HIGH COURT OF
Commissioner
of Income-tax
v.
Sharad
Sharma
R.K.
Agrawal and Vikram Nath, JJ.
IT
Reference No. 176 of 1993
July
6, 2007
Section 48 of the Income-tax Act, 1961 – Capital gains – Computation of – Assessment year 1984-85 - Whether in a case of inheritance/acquisition along with mortgage perfecting his title by getting mortgage discharged assessee would be entitled to get deduction of mortgage debt but where charge is created by assessee himself, it cannot be said that amount of mortgage debt out of sale proceeds be deductible while calculating capital gains – Held, yes – Assessee mortgaged his house property to bank against a loan – For discharge of mortgage debt, assessee sold house property – Assessee received entire amount of sale consideration and applied part of it in discharge of mortgage debt – Assessing Officer calculated capital gains on basis of entire sale proceeds and made addition to income of assessee – However, Tribunal deleted addition holding that there was an overriding charge against sale proceeds of property and assessee was not liable for capital gains in respect of amount paid to bank in discharge of loan – Whether since assessee had himself created charge over property, it would be a case of application of income received by assessee and not of diversion of income by overriding charge – Held, yes – Whether therefore, assessee was not entitled to deduction of amount paid to bank in discharge of loan in computation of capital gains – Held yes
The assessee was a partner in firm ‘S’ took loan from the bank and mortgaged house property belonging to the assessee. The bank enforced the recovery of loan against ‘S’ by sale of the property mortgaged. The house was auctioned by the assessee and out of the total sale consideration received, he discharged mortgaged debt and received balance amount. The Assessing Officer calculated the capital gain on the basis of the entire sale proceeds and made addition to income of assessee. On appeal, the Commissioner (Appeals) confirmed the addition. On second appeal, the Tribunal deleted the addition holding that the bank had an overriding title over the property and the real value, to which the assessee was entitled, was only the balance amount after discharge of mortgage a debt and, therefore, no capital gain was chargeable to that extent.
On reference:
The reasoning given by the Tribunal with regard to
overriding charge over the sale income was not correct for the reason as the
assessee had himself created the mortgage by taking a loan from the bank and
the said property had been secured for repayment of loan. It was not a case
where the assessee had inherited the property or had acquired the property
along with charge but in fact had himself created the charge over the property.
In a case of inheritance/acquisition along with mortgage perfecting his title
by getting mortgage discharged, the assessee would be entitled to get deduction
of mortgage debt but where charge is created by the assessee himself, it cannot
be said that amount of mortgage debt out of sale proceeds be deductible while
calculating capital gains. The instant one was a case of application of income
by the assessee. (
In the instant case the assessee
was not entitled to the deduction as claimed on account of discharge of
mortgage debt of Rs. 95,000 (sic) to the bank. In fact the entire amount
of sale consideration had been received by the assessee and thereafter part of
applied for discharge of the mortgage debit. It was, thus, a case of
application of income received. [
Therefore, the order of the
Tribunal deleting the addition could not be upheld. [