TaxTMI 
TaxTMI 
2019 (7) TMI 1268
X X X X Extracts X X X X
X X X X Extracts X X X X
....gment is against the facts & law of the case. 2. That the learned CIT has erred in confirming the addition of the assessing officer in the Income on account of the Long Term Capital Gain of Rs. 52,22,895/- . 3. That the learned AO wrongly denied the Indexation on the Long Term Capital Gain on wrong interpretation of law and facts and hence to be deleted. 4. That the assessee Is entitled to the valuation as on 1.4.1981 u/s 55(2)(b) as he is not a tenant and has submitted all the desired documents required for the purpose of computing LTCG at the time of assessment. 5. That the Ld AO has wrongly denied the deduction on account of brokerage to agents of Rs. 2,00,000/- even after providing all the proofs like....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dismissed the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. GROUND NO.1 5. Ground No.1 is general in nature and does not require any specific adjudication. GROUNDS NO.2, 3 & 4 6. Ld. AR for the assessee challenging the impugned order contented inter alia that since the assessee has acquired the land in question prior to 01.04.1981, he is entitled to opt for Fair Market Value (FMV) as on 01.04.1981 as per valuation of approved valuer; that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pute the capital gains?" 10. When we examine covenants of the lease deed, available at pages 48 to 62 of the appeal file, it is proved on record inter alia :- (i) that assessee being a lessee has paid the provisional premium of Rs. 22,575/- which can be enhanced by the lessor; (ii) that assessee has been made to bear the additional cost of electrification or development; (iii) that in case, the lessor is required to contribute towards any development or the provision of facilities benefiting the said industrial area as a whole, lessee shall pay such proportionate premium to the lessor as may be determined in this behalf by the lessor; (iv) that the lessor shall pay a sum of Rs. 100/- per acre per annum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....him and the property in question can be inherited by his legal heirs also. Moreover, substantial interest of the assessee has been created in the property in question. So, when the tenure of the lease is for 90 years it certainly creates ownership rights in favour of the assessee who is entitled to erect industrial unit on the same though with the prior permission of the lessor, namely, UP State Development Corporation Ltd. 12. Coordinate Bench of the Tribunal in case cited as Joint Commissioner Of Income Tax vs Mukund Ltd. 291 ITR 249 held that premium paid by the assessee for acquisition of the leasehold rights for 99 years in the land are capital in nature and as such the premium paid by the assessee could not be considered as adva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e?" 16. Coordinate Bench of the Tribunal in case cited as M/s. Natraj vs. DCIT, Ahmedabad in ITA No.3063/Ahd/2010 order dated 04.01.2013 while deciding the identical issue, "as to how the value of leasehold right in the land in question of the assessee has to be determined in order to assess the long term capital gain" by returning the following findings:- "7. ........We find that the provision of section 55(2)(a) shall apply in relation to the capital assets mentioned in Section 55(2)(a) of the Act only. The capital assets as mentioned in Section 55(2)(a) are exhaustive and all inclusive of capital assets, such as goodwill, trade mark brand name, right to manufacture, produce or process any article or thing or right to carry on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on on the basis of fair market value as on 01.04.1981 and the cost of acquisition is not to be taken into account for computing the capital gain particularly when the assessee has opted for use the fair market value. So, the second question framed is also answered in affirmative in favour of the assessee. 18. In view of what has been discussed above, we are of the considered view that in view of the findings returned in the preceding paras, assessee's leasehold right for a period of 90 years in question is a capital asset and not tenancy rights to which provisions contained u/s 50C are applicable and assessee is entitled for benefit of fair market value as on 01.04.1981 in order to compute the capital gain. So, the findings returned by t....