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TMI Blog2013 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... at Income and/or loss arising on transfer of such factory building is assessable as short term capital gain in terms of provisions of section 45 of the I.T. Act applicable for computation of capital gain. 3. Under the circumstances of the case, whether the CIT (A), Bareilly is justified in law in not appreciating the fact that special provisions of section 50C of the Income Tax Act, 1961 applicable in respect of transfer of capital assets, being land or building or both are squarely applicable on the transfer of such factory building as these are special deeming provisions for treating full value of consideration in certain cases. 4. Under the circumstances of the case whether the CIT (A), Bareilly is justified in law in not appreciating the fact that the prescribed circle rates fixed by District Magistrate of each districts separately for Industrial lands given on leasehold basis in order to arrive affair market value and the rates prescribed in public domain have been verified by the AO from official website." 3. Briefly stated, the facts giving rise to this appeal are that the case was selected for scrutiny and the Assessing Officer finalized the assessment u/s 143(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) did not appreciate the fact that special provisions of section 50C of the Act are applicable in respect of transfer of capital asset being land or building or both are squarely applicable on the impugned transfer of factory building in the present case because these are deeming provisions for treating full value of consideration. 7. The DR parted his argument with the submission that the Commissioner of Income Tax(A) also erred in law and on fact in not appreciating the fact that the prescribed circle rates fixed by DM, Bareilly separately for industrial use given on leasehold basis in order to arrive at fair market value and the rates prescribed in public domain have also been verified by the Assessing Officer before passing the assessment order. 8. We have heard arguments of DR. When the case was called for hearing, neither the assessee nor his representative attended the proceeding before this Tribunal. On careful perusal of record, impugned order and assessment order, we find it appropriate to decide the case after hearing the DR. Therefore, we proceed to decide the appeal. 9. We observe that as per impugned order, the assessee's representative made following submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the whole of the demised premises or buildings or both shall be subject to and the transferees and assignees shall be bound by all the covenants and conditions herein contained and be answerable to the Director of Industries U.P. in all respects thereof. PROVIDED ALWAYS that no such assignment, relinquishment or transfer will be valid or permissible where the assignee is not an industrialist approved by the Director of Industries U.P.". The assessee had transferred the Leasehold rights in the plot of DIC, Rampur to Mr Vineet Kumar Gupta on the Premium amount of Rs. 32400/-as per the direction/terms and condition of District Industries Centre, Rampur and paid the stamp duty of Rs. 3400/- and also got the registered agreement from sub Registrar, Tehsil sadar, Rampur on dt. 14/3/2007. The assessee was having only Lease hold rights. He had no absolute rights to sale/exchange/relinquish of this property. The actual rights was in the hand of General Manager of District Industries Centre on behalf of Governor of U.P. The lease transfer agreement is executed as triparty agreement amongst ourself, Shri Vineet Kumar Gupta and General Manager, District Industries Centre, Rampur on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent authority, sub registrar has assessed and adopted for this transfer agreement, the premium amount of Rs. 32,400/- only. Which has also been taken by us. Therefore the consideration of more than 32400/- can not be taken for determining Capital Gain/Loss u/s 5OC of Income Tax Act. Therefore the consideration adopted by the Learned Assessing Officer of Rs. 9,72,000.00 is against the provision of section 5OC. The consideration received and assessed and adopted by the sub register for registry purpose of Rs. 32,400.00 has to be taken as per provision of section 50C of Income Tax Act. The addition made on this account may please be deleted. Therefore also the Learned Assessing Officer is not justified in adopting the book value as consideration in place of consideration received by the assessee of Rs. 1,17,600.00. Therefore the addition made of Rs. 1,43,536.57 is against the provision of act which may please be deleted." 10. The Commissioner of Income Tax(A), Bareilly decided the issue with the following observations and findings:- "The facts in issue are that the assessee got leasehold rights in the plot from the District Industry Center Rampur for lease of 99 years for set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easehold right/license to the allottee for using the same for certain tenure mentioned in the lease agreement and also subject to the conditions including payment of service and maintenance charges, monthly rent and other liabilities which would be raised by State Government from time to time. Moreover, the lesee would be obliged to comply with the condition to establish arid commence industrial activity in the industrial plot within stipulated period. In case of failure to do so, the allottee would be liable to loose the leasehold rights. It is also an admitted fact that the transfer deed i.e. agreement between the assessee and the buyer with the registration authority of the U.P. Government. The A.O. did not give any finding to the fact that the assessee received consideration in addition to the consideration mentioned in the sale agreement and did not gather any material to establish with cogent evidence that there was evasion of tax by suppressing the true and correct consideration of transaction. After considering the facts of the case, contents of the order of the A.O. and submission of the appellant, it is my considered view that the addition made by the A.O. on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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