Late Shri Gordhandas S. Garodia vs. DCIT (ITAT Mumbai)- 28 Nov 2017
Some important notes/ paras of the case (for easy reference):
1- It is well settled principle of law that assessment has to be made on the basis of real income received by the assessee. In the facts of the present case, it is an admitted factual position that the assessee has not received the amount of ` 50 crore. There is also no certainty that the assessee would at all may receive the amount of ` 50 crore even in future. Therefore, the assessee cannot be subjected to capital gain on the amount of ` 50 crore, though, it may be a part of the total sale consideration mentioned in the agreement, considering the fact that the assessee was supposed to receive the said amount on fulfillment of certain conditions and as per the facts on record, the assessee has not received the said amount, since, the conditions have not been fulfilled.
2- Section 48 of the Act which provides the mode of computation of capital gain says that income chargeable under the head capital gain shall be computed by reducing certain amounts from full value of the consideration received or accruing as a result of transfer of the capital asset. The expression “full value of consideration received or accruing” would mean the amount actually received by the assessee or consideration which has accrued to the assessee. The expression “accrue” means a right acquired by the assessee to receive income. Unless, a debt due by somebody has been created in favour of assessee, it cannot be said that he has acquired a right to receive the income or that income has accrued to him An amount can accrue to assessee if he acquires a legally enforceable right to receive it from the debtor. Keeping in perspective the aforesaid statutory provisions, if we examine the facts of the present case, it cannot be said that assessee has either derived the profit or gain amounting to ` 50 crore during the relevant previous year in terms of section 45(1) of the Act, nor it can be said that the amount of ` 50 crore would form part of full value of the consideration received or accruing as a result of transfer of the capital asset.
For reading full text of the case please refer link - http://itatonline.org/archives/late-shri-gordhandas-s-garodia-vs-dcit-itat-mumbai-s-45-48-the-scheme-of-the-act-is-to-assess-real-income-and-not-hypothetical-income-the-word-accrue-in-full-value-of-consideration-received/gordhandas-garodia-capital-gains-accrual/
Some important notes/ paras of the case (for easy reference):
1- It is well settled principle of law that assessment has to be made on the basis of real income received by the assessee. In the facts of the present case, it is an admitted factual position that the assessee has not received the amount of ` 50 crore. There is also no certainty that the assessee would at all may receive the amount of ` 50 crore even in future. Therefore, the assessee cannot be subjected to capital gain on the amount of ` 50 crore, though, it may be a part of the total sale consideration mentioned in the agreement, considering the fact that the assessee was supposed to receive the said amount on fulfillment of certain conditions and as per the facts on record, the assessee has not received the said amount, since, the conditions have not been fulfilled.
2- Section 48 of the Act which provides the mode of computation of capital gain says that income chargeable under the head capital gain shall be computed by reducing certain amounts from full value of the consideration received or accruing as a result of transfer of the capital asset. The expression “full value of consideration received or accruing” would mean the amount actually received by the assessee or consideration which has accrued to the assessee. The expression “accrue” means a right acquired by the assessee to receive income. Unless, a debt due by somebody has been created in favour of assessee, it cannot be said that he has acquired a right to receive the income or that income has accrued to him An amount can accrue to assessee if he acquires a legally enforceable right to receive it from the debtor. Keeping in perspective the aforesaid statutory provisions, if we examine the facts of the present case, it cannot be said that assessee has either derived the profit or gain amounting to ` 50 crore during the relevant previous year in terms of section 45(1) of the Act, nor it can be said that the amount of ` 50 crore would form part of full value of the consideration received or accruing as a result of transfer of the capital asset.
For reading full text of the case please refer link - http://itatonline.org/archives/late-shri-gordhandas-s-garodia-vs-dcit-itat-mumbai-s-45-48-the-scheme-of-the-act-is-to-assess-real-income-and-not-hypothetical-income-the-word-accrue-in-full-value-of-consideration-received/gordhandas-garodia-capital-gains-accrual/
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