madhu (CA Practice ) (792 Points)
08 January 2016can anyone guide me in respect of this case law
J.RAJIV SUBRAMANIYAN & ANR VS M/S. PANDIYAS & ORS. ON 14.03.2014
my query is this is assesseee is liable for capital gain when Bank sold this propert to third person without his consent or
liable when he will sell this property
U S Sharma
(glidor@gmail.com)
(21056 Points)
Replied 08 January 2016
Yes assesee is liable
as the assets are sold by bank or liquidator to meet the loan amount borrowed by the assesee, the ultimate beneficiary is assesee, because the loan is getting credit with the amount received, so the capital gain liabilty would get fixed on the owner or assessee.
even if the assets of any third party guarantor is getting liquidated in the process, then also the owner of asset would get liable for Capital gain tax, irrespective of the fact that the amount is not received by assesee,
madhu
(CA Practice )
(792 Points)
Replied 08 January 2016
Please can u send any case law regarding this
After getting his property back from third party when person wants to sell his property
then amount paid to third party can he consider as a cost acquisition or cost of improvement
that amount included Interest Portion also
U S Sharma
(glidor@gmail.com)
(21056 Points)
Replied 08 January 2016
as before the auction / sale there is sufficient time given to the asset owner to meet the liability paid, and after the auction / liquidation the amount so received is utilized to meet the repayment process of borrower
however check your inbox, certain clarifications are put thereon for different situations
U S Sharma
(glidor@gmail.com)
(21056 Points)
Replied 08 January 2016
Two points are merged here
1) SARFEASI act 2002 under which the lander has to dispose the mortgage assets, under notice to borrowers to recover the dues. enough time provision is there to appear and negotiate with the lander,
1a) in the said case law the asset holder has claimed back the asset and agreed to pay the amount with intrest, (original consideration is gone to meet up the borrowing)
1b) as the original consideration is gone to meet the borrowing, the capital gain tax was adhered thereon, and was part of the asset holder / borrower.
2) Claiming Back
claiming back is process initiated by the asset holder after paying the sum received by the bank and thereafter interest to the tune of 3.25 cr as mentioned by the order
2a) stamp duty is also recovered from 18.90 lacs but its not clear in order that the intrument of conveyence is excecuted or not, however payment of stamp duty means deemed execution of conveyence.
2b) now the property is fresh buy back, or cancellation of the deed of conveyence is not clear in the order,
A) if there is a FRESH deed of conveyence is executed to get the property back then it would be fresh property as per the new deed,
B) if there is cancellation of conveyence deed executed by lander, then date of aquisition is taken as old date, and some of expenses can be clubbed as development of property.
now coming to capital gain point,
in situation A capital gain has taken place, and tax is payable
in situation B capital gain is under question, but department will seek all papers for study and therafter relif may be granted,
madhu
(CA Practice )
(792 Points)
Replied 08 January 2016
Thanks a lot for your prompt response and reply....
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