Benefit from scrapped flat deal is capital gain

If a Mumbaikar books a flat, then cancels the deal with the builder, and benefits by receiving a sum higher than the earnest amount paid, the excess will not be treated as a tax-free income. In tax parlance, it will not constitute a capital receipt. The Income-Tax Appellate Tribunal’s Mumbai bench, in a recent order, ruled that the excess consideration received is in the nature of ‘capital gains’.

In the absence of any contrary jurisdictional order, this ITAT order will also play a significant role in assessment of cases outside Mumbai.

The ITAT view is more favourable than the tax department’s. An I-T officer, in the course of his assessment, had treated the excess sum minus the booking and earnest money as ‘income from other sources’.

Under Section 54 of the Income-Tax (I-T) Act, if long-term capital gains arising out of a house sale are invested in another home in India within a stipulated period of time, then to the extent of such investment, the taxable component of capital gains is reduced. This results in a lower tax outgo. Thus, if the entire amount of long-term capital gains is invested, no tax is payable.

Anil Harish, an advocate specialising in real estate, told : “I agree with the ITAT view and it is a good decision. Years ago, in 1979, the Bombay high court had held that when a part-payment was made and a right was acquired, this amounted to a capital asset, even though the transaction had not been completed. On the sale of the asset, the surplus was to be treated as a capital gain. This high court order has been the foundation for several other decisions referred to in the recent ITAT order.”

In this case heard by ITAT, Mukesh Sohanraj Vardhan, the taxpayer, had treated the benefit of Rs 18.75 lakh received from the builder on cancellation of his deal-flat booked in Vardhaman Heights, Byculla-as a long-term capital gain. He had invested a significantly higher amount in another house property within the stipulated time and thus claimed the benefit of Section 54. The I-T officer, though, sought to treat the sum of Rs 18.75 lakh as income from other sources-a position the commissioner of income-tax (appeals) upheld.