AHMEDABAD, NOV 18, 2013: THE issues before the Bench are - Whether Sec 54EC benefits are available to the assessee if it invests short-term capital gains on transfer of long-term depreciable assets and Whether such benefit is available to the assessee in case computation of capital gains is done either under Sections 48 and 49 or under Section 50. And the verdict goes against the Revenue.
Facts of the case
Assessee had sold a property with superstructure, plant and machinery for the total sale consideration of Rs.24,99,000/-. Yet another Plot was also sold along with the same for sale consideration of Rs.4,93,104/-. Assessee had purchased REC bond of Rs.41,70,000/- to claim deduction u/s 54EC. The LTCG in respect of property was computed by the AO after allowing the CII at Rs.2,35,266/-. In respect of the other property, no deduction u/s 54EC was allowed. However, the STCG was computed at Rs.41,53,722/-. On appeal, CIT(A) relying on the decision of the Bombay HC and Gauhati HC had allowed the deduction u/s 54EC on the sale of depreciable assets, which according to it was held by the assessee for more than 36 months. On further appeal, Tribunal had confirmed such findings of the CIT (A).
Before HC, the Revenue's counsel had submitted that the Tribunal's order was erroneous inasmuch as the view taken by the Bombay HC and Gauhati HC and thereafter, followed by this Court, was not a correct approach. It was further urged that no double benefits can be made available to assessee, who had already enjoyed a LTCG. It was further urged that for computation of capital gain arrived at on sale of depreciable assets a method was introduced to disentitle indexing to such owners. And, as section 54EC was applicable in transfer of LTCGs, assessee was not entitled to claim exemption u/s 54EC.
On appeal, the HC held that,
++ we notice that this Court in Tax Appeal No.730 of 2013, in the case of CIT v. Aditya Medisales Limited (2013-TIOL-806-HC-AHM-IT), dealt with an identical issue and also discussed both the decisions of Bombay High Court and that of Gauhati High Court. As could be noted from the findings of the tribunal it has essentially relied upon the decision of the Bombay High Court and concurred with the finding of the CIT(A) by holding that the exemptions under Section 54EC is to be allowed subject to the verification by the Assessing Officer that investment in long term capital asset was made by the assessee within the period prescribed under Section 54EC(1) from which short term capital gain is offered for the tax. The tribunal also held that exemption available u/s 54EC is available on short term capital gain arising from transfer of long term capital assets. There is no condition in the provision, which would preclude such interpretation. Admittedly, depreciable assets sold by the assessee were held by it for 10 years and therefore on such sale, investment in Rural Electrification Bond was made. We notice that the Bombay High Court was dealing with somewhat identical question where the long term capital gain arose on transfer of a depreciable long term capital asset. The Court questioned whether the assessee could be denied exemption under Section 54E only on the ground that Section 50 of the Act provides for computation of long term capital gains and capital gain offered was arising from the transfer of depreciable capital asset;
++ assessee cannot be denied exemption under Section 54E, because, firstly, there is nothing in Section 50 to suggest that the fiction created in Section 50 is not only restricted to Sections 48 and 49 but also applies to other provisions. On the contrary, Section 50 makes it explicitly clear that the deemed fiction created in subsections (1) and (2) of Section 50 is restricted only to the mode of computation of capital gains contained in Sections 48 and 49. Secondly, it is well established in law that a fiction created by the Legislature has to be confined to the purpose for which it is created. In this connection, we may refer to the decision of the apex court in the case of State Bank of India Vs. D. Hanumantha Rao reported in [1998] 6 SCC 183. In that case, the Service Rules framed by the bank provided for granting extension of service to those appointed prior to July 19, 1969. The respondent therein who had joined the bank on July 1, 1972, claimed extension of service because he was deemed to be appointed in the bank with effect from October 26, 1965, for the purpose of seniority, pay and pension on account of his past service in the army as Short Service Commissioned Officer. In that context, the apex court has held that the legal fiction created for the limited purpose of seniority, pay and pension cannot be extended for other purposes. Applying the ratio of the said judgment, we are of the opinion, that the fiction created under Section 50 is confined to the computation of capital gains only and cannot be extended beyond that. Thirdly, Section 54E does not make any distinction between depreciable asset and nondepreciable asset and, therefore, the exemption available to the depreciable asset under Section 54E cannot be denied by referring to the fiction created under Section 50. Section 54E specifically provides that where capital gain arising on transfer of a longterm capital asset is invested or deposited (whole or any part of the net consideration) in the specified assets, the assessee shall not be charged to capital gains. Therefore, the exemption under Section 54E of the Incometax Act cannot be denied to the assessee on account of the fiction created in Section 50;
++ it is true that Section 50 is enacted with the object of denying multiple benefits to the owners of depreciable assets. However, that restriction is limited to the computation of capital gains and not the exemption provisions. In other words, where the longterm capital asset has availed of depreciation, then the capital gain has to be computed in the manner prescribed under Section 50 and the capital gains tax will be charged as if such capital gain has arisen out of a short term capital asset but if such capital gain is invested in the manner prescribed in Section 54E, then the capital gain shall not be charged under Section 45 of the Income tax Act. To put it simply, the benefit of Section 54E will be available to the assessee irrespective of the fact that the computation of capital gains is done either under Sections 48 and 49 or under Section 50. The contention of the Revenue that by amendment to Section 50 of the longterm capital asset has been converted into a shortterm capital asset is also without any merit. As stated hereinabove, the legal fiction created by the statute is to deem the capital gain as shortterm capital gain and not to deem the asset as shortterm capital asset. Therefore, it cannot be said that Section 50 converts a longterm capital asset into a shortterm capital asset." We also notice that while doing so it has concurred with the decision of the Gauhati High Court in the case of CIT Vs. Assam Petroleum Industries (P.) Ltd. reported in [2003] 262 ITR 587. We are in agreement with both the decisions of the Gauhati High Court as well as the Bombay High Court in holding that capital gain arising of long term capital asset, if invested in specified asset, the assessee is not to be charged capital gains and exemption provided under Section 54EC of the Act cannot be denied to the assessee only on account of the fact that deeming fiction is created under Section 50 of the Act. In other words, legal fiction created under Section 50 of the Act is though restricted to computation of capital gains, such deeming fiction cannot restrict application of Section 54EC which allows exemption of capital gains, if assessee makes investment in the specified assets. Thus, the assessee cannot be charged to capital gains when short term gains of long terms capital assets get invested in the areas specified under the law. Neither the tribunal nor the CIT(A) committed any error applying these judgments to the facts of the instant case. The questions of law since is accordingly answered, this Tax Appeal is disposed of. The questions raised in the present Tax Appeal are also answered along the same line. For the foregoing reasons, the present Tax Appeal fails and is, accordingly, dismissed.
Regards
Prarthana Jalan
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