Whether Capital gains tax liability arises if there is a Gift of share in property against cash gift pursuant to family settlement?

Whether Capital gains tax liability arises if there is a Gift of share in property against cash gift pursuant to family settlement?

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Whether Capital gains tax liability arises if there is a Gift of share in property against cash gift pursuant to family settlement?

Though, assessee had received cash gift from the person who received share in property from the assessee, however, such an arrangement was as per the family settlement between the members and could not be considered as transfer within the definition of section 2(47).

Assessee gifted her 50% interest in certain flat to her brother-in-law S. Also, assessee received gift from S of Rs. 68 lakhs. AO held that relinquishment of right in property was nothing but transfer within the meaning of section 2(47) and accordingly, AO computed long-term capital gain. Held:Assessee had gifted her share in the property in favour of her brother-in-law in pursuance of family arrangement between family members for acquiring separate property for each family member. The said transactions could be considered as transfer within the definition of section 2(47), Although the assessee had received cash gift from the person who received share in property from the assessee, such an arrangement was as per the family settlement between the members. Therefore, the AO was erred in bringing the above two gift transactions within the purview of definition of “transfer” under section 2(47).

Decision: In assessee’s favour.

IN THE ITAT, MUMBAI BENCH

JOGINDER SINGH, JM & G. MANJUNATHA, AM

Jyoti Rakesh Kapoor v. ITO

ITA No.583/M/2018

16 May, 2018

Assessee by: Renu Kapoor, A.R.

Revenue by: N. Hemalatha, D.R.

ORDER

G. Manjunatha, AM

This appeal filed by the assessee is directed against the order of the learned Commissioner (Appeals)-57, Mumbai dated 14-12-2017 and it pertains to assessment year 2013-14. The assessee has raised the following grounds of appeal:

“1. The learned Commissioner (Appeal) has erred in law and on the facts of the case in sustaining the order of the assessing officer holding that gift made by the assessee towards relinquishing 50% interest in the flat No. 52 at Ajanta Apartment, Colaba, Mumbai is a transfer within the meaning of section 2(47) of the Income Tax Act.

2. The learned Commissioner (Appeal) has erred in law and on the facts of the case in sustain the order of the assessing officer in not appreciating the fact that there was family agreement between members of the family by virtue of which the as ses see relinquished her 50% interest in flat No. 52 at Ajanta Apartment, Colaba, Mumbai.

3. The assessee craves leave to add, alter or amend the above grounds of appeal.”

2. The brief facts of the case are that the assessee has filed her return of income for assessment year 2013-14 declaring total income at Rs. 6,68,290. The case was selected for scrutiny and notices under section 143(2) and 142(1) along with detailed questionnaire dated 31-7-2015 were issued. In response to notices, the authorized representative of the assessee attended from time to time and furnished the details as called for. During the course of assessment proceedings, the assessing officer noticed that the assessee has gifted her 50% interest in flat No.52, Chanda Apartment, Colaba, Mumbai to her brother in law Shri Sanjay Kapoor vide gift deed dated 7-6-2012. The assessing officer further observed that during the year under consideration, the assessee has received gift from Shri Sanjay Kapoor of Rs. 68,50,000. In the light of the above facts, the assessing officer asked the assessee to explain as to why relinquishment of right in property shall not be treated as transfer within the meaning of section 2(47) of the Act, in view of the fact that the assessee has received cash gift of Rs. 68,50,000 in lieu of relinquishing her right in flat in favour of her brother in law. In response, the assessee vide her letter dated 7-1-2016 submitted that she has gifted her right in property in favour of her brother in law in accordance with family arrangement, as the family has decided to buy a separate flat for family member and accordingly she had gifted her 50% right in favour of her brother in law. The gifts were made in the family as a family arrangement to maintain peace and harmony, therefore, the same cannot be construed as transfer within the meaning of section 2(47) of the Income Tax Act, 1961. The assessing officer after considering the relevant submissions of the assessee and also on analysis of provisions of section 2(47), observed that the assessee’s alleged gift transaction by way of relinquishment of 50% interest in the property in favour of Shri Sanjay Kapoor is a transfer as Shri Sanjay Kapoor has gifted her an amount of Rs. 68,50,000 in lieu of relinquishing her right in the property. Therefore, the said transaction cannot be treated as family arrangements and accordingly, computed long term capital gain by taking into account fair market value of the property as on the date of gift and determined long term capital gain of Rs. 6,31,019.

3. Aggrieved by the assessment order, the assessee preferred appeal before the learned Commissioner (Appeals). Before the learned Commissioner (Appeals), the assessee has reiterated her submissions made before the assessing officer. The assessee further submitted that the assessing officer was erred in treating gifts between two family members as transfer which is liable to tax under section 2(47) of the Income Tax Act, 1961. The learned Commissioner (Appeals) after considering relevant submissions of the assessee dismissed appeal filed by the assessee by holding that the facts narrated by the assessing officer clearly come within the ambit of provisions of section 2(47) of the Income Tax Act, 1961 and hence the assessing officer was right in computing long term capital gain for relinquishment of 50% right in property in favour of her brother in law. The relevant portion of the order of learned Commissioner (Appeals) is extracted below:

“4. Decision:

The facts of the case are the appellant Smt. JyotiR. Kapoor & her brother in law Mr. Sanjay Kapoor carried out a joint business in the name of Jyoren Enterprises and both shared profits equally. In the year 1994 the family had purchased a Flat in Ajanta building (Flat No. 52) Colaba, Mumbai in which Ms. Jyoti Kapoor & Mr. Sanjay kapoor owned 50% share. During the relevant year as a family had funds they purchased another flat in the same building (Flat No. 01) for a consideration of Rs. 4.5 cr., which was purchased in the name of Ms. Jyoti Kapoor and her husband Rakesh kapoor as the family decided that both the brothers should own independent flats. So Ms. Jyoti Kapoor invested her 50% interest in flat No. 52 in Ajanta building and gifted her share to her brother in law Mr. Sanjay kapoor. Copy of the gift deed was submitted.

The other development which occurred was Mr. Sanjay kapoor gifted her 68,50,000 in the year 2012-13 as she did not have adequate funds to buy the flat.

The assessing officer has raised the query that why applicability of section 2 (47) in relation to gift received by assessee from her brother in law in assessment year 2012-13 and gift of half share in residential flat to her brother in law in assessment year 2013-14 should be attracted.

The assessee submitted that it is a family agreement and provision of section 2(47) is not attracted. The assessing officer held that as per provision section 2(47) transfer includes sale, exchange or relinquishment of assets or extinguishment of any rights their in it, and has concluded that the alleged gift is capital asset as per section 2(14) of the Income Tax Act and so capital gain is attracted in this case.

During the course of appellant proceedings the appellant submitted whatever was submitted before the assessing officer. It was pointed out that divesting of her share therefore doesnot under any circumstances fall under the definition of section 2(47) of the Income Tax Act. It was further submitted that it was a family settlement and following case laws were cited in support of that family settlement cannot be considered as a transfer under section 2(47).

–Madras High Court CIT v. Kay An Enterprises & Ors. (2008) 299 ITR 348 (Mad) (Annexure – 6)

–Karnataka High Court CIT v. R Nagaraja Rao (2013) 352 ITR 565 (Karn) (Annexure – 7)

–Smt. Vijaya Raje Scindia v. ITO [ITA No. 2780(Bom/89), dt. 17-12-1993].

–H. H. Moharani Manekuraje Pawan v. ITO (1986) 15 ITD 545 (Indore),

–Mohd. Haroon Japanwala v. ITO (1987) 22 ITD 61 (Del),

–DCIT v. Smt. Vaishali K Shah [(ITA No. 7074/Mum/96 assessment year 1992-93]

–CIT v. Sachin P. Ambulkar [ITA No. 6975 of 2010, dt. 16-10-2012] – (Annexure – 8)

It is pertinent to discuss the following issues which the assessing officer has brought out in the assessment order.

The assessing officer’s says the property was purchased by the assessee jointly with Shri. Sanjay Kapoor from their own funds partly by way of withdrawal from her capital in the partnership firm of M/s. Jyoren enterprises so this cannot said to belong to family.

2. The other property bought in the name of the assessee Ms. Jyoti kapoor and her spouse in the year 2012 was purchased for total consideration of Rs. 4.5 Cr. and Rs. 2,42,82,833 was invested by the assessee out of withdrawals from her capital Ale from the partnership firm MIs. Jyoren Enterprises and by way of loan from her husband. This shows that both properties were purchased by her own sources and so they do not fall under the ambit of family assets. From the above analysis done by the assessing officer it is clear that the above arrangement does not come under the purview of family settlement. Hence it will be pertinent to discuss the case law of Bombay High Court CIT v. Sachin P. Ambulkar [ITA No. 6975 of 2010, dt. 16-10-2012].

The court held that ITAT in para 19 of its order has recorded thus.

“We find that in the instant case there has been genuine dispute among the family members and several suits were filed and judgment were pronounced. Finally the parties to the suits decided to come to a settlement and family agreement was reached and a consent Decree was passed by the Bombay High Court in suit No. 4614 of 198 in 16-10-2003. The royalty paid by the Court receiver was only on interim relief of their share of income from the property of GD Ambulkar which right arose on account of their preexisting right in the properties as per WILL of GD Ambulkar.

Family agreement is a device by which dispute between family members as to their respected property were settled. Such settlement may involve division of property as between them and inconsequently a release of rights by one or the other in favour of the allottees. Conflicting legal claims get so settled”.

So it is very clear from the above High Court order that family settlements do not come under tax net wherein the properties belong to family pool. In the instant case I agree with the reasoning of the assessing officer that the said transaction comes under the ambit of section 2(47) and the provision of sec 45 are attracted and capital gain is attracted.

4. In the nutshell, the appellants Appeal is dismissed.”

4. The learned A.R. for the assessee submitted that the learned Commissioner (Appeals) was erred in confirming addition made by the assessing officer towards computation of long term capital gain on relinquishment of 50% interest in the family property in favour of another family member in accordance with family arrangement without appreciating the fact that the said transaction is a gift between two relatives.

5. On the other hand, the learned D.R. strongly supported the order of the learned Commissioner (Appeals).

6. We have heard both the parties and perused the materials available on record. The factual matrix of the case are that during the year under consideration the assessee has gifted her 50% right and interest in a family property in favour of her brother in law by way of gift deed dated 7-6-2012. During the same financial year the assessee also received a cash gift of Rs. 68,50,000 from Shri Sanjay Kapoor, the person who received gift from the assessee. Based on these facts, the assessing officer come to the conclusion that the said gifts between the assessee and her brother in law Shri Sanjay Kapoor are not in nature of gifts between family members, but transfer within the meaning of section 2(47) of the Income Tax Act, 1961 as the assessee has received a consideration of Rs. 68,50,000 for relinquishing her right in the property. It is the contention of the assessee that she has gifted her share in the property for family settlement as per which the family has decided to buy a separate property for each member by internal arrangements, therefore, she has relinquished her 50% right in the family property in favour of her brother in law. Though she has received cash gift of Rs. 68,50,000 in pursuance of relinquishing her right in property, the said transaction is purely a family arrangement between the family members for better peace and harmony. Therefore, the assessing officer was incorrect in treating the said transactions within the meaning of transfer as defined under section 2(47) of the Income Tax Act, 1961.

7. Having heard both the sides, we find merits in the arguments of the assessee for the reason that the assessee has gifted her 50% share in the property in favour of her brother in law in pursuance of family arrangement between the family members for acquiring separate property for each family member. The said transactions cannot be considered as transfer within the definition of section 2(47) of the Income Tax Act, 1961. Although the assessee has received cash gift of Rs. 68,50,000 from the person who received gift from the assessee, such an arrangement is as per the family settlement between the members. Therefore, the assessing officer was erred in bringing the above two gift transactions within the purview of definition of transfer as defined under section 2(47) of the Income Tax Act, 1961. The learned Commissioner (Appeals) without appreciating the facts simply confirmed additions made by the assessing officer. Therefore, we reverse the findings of the learned Commissioner (Appeals) and direct the assessing officer to delete additions made towards computation of long-term capital gain for relinquishment of 50% share in property by way of gift.

8. In the result, the appeal filed by the assessee is allowed.


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