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TMI Blog2009 (11) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or both, the learned AO erred in applying the said provisions for transfer of tenancy right. In deciding this ground, the learned CIT(A) erred in not considering the qualifying words 'capital assets being land or building or both'. 4. Though the working of long term capital gains of Rs. 2,07,466/- was supplied to the AO without prejudice the submission made in my letter dated 16.08.2007, the AO has made wrong observation that I have agreed for additional amount of consideration being difference between market value & document price amounting to Rs. 2,07,466 (being appellant's 2/3rd share of Rs. 3,11,200) be considered in working out long term capital gains. The learned CIT(A) erred in not deciding this ground. 5. Before applying the provision of section 50C, the AO has not referred the matter to valuation officer for ascertaining the value of transfer of tenancy right." The learned CIT(A) erred in not deciding this ground in right perspective manner." 2. Briefly, the facts of the case are that during the assessment proceedings, the AO noticed that the assessee has sold the flat No. 6 in Kishori Vihar for Rs. 30 lakhs as per the perusal of tenancy agreement dated 25.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. A.R. has vehemently argued that section 50C is not applicable to this case as same is applicable to in case a capital asset, being land or building or both and not in the case of tenancy right.. 3.1 At this juncture, it would be relevant to consider the relevant provision, which runs as under : "50C. Special provision for full value of consideration in certain cases.-(1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government (hereafter in this section referred to as the 'stamp valuation authority') for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer." 3.2 It is observed that section 50C was inserted by the Finance Act, 2002 with effect from 1-4-2003. Clause 24 of the Finance Bill as per Notes on clauses states that the insertion of this provision is to provide for a special provision for the full value of consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed for stamp duty purposes is revised in any appeal, revision or reference, the assessment made shall be amended to recompute the capital gains by taking the revised value as the full value of consideration. These amendments will take effect from 1-4-2003, and will, accordingly, apply in relation to the assessment year 2003-04 and subsequent years." 3.4 From the perusal of Notes on clauses and Memorandum explaining the provisions in the Finance Bill, 2002, it becomes explicitly clear that if the consideration declared to be received on sale of land or building or both is less than the value adopted or assessed by any authority of the State Government for the purposes of stamp duty in respect of such transfer, the value so adopted or assessed shall be deemed to be the full value of consideration and capital gain shall be computed accordingly under section 48 of the Act. A deeming provision has been enshrined in section 50C by virtue of which a legal fiction has been created for assuming the value adopted or assessed by any authority of State Government as the full value of sale consideration received in respect of such transfer. A legal fiction has been created only in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous." The oft-quoted observations of Rowlatt J. in the case of Cape Brandy Syndicate v. IRC [1921] 1 KB 64 ought also to be noticed at this juncture. The learned judge observed: "... In a taxing statute, one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." The observations of Rowlatt J. as above stand accepted and approved by the House of Lords in a later decision, in the case of Canadian Eagle Oil Co. Ltd. v. The King [1946] AC 119; [1945] 2 All ER 499. Lord Thankerton also in a manner similar in IRC v. Ross and Coulter (Bladnoch Distillery Co. Ltd.) [1948] 1 All ER 616 at page 625 observed : "If the meaning of the provision is reasonably clear, the courts have no jurisdiction to mitigate such harshness." The decision of this court in Keshavji Ravji and Co. v. CIT [1990] 183 ITR 1 also lends c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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