TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 853
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....e Assessee and by Shri B. Yadagiri, Departmental Representative (DR) on behalf of the Revenue. First we take up ITA No.1139/Mum/2011 for A.Y. 2003- 04. 3.Ground No.1: In this ground the assessee has challenged the action of Ld. CIT(A) in holding that lease of immovable property was governed by section 2(47) of the Act and in holding that sec.50C would be applicable on the transactions of lease done by the assessee. 3.1. During the course of hearing Ld. Counsel has stated that on this issue the assessee is satisfied with the decision of Hon'ble Ld. CIT(A). Thus, without going into the controversy that whether a lease transactions would be covered u/s 50C, this ground is dismissed. 4. Ground No.2: In this ground the assessee has challenged the action of Ld. CIT(A) in confirming the estimate made by the AO of lease rent at Rs. 13,74,353/- as against the actual amount received by the assessee. 4.1. The brief facts are that the assessee is partnership firm which was formed for the purpose of developing and constructing the building at Malad, Mumbai. During the year under consideration, the assessee firm had shown lease rent from the Shradha Gyanpeeth Trust for consideration of Rs.....
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....y Stamp Valuation Officer. The relevant findings from the order of Ld. CIT(A) are reproduced below: "From the above, it is again clear that out of the total stamp duty paid by the appellant to the tune of Rs. 3,420/- first Rs. 1250/- pertains to the value of Rs. 2,50,000/- and the rest of Rs. 2,170/- is 3% of the value of Rs. 72,233.33 and in this way the total value to arrive at the stamp duty of Rs. 3,420/- adopted by the stamp valuation authority is Rs. 3,22,334/- only. It is a conscious decision of the parliament while inserting the provisions of Sc.50C through Finance Act 2002 w.e.f. 1/4/2003 that the value adopted or assessed by any authority of State Government i.e. Stamp Valuation Authority for the purpose of payment of stamp duty in respect of such transfer would be deemed to be the full value of consideration received or accruing as a result of such transfer for the purposes of Section 48 unless that valuation is disputed in any appeal or revision before the higher authorities than the stamp valuation authority, court or high court. Since the value adopted by the stamp duty authority to the tune of Rs. 3,22,334/- for arriving at stamp duty (c) Rs. 1250/- plus 3% of the ....
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....ing the value of consideration once again. Thus, in our view, the action of Ld. CIT(A) in estimating lease rent was not only self-contradictory but also beyond the provisions of law. 4.8. It is further noted by us that impugned plot of land was under reservation, and thus, the only utility for the assessee for this plot was that it could have been used for development and construction of school building. The assessee firm was not able to construct the school building and develop play ground upon the said land. The partners of the assessee firm felt that they did not have requisite experience to run an educational institute or school and they found it appropriate for a charitable trust to do this job. Under these circumstances, the assessee firm gave said land to charitable trust that could run school effectively. It is further noted that the said lease was approved by the BMC and Maharashtra Government. The property records were still in the name of the assessee firm, indicating that the assessee firm did not transfer full-fledged rights and interest in the said land to the lessee. Detailed discussion in this regard has been made by us at Para 7.1. of this order, which should read....
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....egate the detailed findings of the Ld. CIT(A). The transactions cannot be held to be sham merely on the basis of some doubts and apprehensions. Duly registered documents cannot be brushed aside or rewritten by the revenue authorities that too without bringing any contrary material on record. It is further noted that as per terms of the lease deed, if any additional TDS/FSI is allowed by the Government on the said land, then, the same shall be within the exclusive right and ownership of the lesser assessee. All these facts indicate that the absolute title has not yet been transferred by the assessee to the lessee. Thus, taking into account all the facts of the case, material placed before us for our consideration and detailed and well reasoned findings of Ld. CIT(A), we find that no interference is called for in the order of Ld. CIT(A) and same is upheld on this issue. Ground no.1 of Revenue's appeal is dismissed. 8. Ground No.2: In this ground, the Revenue has challenged the action of Ld. CIT(A) in directing the AO to adopt the market value of the property at Rs. 3,22,334/- on the basis of stamp value of the lease deed as was assessed by the Stamp Valuation Authority as per Bombay....
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.... take care of those situations, where no deed whatsoever, is registered by the parties, to evade the taxes. With a view to take care of such kind of situations, it was prescribed by the legislature that if no deed is registered by the parties, then in such a case if the deed would have been registered then whatever value would have been adopted, the same shall be adopted u/s 50C. But in the case before us, Lease Deed has been registered on which Stamp Valuation Officer has assessed the value for the purpose of ascertaining amount of stamp duty payable and therefore the same value should be adopted in the case before us. The clear mandate of the law is that the value adopted or assessed by the Stamp Valuation Authority shall be adopted for determining full value of consideration. Even, otherwise the word 'assessable' has been added w.e.f. 01.10.2009, and the case before us pertains to A.Y. 2003-04 i.e. prior to 01.10.2009 and therefore only preamended law shall be applied in the case before us. 8.3. Thus, keeping in view the facts of the case and the clear position of law before us, we find that action of Ld. CIT(A) in adopting the value as adopted by the Stamp Valuation Authority ....
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....assessee before deciding this issue. The assessee shall also extend requisite cooperation to the AO by furnishing required details and documents, as may be required by the AO and as may be considered appropriate by it, as per law and facts. Thus, this ground is partly allowed for statistical purposes. ITA No.1335/Mum/2011 Revenue's appeal and C.O. No.181/Mum/2013 for AY 2006-07: 12. The Grounds raised and issues arising in this appeal and CO are identical to A.Y. 2003-04. No distinction has been made out by either party before us. Thus, AO is directed to follow our order for A.Y. 2003-04 here also. Assessee's appeal in ITA No.1160/Mum/2011 & CO No.182/Mum/2013 for A.Y. 2007-08: 13. It is noted that grounds raised in assessee's appeal and Cross Objection filed by it are identical to the grounds raised for A.Y. 2003-04. The AO is directed to follow our order for A.Y. 2003-04 here also. 14. The assessee has raised additional ground as under: "Without prejudice to above, assessee has undertaken housing project which is the eligible for deduction u/s 80IB(10) and hence, if the amount of Rs. 62,39,236/- is held to be taxable in the impugned year i.e. A.Y. 2007-08 (as per the pro....
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....t expenses were incurred during the F.Y. 1996-97. The Ld. CIT(A) analysed these observations and found that requisite plans were approved by MCGB on 15th March 2002. It is well known fact that no project can be started without requisite approval. Under these circumstances, it has been held by the Ld. CIT(A) that it cannot be inferred that housing project was commenced prior to 1st October 1998. During the course of hearing before us, Ld. Counsel has drawn our attention to the commencement certificate exhibited in the paper book showing that the same was granted by the local authority on 15.03.2002 and a separate notice was given to BMC thereafter only. It has been further shown to us that the land was earlier an agricultural land, which was got converted to non-agricultural land, vide permission dated 15th September 2001. Thus, development and constructions work was not permissible unless such conversion was done. It has been further shown to us that development/construction expenses were incurred from A.Y. 2002-03 on words. It is further shown that payment to BMC or property tax or architect fee etc. have been incurred only after the commencement, development and construction of t....