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TMI Blog2017 (10) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the same cannot fall under the provisions of Sec.2(22(e) as deemed dividend. Hence, we do not have any hesitation to delete the said addition as added on account of deemed dividend. No hesitation to delete the said addition as added on account of deemed dividend. - I.T.A. No. 74(Asr)/2016 - - - Dated:- 14-9-2017 - T. S. Kapoor (Accountant Member) And N. K. Choudhry (Judicial Member) For the Appellant : Parveen Jain (Ld. Adv.) For the Respondent : Ghulam Mustfa (Ld. DR) ORDER N. K. Choudhry (Judicial Member) The instant appeal has been preferred by the assessee on feeling aggrieved against the order dated 28.10.2015 passed by the Ld. CIT(A)-, Jammu, in Appeal No.26/14-015 relevant to the Asst. Year: 2011-12. 2. The assessee has raised the following grounds of appeal. 1. This is an appeal under section 253(1)(a) against the order under section 250(6) of the Income Tax Act, 1961 passed by the Hon ble Commissioner of Income Tax (Appeals), Jammu on 28.10.2015 for the assessment year 2011-2012 where he has confirmed the following addition: (a) That the Ld. AO and the worthy Commissioner of Income Tax (Appeals) failed to appreciate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ammu and, accordingly, worked out the long capital gain u/s 50C(1), and added a sum of ₹ 5,62,732/- for one plot and ₹ 6,17,941/- for another plot. Second issue relates to the disallowance of interest of ₹ 3,58,005/- which was not allowed as deduction u/s 24(b) of the Act. Third issue , the Assessing Officer also treated ₹ 10 Lakhs received from M/s Sat Agrotech Overseas Pvt. Ltd. as deemed dividend in the hands of the assessee and added to the returned income of the assessee. 4. Feeling aggrieved against the assessment order, the assessee preferred the first appeal before the Ld. CIT(A), who partly allowed the appeal of the assessee by deleting the addition qua disallowance of Housing Loan Interest, however, confirmed the addition made u/s 50C of the I.T. Act, as well as addition on account of deemed dividend u/s 2(22)(e) of the Act by holding as under: 4.1 Addition U/s 50(C) of the Income Tax Act:- ************ 4.2 I have perused the assessment order and also considered the submissions made by the appellant. As per provisions of section 50C(1) of the Income Tax Act, the consideration received on accruing as a result of the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction and, therefore, the Assessing Officer has rightly treated this amount as deemed dividend under the provisions of section 2(22)(e) of the Income tax Act. The ratio of the decision of Delhi High Court as cited by the appellant does not apply in present case as facts of both the cases are different. 5. Now, feeling aggrieved against the order passed by the Ld. CIT(A), the assessee assailed the order before us and in support of its case submitted that the appellant had purchased the leasehold plots situated at Channi Himmat Housing Colony, Jammu and during the year under consideration , the same were being sold and tax on capital gain was paid, however, during the course of assessment proceedings, the Ld. AO was of the view that the value of the plots were to be calculated as per the circle rates of Jammu Division under The Stamp Act and not by Jammu and Kashmir Housing Board. Thus, the provisions of Sec.50C of the Income Tax Act, 1961 are applicable to the case of the appellant. Hence, the addition of ₹ 11,80,673/- was made. The Ld. AR Mr. Praveen Jain emphasized that according to the Stamp (Amendment) Act, 2011 as applicable to the J K State prescribed u/s 55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n:- Transfer of any lease exempt from duty Further the observations of the Hon ble Mumbai High Court are also required to be taking into consideration for proper adjudication of the issue in hand. The issue before the Tribunal was whether Sec.50(C) of the Act would be applicable to transfer of leasehold rights in land and buildings. The impugned order of the Tribunal followed its decision in Atul. G. Puranik Vs. ITO (ITA No.3051/Mum/2010) decided on 30th May, 2011 which held that Sec.50C is not applicable while the computing capital gains of transfer of leasehold rights in lands and buildings. We have perused the ingredients of Sec.55 of the Stamp (Amendment) Act, 2011 which clearly exempt the leasehold property from valuation under the stamp duty (Supra) and even otherwise the judgment passed by the Hon ble Mumbai High Court is guiding factor for coming to the right conclusion, therefore, we do not have any hesitation to hold that the plots under disputes were exempted from Stamp duty according to section 55 of the Stamp Act (supra) because the leasehold property does not fall within the dimens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22)(e) of the Act. Accordingly, henceforth, appeals may not be filed on this ground by Officers of the Department and those already filed, in Courts/Tribunals may be withdrawn/not pressed upon. 4. The above may be brought to the notice of all concerned. If we consider the circumstances of the instant case, the Board of the Sat Agrotech Overseas Pvt. Ltd., vide resolution, authorized the Assesse to apply, sign and submit the application, papers, draft/cheque, etc. to be submitted for the purchase of commercial plots being leased out by J K Housing Board in Sector-2, in Housing Colony, Channi Himmat, Jammu. Further, it was also resolved and agreed amongst the Director of Company that the funds shall be raised by the company to Sh. Rajan Gupta, Director for placing a bid with the understanding that the Commercial Plot will be handed over to company for its commercial use or any other purpose which the company decides in future and if the commercial plot is not allotted by the J K Housing Board then the amount shall be refunded by Sh. Rajan Gupta, Director. It is undisputed fact that for purchase of the land/plot, the earnest money to the tune of ₹ 10 Lakhs was de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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