Supreme Court to Determine Whether Security Deposits on Real Estate Deals are Genuine or a Means to Evade Tax [Read Judgement]

The Supreme Court of India is set to examine whether the security deposit received on a property transaction amounts to taxable income or is a genuine business arrangement.

The case arises from a judgment of the Delhi High Court in Commissioner of Income Tax v. Ansal Properties and Industries Ltd., where the High Court held that the sum of Rs. 42 crore received by the company was taxable income and not a refundable security deposit.

The dispute arose from an agreement dated 1 April 1995 between Ansal Properties and Industries Ltd. (APIL) and Verka Investments Pvt. Ltd. (VIPL) concerning development rights in a commercial property located at 27 Kasturba Gandhi Marg, New Delhi.

Under the agreement, the company received Rs. 42 crore, which it described as a security deposit. During a search operation conducted by the Income Tax Department in February 2000, documents were found suggesting that the payment was non-refundable and formed part of the sale consideration for the property.

Before the High Court, the Revenue’s counsel argued that the so-called security deposit was a device to defer tax liability. They submitted that the seized documents and a confidential note clearly showed that the amount was a non-refundable consideration and had the character of taxable income in the assessment year 1995-96.

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The counsel argued that the Income Tax Appellate Tribunal (ITAT) had erred in treating it as a refundable deposit and that the transaction was merely structured to avoid immediate taxation.

The Division Bench of Justice S. Ravindra Bhat and Justice A.K. Chawla observed that the seized note indicated that 95.23% of the total consideration had been received by the assessee and was non-refundable.

The court explained that the arrangement was a colourable device intended to postpone tax liability and could not be accepted as a genuine deposit. It pointed out that the Tribunal had ignored the clear terms of the agreement and the evidence found during the search.

The High Court ruled that the Rs. 42 crore received by Ansal Properties and Industries Ltd. constituted taxable income and that the ITAT had erred in law in holding otherwise. The court, however, upheld the assessee’s contentions on other minor issues such as commission payments and cash reconciliations.

Ansal Properties later filed a Special Leave Petition before the Supreme Court challenging the High Court’s finding on the taxability of the Rs. 42 crore amount. The Supreme Court has granted time and is expected to decide whether such security deposits in property transactions are genuine or a means to defer tax liability.

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