Facts of the Case

The assessee had purchased certain properties situated in Village Kapashera between 08.02.2005 and 25.08.2005 at an aggregate purchase consideration of ₹1,06,58,000. These lands were subsequently sold to A.B. Tower Private Limited for ₹18 crores through a registered sale deed dated 04.09.2006.

During the financial year ending 31.03.2006, the assessee received an advance of ₹5 crores in respect of the proposed transaction. The Assessing Officer treated the receipt of advance as finalization of the sale transaction and brought the entire consideration amount to tax in Assessment Year 2006–07 after reducing the cost of acquisition.

Accordingly, the Assessing Officer made an addition of ₹16,93,42,000.

In a separate issue, land purchased during 1994–96 had consistently been shown as a fixed asset in the books of the assessee and had also been used for agricultural purposes. Two portions of that land were sold during the relevant year and the assessee offered income arising from the sale under the head “Long-Term Capital Gains” amounting to ₹3,07,82,342. However, the Assessing Officer treated such gain as business income.

The Commissioner of Income Tax (Appeals) deleted both additions and the ITAT affirmed the deletion.

 

Issues Involved

  1. Whether advance received for sale of land can be subjected to tax in the assessment year in which only advance was received and no sale transaction was completed?
  2. Whether profits arising from sale of land held by the assessee should be assessed as “Profits and Gains from Business or Profession” or as “Capital Gains”?

 

Petitioner’s Arguments (Revenue)

The Revenue contended that:

  • Receipt of ₹5 crores as advance effectively finalized the transaction and therefore the entire sale consideration of ₹18 crores became taxable during the relevant assessment year.
  • The assessee was involved in activities relating to purchase and sale of land and therefore profit earned on sale of land should be treated as business income instead of capital gains.
  • The Assessing Officer rightly assessed the additions under the head “profits and gains of business or profession”.

 

Respondent’s Arguments (Assessee)

The assessee argued that:

  • Mere receipt of advance did not amount to transfer of property.
  • No agreement to sell had been executed during the relevant year and possession had also not been handed over.
  • The actual sale transaction took place only through a registered sale deed dated 04.09.2006 in the subsequent assessment year.
  • The land sold in the second issue had been consistently reflected as a fixed asset and was held as an investment for a substantial period.
  • Since the land was held as an investment asset, gain arising from its sale was correctly offered as long-term capital gains.

 

Court Findings / Order

The Delhi High Court upheld the order of the Tribunal and dismissed the Revenue's appeal.

On taxability of advance received

The Court observed that there was no evidence demonstrating completion of the transaction during the relevant year.

The Court noted:

  • No agreement to sell existed during the year under consideration.
  • Possession of property had not been transferred.
  • The only document evidencing transfer was the sale deed executed in the succeeding year.
  • The amount received was merely an advance payment.

The Court therefore held that no transfer had taken place during the assessment year and consequently no income could be taxed in that year.

On business income versus capital gains

The Court further observed:

  • An assessee may simultaneously hold some properties as trading assets and others as investment assets.
  • The land had been shown in the balance sheet as a fixed asset.
  • It had been held for a long duration since 1994–96.
  • The land had also been used for agricultural purposes.
  • No borrowed funds had been used for acquisition.

Considering these factors, the Court held that the land constituted a capital asset and income arising from sale thereof was taxable under the head "Capital Gains" and not as business income.

No substantial question of law arose for consideration and the appeal was dismissed.

 

Important Clarification

This judgment clarifies that:

  • Mere receipt of advance against sale consideration does not amount to transfer of property for tax purposes.
  • For applicability of Section 2(47)(v) read with Section 53A of the Transfer of Property Act, twin conditions must be satisfied:
    • Execution of a written agreement.
    • Handing over of possession.
  • Both conditions are required to exist cumulatively.
  • A taxpayer may simultaneously act as a trader and investor in land depending upon the nature of holding and intention regarding the asset.

 

Sections Involved

Income Tax Act, 1961

  • Section 2(47)(v) – Transfer of Capital Asset
  • Section 45 – Capital Gains
  • Section 260A – Appeal before High Court
  • Profits and Gains of Business or Profession provisions

Transfer of Property Act, 1882

  • Section 53A – Doctrine of Part Performance


Link to download the order -
https://delhihighcourt.nic.in/app/case_number_pdf/2013:DHC:1255-DB/BDA07032013ITA5692012.pdf

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