9911796707
TMI Blog2013 (4) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has erred in following the decision of the Hon'ble ITAT Mumbai in the case of Smt. Kishori Sharad Gaitonde vs. ITO-18(1)(1) vide ITA No.1561/M/09 and Shri Atul G. Puranik vs. ITO 12(1)(1) vide ITA No.3051/M/2010 wherein it is held that the section 50C has no application and the capital gains have to be computed on the basis of the actual consideration and not the stamp duty value. 3. The Ld CIT (A) has failed to appreciate the decision of the Hon'ble ITAT in the case of Arif Akhtar Hussain vs. ITO wherein the Hon'ble ITAT held that u/s 2(47)(v) the giving of possession in part performance of a contract as per section 53A of the Transfer of Property Act is deemed to be a transfer." 3. At the outset, Shri Ajeet Manwani, Ld Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned transaction of transfer of tenancy rights is not attracted by the provisions of section 50C. The appellant succeeds on this ground. Secondly, as pointed out by the appellant there was an error in the computation of the capital gains that the indexed cost of acquisition was adopted at Rs. 2.30 crores instead of 3.27 crores noted in the body of the assessment order. The AO is directed to correct the said mistake while giving effect to this order. Appellant succeeds on this ground." 4. On perusal of the said orders which are placed before us as well as the said contents of the order of the CIT (A), we find the order of the Tribunal in the case of Shri Atul G. Puranik vs. ITO 12(1)(1) vide ITA No.3051/M/2010, dated 13.5.2011 which is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights attached to the 'land or building or both' and however, they are not covered by the definition of 'land or building or both' specified in the provisions of section 50C of the Act, which is marked as deemed provisions. The deemed provisions are not to be extended to items of capital assets which are not mentioned in section 50C of the Act and it is the settled legal position. Therefore, considering the above settled nature of the issue the provisions of section 50C of the Act, which is the deeming fiction of substituting the value adopted or assessed or assessable by the stamp valuation authority only in respect of land or building or both cannot be extended or extrapolated to the transaction of transfer of the tenancy rights. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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