TaxTMI 
TaxTMI 
2016 (1) TMI 70
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the case and in law, the Ld.CIT(A) erred in deleting the addition of Rs. 2,13,02,298/- and holding that the section 50C is not applicable on leasehold rights by ignoring the fact that lease was for a very long period i.e 60 years, thus ignoring the decision of jurisdictional Hon'ble ITAT in the case of Shavo Norgren Pvt. Ltd.(Ts 898-ITAT Mum 2012) . 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in admitting additional evidence in the form of Deed of Assignment in contravention to Rule 46A, despite the assessee failing to produce the documents during assessment proceedings and further erred in holding that the value of the tenancy rights be allocated @ Rs. 500/- as against the cost of acq....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... further noted that for computing the short term capital gain, the assessee has taken sale consideration of Rs. 1 crore. However, the market value of the property is Rs. 2,35,07,298. He, therefore, proposed to compute capital gain by invoking the provisions of section 50C of the Act. Objecting to such action of the Assessing Officer, it was submitted by the assessee that provisions of section 50C will not be applicable as the land transferred was by way of a deed of assignment and the assessee is not the owner of the land and further the land is a lease hold land. It was submitted by the assessee that the lease hold land was assigned to M/s. Scan Orbit, vide deed of assignment dated 21st May 2008, along with factory shed having constructed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....omputation of both long term capital gain and short term capital gain, the assessee preferred appeal before the first appellate authority. 3. As far as long term capital gain on sale of plot is concerned, the learned Commissioner (Appeals) deleted the addition made by the Assessing Officer by invoking provisions of section 50C of the Act by holding that section 50C of the Act cannot be applied in respect of lease hold rights. In this context, he relied upon the decision of the Tribunal, Mumbai Bench, in Atul G. Puranik v/s ITO, 132 ITD 499 (Mum.). The learned Commissioner (Appeals) held that the assessee was not the owner of the land was only having lease hold rights, hence, for transfer of such lease hold rights, provisions of section 5....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cast Pvt. Ltd. v/s Income Tax Officer, 55 Taxman.com 171 (Pn.) 6. As far as the decision of the Tribunal, Mumbai Bench, in Shavo Norgren Pvt. Ltd. (supra), the learned Counsel for the assessee submitted that the fact involved in that case being distinguishable will not apply to the facts of the present case. He submitted that while in the case of Shavo Norgren Pvt. Ltd. (supra), the assessee has paid premium for the land, in case of the assessee no such premium has been paid. He submitted that as the assessee was not the owner of the land, he has not included in the block of asset, hence, it was not shown in the Balance Sheet. The learned Counsel referring to the letter of allotment issued by the Municipal Corporation, Greater Mumbai, as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ertain terms and conditions attached thereto. Therefore, it cannot be said that the assessee has absolute rights of an owner. In this context, a reference can be made to the decision of the Tribunal, Pune Bench, in Kancast Pvt. Ltd. v/s ITO, 55 Taxman.com 171 , wherein the co-ordinate bench, while considering the application of provisions of section 50C, in respect of transfer of lease hold rights of 99 years, held that as the assessee is only having lease hold rights, the provisions of section 50C would not apply. It will be pertinent to observe while so deciding, the co-ordinate bench also took note of the decision of the Tribunal, Mumbai Bench in Shavo Norgren Pvt. Ltd. (supra). The other decisions relied upon by the learned Counsel for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtain decisions, held that as per section 50, there is no requirement that for claiming deduction in respect of new asset it should be put into use for the purpose of carrying on the business. The only requirement is, it has to fall into a block of asset. He concluded as new factory premises has been brought into block of asset, the conditions of section 50 is fulfilled, hence, the value of the same has to be reduced while computing short term capital gain. Accordingly, he deleted the addition made by the Assessing Officer. 11. We have considered the rival submissions and have perused the material available on record. The specific contention of the learned Departmental Representative before us is, the learned Commissioner (Appeals) has d....