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TMI Blog2013 (6) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... lying on Carlton Hotels (P) Ltd. Vs ACIT [2008 (11) TMI 295 - ITAT LUCKNOW-A] & Atul G.Puranik vs. ITO [2011 (5) TMI 576 - ITAT, Mumbai] sec. 50C applies only to a capital asst, being land or building or both, it cannot be made applicable to lease rights in a land - in cases of transfer where agreement or sale deed is not registered and stamp duty is not paid, or capital gain is simply charged by deeming certain transactions as transfer as per other provisions of the act or some transactions of transfer are not registered or are not legally required to be registered under the Registration Act, S.50C cannot be put into operation. Also see Dy CIT vs. Tejender Singh [2012 (3) TMI 47 - ITAT, KOLKATA]. Thus on the issue of valuation, the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Development Corporation). The assessee has sold/transferred the lease hold property as per the agreement to sale dt. 27.8.2007 and the final lease deed dt. 29.10.2007. The elase hold property has been transferred which included the land of 10,216 sq.metres @ Rs.3,181/- per sq.metre at a total consideration of Rs.3,25,00,000/-. The lease hold property was acquired in 1971 for 90 years and the same has been transferred/sold in 2007 as per the final transfer lease deed dated 29.10.2007 for the remaining period of 54 years (90 years-36 years) i.e. 2007-1971. 3.2. The AO has taken the rate of the lease hold land @ Rs.4,500/- per sq.metre as per the rate of the UPSIDCO and accordingly has worked out the sale consideration of the land at Rs.4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and on a perusal of the papers on record, as well as the orders of the authorities below, and case laws cited, we hold as follows. 7. The undisputed fact is that there is no involvement or requirement of approaching the Stamp Duty Authority by the persons involved in the transaction as per law in this case. The lease in question has been granted by UP State Industrial Development Corp. Ltd. to the assessee vide lease agreement dated 29th day of October, 2007 for a period of 90 years. These lease hold rights were transferred to M/s. Sara Exports Ltd., Ghaziabad for a total consideration of Rs.3,25,00000/- only. Such transfer requires the approval of UPSIDCO. On these facts we have to see whether S.50`C` applies. 8. In the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital asset under transfer cannot be described as 'land or building or both', then s.50C will cease to apply. From the facts of this case narrated above, it is seen that the assessee was allotted lease right in the plot for a period of sixty years, which right was further assigned to M/s Pathik Construction in the year in question. It is axiomatic that the lease right in a plot of land are neither 'land or building or both' as such nor can be included within the scope of 'land or building or both' is well recognized under the I.T.Act. Sec.54D deals with ;certain cases in which capital gain on compulsory acquisition of land and building is charged. Sub sec.(1) of sec.54D opens with: "Subject to the provisions of sub section(2), where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the full value of consideration in the instant case be taken as Rs.2.50 crores." These case laws apply on all force to the facts of the case in hand. 10. In the case of DyCIT vs. Tejender Singh, 19 Taxman.Com 4, Calcutta the Bench was considering a case where the nature of property transferred was tenancy rights. It held that S 50`C` would not have been invoked on the facts on hand. Applying the propositions laid down in all these cases to the facts on hand, we uphold the order of the First Appellate Authority on this issue. 11. Even otherwise, on the issue of valuation, the working given by the Ld.CIT(A) could not be disputed by the Ld.DR. The Ld. CIT(A) held that the rate of Rs.4500/- per sq. feet is applicable for the standard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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