Case Law Details

Case Name : Shailendra H. Bhati Vs ITO (ITAT Mumbai)
Appeal Number : IT Appeal No. – 5653 of 2012
Date of Judgement/Order : 10/06/2015
Related Assessment Year :
Courts : All ITAT (7029) ITAT Mumbai (2044)

Brief of the case:

The tribunal in the verdict of Shailendra H. Bhatia vs. ITO concluded that Transfer of possession with the ownership rights confer beneficial ownership which is good enough to hold the asset as capital asset

Facts of the case:

The assessee sold immovable property being residential flat for a consideration of Rs. 60 lacs. The AO after making inquiries taxed the gain Rs. 47 lacs after deduction of purchase price under the head “Income from other sources” (IFOS) without allowing deduction in respect of brokerage & stamp duty paid at the time of purchase. The AO assessed the income under other sources because he was of the opinion that having regard to the facts of the case flat was not a capital asset within the meaning of Sec 2(14) in the hands of the assessee.

The CIT (A) confirmed the action of AO against with the assessee filed appeal before the ITAT.

Contention of the Assessee:

The learned counsel for the assessee submitted that even though the property sold was not registered in the name of the assessee but the assessee has exclusive ownership rights over that property and for obtaining that right assessee has paid Rs. 13 lacs to the seller.

Thus, assessee being beneficial owner hold the asset as a capital asset within the meaning of Sec 2(14) of the Act and , therefore, the gain on sale of the same to be taxed under the head “capital gains “.

Contention of the Revenue:

The learned counsel for the Revenue submitted that the assessee acquired the property under the leave & license agreement of 33 months and on the date of sale ( 20th June,2008) the period of lease got over. As such on the date of sale assessee was not the registered owner of the asset and was merely having possession, thus, the AO rightly taxed the income arising from sale under IFOS.

Decision of the Tribunal :

The tribunal observed that as per clause no . 14(b) of the agreement between assessee and original seller, the seller transferred all the rights and handed over the original documents to the assessee. Pursuant to this clause the assessee acquired the ownership rights , therefore , merely the fact that he did not get property registered in his name doses not disqualify his claim of holding capital asset within the meaning of Sec 2(14) of the Act. It is why because under the I.T. Act, 1961 there is no condition that the property should be registered in name of the assessee. Therefore, even the beneficially held properties will also be capital assets   and liable to be assessed under the head “capital gains”.

The above view was confirmed by the judgment of the Hon’ble Supreme Court in the case of Podar Cement Pvt. Ltd. ITAT restored back the appeal to the file of AO for afresh consideration        

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  1. Ashok verma says:

    Dear sir,

    I took voluntary retirement after serving for more than 20 years. But my employers, illegally withheld a portion of my terminal dues. The High court decided in my favour and ordered my employer to pay all the balance terminal dues with interest @ 7.5% from retrospective date on which the retirement dues were due to be paid. Now, as a matter of fact, the rate of interest allowed by the court was so low being 7.5% simple rate of interest, it hardly took care of the inflation of over 8-9% during the past 10 years. In other words, the relief awarded by the court was hardly sufficient to negate the inflation. And even then, the employers deducted TDS on the said ‘interest” portion. My query is can I not seek refund of the entire TDS because if cost indexation is applied, the interest allowed is much less than the annual rate of inflation.

    My second query is supposing I am not eligible for claiming Refund of TDS, the “so called relief by way of interest awarded by the court” is to be considered under the head “salary and allowances” because the said interest has been allowed on retirement dues or it is to be considered as “income from other sources” while filing I.T.R.

    I do not know whether you entertain such type of requests from member of the public, but if you could do this favour, I shall feel obliged. If any payment/service charges are applicable, I do not mind paying if the same are reasonable. Thanks and regards,

    Ashok Verma

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