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| The Tax Publishers2020 TaxPub(DT) 2936 (Mad-HC) : (2021) 430 ITR 0082 : (2020) 317 CTR 0116 : (2020) 273 TAXMAN 0513 INCOME TAX ACT, 1961
Section 2(47)
Where issue arose as to whether arrangement between assessee and his brother by way of gift settlement deed would amount to transfer within the meaning of section 2(47), and Tribunal held that capital gains was not attracted as for purpose of section 49(1)(ii), there was no difference between gift and settlement, considering Tribunal's order was devoid of any reasons, matter was remitted back to CIT(A) for consideration afresh.
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Capital gains - Transfer - Arrangement between assessee and his brother by way of gift settlement deed, whether amounted to transfer -
Assessee was an individual and a partner of group of concerns. Pursuant to a search action, assessments were made under section 153C read with section 153A and section 143(3). Assessee and his brother purchased certain properties and they were not inherited. Assessee relinquished 50% of share in certain of those properties vide settlement deed in favour of his brother, who also relinquished his 50% of the share in certain other properties by way of another settlement deed in favour of assessee. AO alleged that transaction of settlement executed by assessee amounted to 'transfer' within meaning of section 2(47) and it attracted provisions of section 45. Held: Tribunal concluded that artificial definition made by lower Authorities with reference to gift and settlement was not appropriate. Tribunal was of the opinion that for the purpose of section 49(1)(ii), there was no difference between gift and settlement and that in the instant case, settlement made with the assessee's brother could not attract capital gains on that count. There were no reasons as to how Tribunal came to such a conclusion. Therefore, said finding was not supported by reasons and was not sustainable. Accordingly, said order was set aside and matter was remitted back to CIT(A) for a fresh consideration in accordance with law.
REFERRED : CIT v. Narang Dairy Products (1996) 219 ITR 478 (SC) : 1996 TaxPub(DT) 0985 (SC) CIT v. Rasiklal Maneklal (HUF) (1989) 177 ITR 198 : 1989 TaxPub(DT) 1092 (SC) KALE v. Deputy Director Of Consolidation AIR 1976 SC 807 S. Shanmugam Pillai v. K. Shanmugam Pillai AIR 1972 SC 2069 CIT v. Ashwani Chopra & Ors. [ITA.No.353 of 2011 dated 10-1-2013] : 2013 TaxPub(DT) 0786 (P&H-HC) CIT v. R. Ponnammal (1987) 164 ITR 706 (Mad) : 1987 TaxPub(DT) 0468 (Mad-HC) ITO v. Abdul Hameed Khan Mohammed [ITA No. 1782/ Mds/2015 dated 29-12-2015] for the assessment year 2011-12 : 2016 TaxPub(DT) 0384 (Chen-Trib) R. Manogar v. ACIT [ITA.No.3038 of 2005 dated 19-2-2012] : 2012 TaxPub(DT) 2079 (Karn-HC)
FAVOUR : Matter remanded
A.Y. : 2010-11
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