as the said encumbrance was created by the assessee itself after acquiring the land, therefore, the amount incurred for acquiring that encumbrance cannot be allowed as deduction for computing capital gains. It is not the case of the assessee that the advance of Rs. 1 crore received by the assessee was utilized for acquiring or developing land in question. Therefore, in our considered opinion, interest of Rs. 1,42,75,000/- cannot be allowed as deduction for computing capital gains arising out of sale of land in question. Similarly, in respect of expenditure of Rs. 20 lakhs, we find that no material was brought before us to show that the said expenditure was incurred for making any development of the land in question. In the circumstances, we find Page 12 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 no error in the orders of the lower authorities in not allowing deduction of Rs. 1,62,75,000/- while computing capital gains. We, therefore, dismiss this ground of appeal of the assessee.
18. Ground No. 11 of the appeal reads as under:
"The ld. CIT(A) erred in sustaining the rejection of set off of losses pertaining to the Assessment Year 1999-2000 on the facts and in the circumstances of the case without assigning proper reasons and justification."
19. Brief facts of the case are that the ld. CIT(A) observed that the Assessing Officer has not allowed set off of losses pertaining to Assessment Year 1999-2000 since the return was belatedly filed for the above Assessment Year. The ld. CIT(A) has further observed that the ld. A.R. contended that the return had been handed over to the post office before the due date of filing and hence should not be considered as a belated return.
Page 13 of 25
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20. The ld. CIT(A), after considering the submissions of the ld. A.R., held that the ld. A.R. has fairly admitted that the appeal on the above issue for Assessment Year 1999-2000 was dismissed by the ld. CIT(A) and the jurisdictional Tribunal and the mater was pending before the High Court hence he dismissed this ground of appeal.
21. The ld. A.R. submitted that the matter should be restored to the file of the Assessing Officer for adjudicating the issue afresh in light of the decision to be taken by the Hon'ble Madras High Court.
22. The ld. D.R. on the other hand relied on the order of the lower authorities.
23. We have heard the rival submissions and perused the orders of the lower authorities and the material available on record. No error could be pointed out by the ld. A.R. in the order of the ld. CIT(A). The only plea of the ld. A.R. of the assessee is that the issue be restored to the file of the Assessing Officer to give effect to the order passed by the Hon'ble High Court. In our considered opinion, Hon'ble High Court's order is binding on every authority Page 14 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 functioning under the jurisdiction of the High Court. Therefore, no direction is required to be given by the Tribunal for following the decision of the High Court separately. The ld. A.R. of the assessee could not bring any material to show that the decision of the Tribunal as stated in the order of the ld. CIT(A) in the case of the assessee passed for Assessment Year 1999-2000 has been varied by the High Court till date. Therefore, we do not find any good reason to interfere with the order of the ld. CIT(A). Hence this ground of appeal of the assessee is dismissed.
24. In the result, the appeal of the assessee is dismissed.
25. In the Revenue's appeal, the sole ground of appeal taken by the Revenue is that the ld. CIT(A) erred in allowing the assessee's claim for deduction of Rs. 3.75 crores u/s 48 while computing capital gains.
26. The brief facts of the case are that the M/s Hivelm Industries Ltd [HIL] was amalgamated with the assessee company by the order of High Court of Madras on 2.5.1986. The appointed date was fixed Page 15 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 as 17.6.1985. HIL had acquired a property at Lattice Bridge Road, Chennai in 1961. M/s HIL on security of the said property had borrowed money from State Bank of India by depositing the title deeds. The above property subsequently became the property of the appellant consequent to the amalgamation of HIL with the assessee company pursuant to a scheme of amalgamation approved by the Hon'ble Madras High Court. During 1988, the loan facilities availed by HIL was taken over from State Bank of India by Indian Bank. The loan from India Bank was cleared under OTS at the time of sale of the property, which was claimed as deduction from the sale proceeds for the purpose of computation of long term capital gains. The buyer paid the OTS amount directly to the bank and only the remaining part of the consideration was paid to the assessee. The Assessing Officer did not allow deduction in respect of the said OTS amount on the ground that it was a self created charge and was not pre-existing liability which alone could be allowed as a deduction u/s 48 of the Act. In coming to this conclusion, the Assessing Officer was of the opinion that encumbrance was not existing at the time of acquisition of the property in 1961 but was created subsequently. The Assessing Officer referred to the Page 16 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 provisions of section 49(1) of the Act and held that if the property is transferred by amalgamation, the cost to the previous owner is to be taken. When such cost is taken unless there is a subsisting charge on the date of acquisition of property, no amount can be deducted in computing the capital gains. The Assessing Officer also observed that there was difference between succession, inheritance etc and amalgamation since in the first category the previous owner ceases to exist whereas in the latter case the previous owner continues to exist. The Assessing Officer came to this conclusion since the transfer of the property to amalgamated company was without transfer of title by was of registration. The Assessing Officer observed that the since at the time of amalgamation it was not a transfer as per section 47(vi) of the Act, no capital gain tax was paid. The assessee cannot again claim the benefit of deduction of encumbrance by the amalgamated company. The Assessing Officer has also stated that since the amalgamation is not a transfer, the benefit of indexation from the year of purchase is made available. The Assessing Officer relied on the decision in the case of CIT Vs. Alladi N. Rao 252 ITR 880 [SC] and L.M. Devare, Official Liquidator of Bank of Karad Vs. CIT 234 ITR 813 [Bom]. Page 17 of 25
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27. On the above reasoning, the Assessing Officer concluded that the payment of Rs. 3.75 crores to Indian bank under OTS was neither cost of acquisition nor expenditure in connection with transfer and therefore, could not be allowed as deduction in computing the capital gains.
28. On appeal before the ld. CIT(A), the assessee submitted that the reference to the provisions of section 49(1) of the Act by the Assessing Officer is misleading as well as the said provisions are quoted out of context. The said provision envisages only the ascertainment of cost of acquisition under certain circumstances and hence the claim for deduction of payment of OTS from sale consideration to arrive at assessable capital gains was perfectly in order and the said payment should be construed as another component of the cost to the assessee in the succession to the property allowable in the computation of capital gains.
29. The ld. CIT(A) after considering the submissions held as under: Page 18 of 25
I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 "I have carefully considered the facts of the case and the submissions made by the ld. A.R. I have also gone through the decisions relied upon by the Assessing Officer and the ld. A.R. I have also perused the scheme of amalgamation and the other documents submitted by the appellant. In my considered opinion, the impugned amount is a pre-existing liability that has been taken over by the appellant consequent to the amalgamation which was approved by the Hon'ble High Court of Madras. As evident from the scheme of amalgamation, the appellant had taken over both the assets and the liabilities. Therefore, the contention of the AO that the liabilities cannot be treated as pre-existing is not supported by the facts of the case. The loan had been taken by HIL prior to the amalgamation and was existing as on the date of amalgamation. Unless the said liability is discharged the appellant would not be able to sell the property. I am also not in agreement with the contention of the AO that the previous owner continues to exists in amalgamation: As per cIause 8 of the Scheme of Merger, "on the scheme becoming effective the transferor company (HIL) shall 'be dissolved without winding up". This clearly indicates that the transferor company ceases to exist once the scheme is approved by the High Court. Similarly, there is no force in the contention of the AO that because the transfer of property is without transfer of title by way of registration, the liability taken over is not a pre·existing charge. Once the Page 19 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 scheme of amalgamation is approved by the Hon'ble High Court, all the rights and properties stand vested in the hands of the amalgamated company and no registration is required for such transfers. Further, the other observations of the AO regarding capital gains at the time of amalgamation and change in the character of the asset have no bearing on the subject issue under adjudication. I also find that the Hon'ble Supreme Court in the case of in the case of V.S.M.R. Jagadishchandaran (Deed) v. CIT, 227 ITR 240 had held as under:
Held, dismissing the appeal, that in RM.Arunachalam v. CIT [1997] 227 ITR 222 (SC), the correctness of the view of the Kerala High Court in Ambat Echukuty Menon v. CIT [1978] 111 ITR 880 had been examined by the Supreme Court, and it had been held therein that the said decision did not lay down the correct law in so far as it held that where the previous owner had mortgaged the property during his lifetime the clearing off of the mortgage debt by his successor could neither be treated as "cost of acquisition"
nor as "cost of improvement" made by the' assessee. It has been held that where a mortgage was created by the previous owner during his lifetime and the same was Subsisting on the date Page 20 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 of his death, the successor obtained only the mortgagor's interest in the property and by discharging the mortgage debt he acquired the mortgagee's interest in the property and, therefore, the amount paid to clear off the mortgage was the cost of acquisition of the mortgagee's interest in the property which was deductible as cost of acquisition under section 48 of the Act."
30. The ld. D.R. relied on the order of the Assessing Officer whereas the ld. A.R. supported the order of the ld. CIT(A).
31. We have heard the rival submissions and perused the orders of the lower authorities and the material available on record. The Assessing Officer, while computing capital gains on sale of land situated at Lattice Bridge, Chennai, disallowed the deduction of Rs. 3.75 crores claimed by the assessee. Deduction of Rs. 3.75 crores claimed by the assessee represents the amount paid to Indian Bank under OTS.
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32. On appeal, the ld. CIT(A) deleted the disallowance by observing as under:
"I have carefully considered the facts of the case and the submissions made by the ld. A.R. I have also gone through the decisions relied upon by the Assessing Officer and the ld. A.R. I have also perused the scheme of amalgamation and the other documents submitted by the appellant. In my considered opinion, the impugned amount is a pre-existing liability that has been taken over by the appellant consequent to the amalgamation which was approved by the Hon'ble High Court of Madras. As evident from the scheme of amalgamation, the appellant had taken over both the assets and the liabilities. Therefore, the contention of the AO that the liabilities cannot be treated as pre-existing is not supported by the facts of the case. The loan had been taken by HIL prior to the amalgamation and was existing as on the date of amalgamation. Unless the said liability is discharged the appellant would not be able to sell the property. I am also not in agreement with the contention of the AO that the previous owner continues to exists in amalgamation: As per cIause 8 of the Scheme of Merger, "on the scheme becoming effective the transferor company (HIL) shall 'be dissolved without winding up". This clearly indicates that the transferor company ceases to exist once the scheme is Page 22 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 approved by the High Court. Similarly, there is no force in the contention of the AO that because the transfer of property is without transfer of title by way of registration, the liability taken over is not a pre·existing charge. Once the scheme of amalgamation is approved by the Hon'ble High Court, all the rights and properties stand vested in the hands of the amalgamated company and no registration is required for such transfers. Further, the other observations of the AO regarding capital gains at the time of amalgamation and change in the character of the asset have no bearing on the subject issue under adjudication. I also find that the Hon'ble Supreme Court in the case of in the case of V.S.M.R. Jagadishchandaran (Deed) v. CIT, 227 ITR 240 had held as under:
Held, dismissing the appeal, that in RM.Arunachalam v. CIT [1997] 227 ITR 222 (SC), the correctness of the view of the Kerala High Court in Ambat Echukuty Menon v. CIT [1978] 111 ITR 880 had been examined by the Supreme Court, and it had been held therein that the said decision did not lay down the correct law in so far as it held that where the previous owner had mortgaged the property during his lifetime the clearing off of the mortgage debt by his successor could neither be treated as "cost of acquisition"Page 23 of 25
I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 nor as "cost of improvement" made by the' assessee. It has been held that where a mortgage was created by the previous owner during his lifetime and the same was Subsisting on the date of his death, the successor obtained only the mortgagor's interest in the property and by discharging the mortgage debt he acquired the mortgagee's interest in the property and, therefore, the amount paid to clear off the mortgage was the cost of acquisition of the mortgagee's interest in the property which was deductible as cost of acquisition under section 48 of the Act."
33. The ld. D.R. could not point out any error in the order of the ld. CIT(A).
34. We find that it is not in dispute that the assessee company became the owner of land in question in pursuance to the amalgamation of HIL with the assessee company. Further, it is also not in dispute that before such amalgamation, the land in question was mortgaged with the State Bank of India. Thus, the assessee acquired only mortgagee's interest in the land at the time of Page 24 of 25 I.T.A. No 1379/Mds/2010 ITA No.1929/Mds/2010 amalgamation. Therefore, the amount paid to the Indian Bank to acquire mortgagee's interest in the land constitutes cost of improvement of land.
35. We find that in the instant case we are not required to adjudicate what was the original cost of the land which was acquired by the assessee and the same is not in dispute before us. We are only required to adjudicate whether the amount paid under OTS to Indian Bank to clear the encumbrance which was on the land on the date on which the assessee acquired ownership of the land will be allowed as deduction while computing capital gains or not. On the above issue, we find that the decision of the ld. CIT(A) is squarely covered by the decision of the Hon'ble Supreme Court in the case of VSMR Jagdishchandran [Decd] Vs. CIT 227 ITR 240 [SC]. We, therefore, do not find any good reason to interfere with the order of the ld. CIT(A). It is confirmed. The ground of appeal of the Revenue is dismissed.
36. In the result, the appeal of the Revenue is dismissed. Page 25 of 25
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37. To sum up, in the result, the appeal of the assessee as well as the appeal of the Revenue both are dismissed.
Order pronounced in the court on 9th September, 2011.
Sd/- Sd/-
(George Mathan) (N.S. SAINI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Chennai,
Dated the 9th September, 2011.
VL
Copy to: Assessee/AO/CIT (A)/CIT/D.R./Guard file