2017 (2) TMI 588

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....ongwith case laws in relation to the present case placed before this Bench. ''On the facts and in the circumstances of the case and in law the lower authorities have erred in applying the provisions of Section 50C of I.T. Act,1961 on the sale of Reservation Letter (Arakshan Patra) which is neither land nor building but it is a right to receive the allotment of land.'' (i) NTPC Ltd. vs. CIT (1998) 229 ITR 383 (SC) (ii) Zakir Hussain vs. CIT & Anr (2006) 202 CTR 40 Raj. (iii) Siksha vs. CIT (2011) 336 ITR 112 (Orissa) (iv) West Bengal Electricity Board vs. DCIT (2005) 278 ITR 218 (Cal.) (v) Orissa Cement Ltd. vs. CIT (2001) 250 ITR 856 (Del.) (vi) Ahmedabad Electricity Co. Ltd. vs. CIT (1993) 199 ITR 351 (Bom - F.B.) (vii) Anand Shankar Mittal vs. DCIT (ITA No. 778 & 779/JP/2009 dated 8th Jan. 2010 ITAT Jaipur Bench 43 TW 1) (viii) Choudhary & Bros vs. ITO (ITA No. 583/JP/2009 order dated 30-09-2010, 135 TTJ 055) (ix) M/s. Mittal Granites (P) Ltd. vs. DCIT (ITA No. 761, 1016, 762, 107, 1018, 1019 & 1020/JP/2013 order dated 16-03-2016) 2.2 I have heard both the sides on this issue of additional grou....

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....ring the course of hearing the ld. AR of the assessee filed the following written submission praying therein to delete the addition of Rs. 6,05,980/-confirmed by the ld. CIT(A). ''Submission on grounds of appeal Findings of the Assessing Officer: - The finding of the ld. AO is at page 2 of the assessment order wherein the ld. AO held that during the year under consideration the assessee sold land situated at SEZ, Bagru of 463 sq. meter for total consideration of Rs. 9,80,000/- as against this the DLC value adopted by the sub registrar for such land was Rs. 15,85,980/-. In view of such facts and in view of the provision of section 50C of the Act the assessee was required to adopted such DLC value of Rs. 15,85,980/- for the purpose of calculating the capital gain. Thus the ld. AO by rejecting the submission of the assessee applied the provisions of 50C of Income Tax Act, 1961 computed the capital gain by taking the full value of consideration Rs. 15,85,980/- as against Rs. 9,80,000/- taken by the assessee resulted addition of Rs. 6,05,980/- in total income of the assessee. Findings of ld CIT(A) The findings of ld CIT(A) are at pg 4-5 of his order. He confirmed the find....

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....fer cannot be described as 'land or building or both', then Section 50C will cease to apply. In the case of assessee the assessee sold "Arakshan Patra" which is right to receive the 20% residential land and 5% commercial land. These Arakashan Patra cannot be terms as land or building therefore the provisions of section 50C cannot be applied. Reliance is placed on the following decision:- (i) ITAT Ahmedabad Bench:- Smt. Devindraben I. Barot Versus Income Tax Officer, Ward 9(2) , Ahmedabad 2016 (7) TMI 275 ITAT AHMEDABAD ITA. No: 2220/AHD/2012 Dated: 06 May 2016 (Copy of decision is enclosed) (ii) ITAT Ahmedabad Bench:- ITO Vs Shri Yasin Moosa Godil ITA No 2519/Ahd/2009 order dated 13/04/2012 (iii) ITAT Mumbai Bench:-Atul G Puranil Vs ITO (2011) 132 ITD 0499 (iv) ITAT Mumbai:-Farid Gulmohamed Vs. Income Tax Officer (International Taxation) ITAT, Bombay Tribunal (F) ITA No. 5136/Mum/2014 16th March, 2016 (2016) 46 CCH 0300 Mum trib v) ITAT Pune Bench:- Kancast (P) Ltd Vs ITO (2015) 68 SOT 0110 (Pune) (vi) ITAT Lucknow Bench :- ITO Vs Hari Om Gupta (2016) 45 ITR Trib) 0137 (Lucknow) (vii) ITAT Kolkata Bench:- DCIT Vs Tejinder Singh ITA No 1459/Kol/2011 order dated 29/....

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.....07.2010 68 1,60,000 2,60,260 Sumit Agarwal 09.07.2010 91 1,60,000 2,96,940 Chetanaya Prakash Goyal 09.07.2010 68 1,60,000 2,60,260 Bhawana Agarwal 09.07.2010 118 2,50,000 3,84,260 Suman Agarwal 09.07.2010 118 2,50,000 3,84,260   Total 463 9,80,000 15,85,980   It is further noted that the Arakshan Patra is a right to receive 20% residential land and 5% commercial land in view of the land acquired by Jaipur Development Authority for SEZ. It is noted that the assessee purchased these rights from Shri Rekha Ram on 25-09-2009 for which the assessee filed the copy of purchase deed for Rs. 6,25,000/- at page 18-25 of assessee's paper book. It is also noted that the assessee sold these rights by executing different sale deeds in favour of the above mentioned five persons totaling to Rs. 9.80 lacs. It will be worthwhile to mention the provisions of Section 50C of the I.T. Act whether the assessee's case is covered under this section or not. [Special provision for full value of consideration in certain cases. 50C. (1) Where the consideration received or accruing as a result of the t....