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2016 (1) TMI 70 - AT - Income TaxApplicability of section 50C on lease hold rights - CIT(A) deleted the addition - Held that - As the assessee was having only lease hold rights for a period of 60 years, he cannot be considered to be the owner of the property so as to compute capital gain by adopting the market value as per the provisions of section 50C of the Act. In the aforesaid view of the matter, we agree with the decisions of the learned Commissioner (Appeals) in deleting the additions made on account of long term capital gain. - Decided against revenue Short term capital gain in respect of transfer of factory shed - Held that - the assessee also agreed that certain additional evidences were produced before the learned Commissioner (Appeals) for the first time, however, he submitted that not giving opportunity to the Assessing Officer to examine these evidences had no effect on the ultimate decision of the learned Commissioner (Appeals). Therefore, the Revenue s contention that there is violation of section 46A should not be accepted. Having considered the submissions of the parties, we are of the view that the learned Commissioner (Appeals) has violated provisions of rule 46A by considering additional evidence produced by the assessee without affording an opportunity to the Assessing Officer to examine the same. That being the case, without entering into the merits of legality / validity of computation of short term capital gain, we restore the matter back to the file of the Assessing Officer for deciding afresh after considering all the evidences produced by the assessee and only after due opportunity of hearing to him - Decided in favour of revenue for statistical purposes.
Issues Involved:
1. Applicability of section 50C on leasehold rights. 2. Admission of additional evidence in contravention to Rule 46A. 3. Deletion of Short Term Capital Gain addition. Issue 1 - Applicability of section 50C on leasehold rights: The case involved the Department appealing against the deletion of an addition of &8377; 2,13,02,298 by the Commissioner (Appeals) for the assessment year 2009-10. The dispute centered around whether section 50C was applicable to leasehold rights. The Assessing Officer contended that the assessee, who had a lease for 60 years, should be treated as the owner of the property. However, the Commissioner (Appeals) disagreed, citing that the assessee was not the owner but held leasehold rights, hence section 50C did not apply. The Tribunal agreed with the Commissioner (Appeals), emphasizing that the terms of the leasehold rights did not confer absolute ownership on the assessee, as demonstrated by similar precedents. Therefore, the Tribunal dismissed the Revenue's appeal on this ground. Issue 2 - Admission of additional evidence in contravention to Rule 46A: Regarding the admission of additional evidence in contravention of Rule 46A, the Tribunal found that the Commissioner (Appeals) had violated the rule by considering evidence not presented before the Assessing Officer. Although the Revenue's contention was valid, the Tribunal did not delve into the merits of the computation of short term capital gain. Instead, the matter was remanded back to the Assessing Officer for a fresh decision after considering all evidence and providing the assessee with a proper opportunity for a hearing. Consequently, the Tribunal allowed this ground for statistical purposes. Issue 3 - Deletion of Short Term Capital Gain addition: The third issue pertained to the deletion of Short Term Capital Gain addition by the Commissioner (Appeals). The Assessing Officer had disagreed with the assessee's computation of short term capital gain on the sale of a factory shed, leading to an addition of &8377; 18,42,146. However, the Commissioner (Appeals) considered additional evidence, including purchase and sale invoices, and ruled in favor of the assessee. The Tribunal acknowledged that the Commissioner (Appeals) had violated Rule 46A but did not address the legality of the capital gain computation. Instead, the matter was sent back to the Assessing Officer for a fresh decision after considering all evidence and providing a proper hearing. Consequently, the Tribunal allowed this ground for statistical purposes. In conclusion, the Revenue's appeal was partly allowed for statistical purposes, and the assessee's cross objection was dismissed as "not pressed."
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