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TMI Blog2017 (2) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2011-12 raising therein following ground of appeal. Under the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in confirming the addition of ₹ 6,05,980/- made on account of Short term capital gain u/s 50C of I.T. Act, 1961 by considering the value adopted by Sub-Registrar at ₹ 15,85,980/- more so when during the assessment proceedings the assessee objected that the value adopted by the registration authorities is in excess to fair market value of the property and the AO has not complied the provision of sub-section 2 of Section 50C of I.T. Act. 2.1 During the course of hearing, the ld. AR of the assessee raised following additional ground alongwith case laws in relation to the present case placed before this Bench. On the facts and in the circumstances of the case and in law the lower authorities have erred in applying the provisions of Section 50C of I.T. Act,1961 on the sale of Reservation Letter (Arakshan Patra) which is neither land nor building but it is a right to receive the allotment of land. (i) NTPC Ltd. vs. CIT (1998) 229 ITR 383 (SC) (ii) Zakir Hussain vs. CIT Anr (2006) 202 CTR 40 Raj. (iii) Siksha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 50C of the Act inserted by the Finance Act 2002-, where the consideration received or accruing as a result of the transfer of land and/or building is less than the value adopted or assessed or assessable by an authority of the State got, then for the purpose of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall be deemed to be the full value of the consideration received or accruing as a result of such transfer for computing capital gain. In view of facts and circumstances of the case, I do not find any reason to intervene accordingly assessee's appeal is hereby dismissed. 3.2 During the course of hearing the ld. AR of the assessee filed the following written submission praying therein to delete the addition of ₹ 6,05,980/-confirmed by the ld. CIT(A). Submission on grounds of appeal Findings of the Assessing Officer: - The finding of the ld. AO is at page 2 of the assessment order wherein the ld. AO held that during the year under consideration the assessee sold land situated at SEZ, Bagru of 463 sq. meter for total consideration of ₹ 9,80,000/- as against this the DLC value adopted by the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased these rights from Shri Rekha Ram on 25/09/09 (copy of purchase Deed is at PB pg 18-25 for ₹ 625000/- . The description of the property is mentioned at PB pg 19. The assessee sold these rights by executing different sale deeds in favour of Shri Amit Agarwal (PB pg 26-31), Shri Sumit Agarwal (PB pg 32-37) , Chaitanya Prakash Goyal (PB pg 38-43), Smt Bhavana Agarwal (PB pg 44-49) , and Smt Suman Agarwal (PB pg 50- 55) for totaling to ₹ 9,80,000/-. From the reading of Section 50C, it is evident that Section 50C is a deeming provision and it extends only to land or building or both. Section 50C can come into play only in a situation where the consideration received or accruing as a result of the transfer by an appellant of a capital asset, being land or building or both is less than the value adopted or assessed or assessable for the purpose of payment of stamp duty in respect of such transfer. It is settled legal proposition that deeming provision can be applied only in respect of the situation specifically given and, hence, cannot go beyond the explicit mandate of the section. Clearly, therefore, it is essential for application of Section 50C that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the addition made by ld. AO and confirmed by ld CIT(A) 3.3 The ld. DR relied on the orders of the authorities below. 3.4 I have heard the rival contentions and perused the materials available on record. Brief facts of the case are that the assessee is an individual and derives income from Salary, Capital Gain and income from other sources. The assessee has filed return of income declaring total income at ₹ 5,08,910/- on 26-09-2011. The AO completed the assessment u/s 143(3) on 07-03-2014 on a total income of ₹ 11,14,890/- by increasing the short term capital gain by ₹ 6,05,980/- as against the declared short term capital gain of ₹ 3,43,425/- on a/c of difference of sales consideration received to assessee and value adopted by registrar authorities by applying the provision of section 50C of I.T. Act, 1961. In first appeal, the ld. CIT(A) has confirmed the action of the AO. It is noted from the records that the during the year under consideration the assessee had sold the Arakshna Patra having right to receive the allotment of land measure g 463 Sq. Mtr for ₹ 9,80,000/-. The assessee sold these lands in parts to various persons as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the provisions of sub-section (1), where- (a) the assessee claims before any Assessing Officer that the value adopted or assessed by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer; ( b ) the value so adopted or assessed by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court, the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section16A, clause ( i ) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanation.- For the purposes of this section, Valuation Officer shall have the same meaning as in clause ( r ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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