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Irfan Abdul Kader Fazlani vs. ACIT (ITAT Mumbai)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: January 22, 2013 (Date of publication)
AY:
FILE:
CITATION:

Click here to download the judgement (fazlani_50C_immovable_property_company.pdf)


S. 50C does not apply to transfer of immovable property held through company

The assessee held shares in a company called Kamala Mansion Pvt. Ltd. The company owned flats in a building known as Om Vikas Apartments, Walkeshwar Road, Mumbai. The shares were sold by the assessee for Rs. 37.51 lakhs and capital gains were offered on that basis. The AO & CIT(A) held that by the sale of shares in the company, the assessee had effectively transferred the immovable property belonging to the assessee and that it was an indirect way of transferring the immovable properties being the flats in the building. He accordingly ‘pierced the corporate veil‘, invoked s. 50C and computed the capital gains by adopting the stamp duty value of the flats. On appeal by the assessee to the Tribunal, HELD allowing the appeal:

S. 50C applies only to the transfer of a “capital asset, being land or building or both”, “assessed” by any authority of a State Government for stamp duty purposes. The expression “transfer” has to be a direct transfer as defined u/s 2(47) which does not include the tax planning adopted by the assessee. S. 50C is a deeming provisions and has to be interpreted strictly in accordance with the spirit of the provision. On facts, the subject matter of transfer is shares in a company and not land or building or both. The assessee did not have full ownership on the flats which are owned by the company. The transfer of shares was never a part of the assessment of the Stamp duty Authorities of the State Government. Also, the company was deriving income which was taxable under the head ‘income from property’ for more than a decade. Consequently, the action of the AO & CIT(A) to invoke s. 50C to the tax planning adopted by the assessee is not proper and does not have the sanction of the provisions of the Act.

5 comments on “Irfan Abdul Kader Fazlani vs. ACIT (ITAT Mumbai)
  1. correct view. After all every law has its own limits of jurisdiction. No law can cross as omnipotent. Yes Revenue is ok but revenues cannot over act and it will face problems, in judicial review.Revenue laws are amenable to review pls. Never ever over reach is the principle doctrine in any area of activity. Even governments cannot over reach as a whole how a department can try to over reach pls! it only shows how ignorentia legis is working!

  2. Every law is an independent identity, that no one can forget today as knowledge based world has taken over after 2010!

  3. Sanjeev Bindal says:

    Encouraging decision. Deeming provisions must have strict interpretation. However, who will ensure against some retrospective amendment?

  4. Nilesh chawda says:

    the recourse adopted by the D.R of relying on VODAFONE S.C’s decision is a dangerous trend and has been rightly nipped in the bud by the Hon. Tribunal

  5. V.RAMAKRISHNAN says:

    Parliament can retrospectively amend the law to do away with the decisions of ITAT and Judicial view. Such an interpretation is normally plugged by the CBDT by going to Parliament.

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