Kerala High Court Denies Relief To Petitioner Suppressing Facts, Orders Enquiry Into Allotment Of Govt Scheme Houses On Puramboke Land Candidate Missing Physical Test For Minor Illness Has No Enforceable Right To Rescheduling: Supreme Court Prolonged Incarceration And Parity Constitute Valid Grounds For Regular Bail: Supreme Court Accused In Cheque Bounce Cases Cannot File Evidence-In-Chief By Affidavit Under Section 145 NI Act: Orissa High Court Borrowers Have No Right To Personal Hearing Before Fraud Classification, But Full Forensic Audit Report Must Be Supplied: Supreme Court Pendency Of Matrimonial Dispute With General Allegations Not A Valid Ground To Deny Public Employment: Allahabad High Court Minimum Five Persons Mandatory To Prove 'Preparation For Dacoity' Under Section 399 IPC: Gujarat High Court Suit For Specific Performance Not Maintainable Without Prayer To Set Aside Termination Of Agreement: Madras High Court Trial Court Must Indicate Material Forming Basis Of Charge, Mechanical Framing Of Charges Impermissible: Madhya Pradesh High Court Voluntary Retirement Deemed Accepted If Positive Order Of Refusal Is Not Communicated Within Notice Period: Supreme Court Court Cannot Convict One Accused And Acquit Another On Same Evidence: Supreme Court Acquits Murder Convict Suspicion Cannot Replace Proof: Supreme Court Acquits Murder Convict Due To Unreliable Last-Seen Evidence And Principle Of Parity 138 NI Act | Accused Cannot Rebut Presumption Of Legally Enforceable Debt At Pre-Trial Stage In Cheque Bounce Cases: Supreme Court More Meritorious PWD Candidates From Reserved Categories Can Claim Unreserved PWD Posts In Open Competition: Supreme Court Meritorious Reserved Candidates Can Claim Unreserved Horizontal Vacancies Based On Merit: Supreme Court Employee Not Entitled To Gratuity Until Conclusion Of Both Departmental And Criminal Proceedings: Supreme Court Stamp Duty Recovery Against Legal Heirs Is Strictly Limited To The Extent Of Inherited Estate: Allahabad High Court Single Lathi Blow On Head During Sudden Altercation Amounts To Culpable Homicide Under Section 304 Part II IPC, Not Murder: Madhya Pradesh High Court Habeas Corpus Maintainable For Child Custody Against Father; Cannot Be Dismissed Merely Due To Alternate Remedy: Allahabad High Court "Plea Of Ignorance In Digital Era Inexcusable": Punjab & Haryana HC Imposes Rs 10K Cost On Accused For Hiding Prior Bail Dismissal Discrepancies In Name And Age On Monthly Pass Fail To Establish 'Bona Fide Passenger' Status In Railway Accident Claim: Delhi High Court "Last Seen" Theory A Weak Link If Time Gap Is Wide: Bombay High Court Acquits Man Sentenced To Life For Murder Failure To Conduct Pre-Anaesthetic Check-Up Prima Facie Amounts To Gross Medical Negligence Under Section 304A IPC: Kerala High Court Gujarat High Court Bans AI From Judicial Decision-Making, Lays Down Strict Policy for Court Use of Artificial Intelligence

ITAT to consider sale of capital assets or sale of stock in trade in land transfer tax case: Supreme Court

07 May 2024 8:19 AM

By: Admin


In a recent judgement, the Supreme Court has quashed and set aside the order passed by the High Court and the Income Tax Appellate Tribunal (ITAT) in a case related to the transfer of development rights. The apex court remanded the matter back to the ITAT to consider the appeal afresh in light of the observations made by the court and to take into account the relevant factors while considering the transaction as stock in trade or sale of capital assets or business transaction.

The bench comprising Justice MR Shah and Justice BV Nagarathna, observed that the ITAT has not considered the relevant aspects while considering the transaction in question as stock in trade and has not taken into account the relevant factors required to be considered by the ITAT. Therefore, the matter is required to be remanded to the ITAT to consider the appeal afresh in light of the observations made by the court and to take into account the relevant factors while considering the transaction.

The case relates to the treatment of the transaction as capital assets by the assessing officer. However, the ITAT reversed the said findings and held that the transaction was stock in trade. The assessing officer had recorded the findings based on examining the balance sheets for AY 2006-07 to 2009-10 that there was not even a single sale during all these years and that the transaction in question was the only transaction, i.e., transfer of development rights in respect of land. Consequently, it was held that the transaction was one of transfer of capital assets and not one of transfer of stock in trade.

However, the ITAT, after examining the opening and closing balance for AY 1996-97 to 2007-08 observed that inventory was shown in the balance sheet in multiple years, without discussing the claim of the assessee and held that the transaction in question was the sale of stock in trade. The ITAT has not dealt with the findings given by the assessing officer nor verified/examined the total sales made by the assessee during the relevant time and during the previous years.

The bench observed that merely recording inventory in the books of accounts would not make the transaction stock in trade. As per the settled position of law, multiple factors like frequency of trade and volume of trade, nature of transaction over the years, etc., are required to be examined to determine whether a particular transaction is the sale of capital assets or business expense.

The bench further noted that even if the claim made by the assessee is accepted, including the assertion that Rs. 15,94,06,500/- was shown in the tax return in the earlier AY i.e., 2008-09, the differential amount of Rs. 10,69,79,146/- on account of reduction in sale consideration of development rights was to be assessed in the current year as either capital gain or business income.

Date of Decision: May 04, 2023

Commissioner of Income Tax Mumbai vs Glowshine Builders & Developers Pvt. Ltd.

Latest Legal News