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TMI Blog2018 (5) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax [1988 (5) TMI 3 - SUPREME Court] as held the lease is for a long period, namely, 99 years, hence it would appear held that under the leases in question the assessee has parted with an asset of an enduring nature, namely, the rights to possession and enjoyment to the properties leased for a period of 99 years subject to certain conditions on which the respective leases could be terminated. A premium has been charged by the assessee in all the leases. We fail to see how it could be said that the provisions of Section 12-B of the said Act cannot be brought into play. The grant of the leases in question, in our view, amounts to a transfer of capital assets as contemplated under Section 12-B of the said Act. Also see A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. According to the AO, the value of land for the purpose of stamp duty was ₹70,40,000/-. The assessee claimed possession and occupation of the lands only as a tiller/Kashtkar and not as an owner. It argued that Section 50C was inapplicable; it contended that the owner of the lands was the State of Rajasthan. The AO rejected the explanation holding that the sale consideration was received by the assessee, and not the State of Rajasthan. It further observed that the assessee had failed to prove that the State of Rajasthan was the owner of the land. The CIT(A), held that the addition of ₹40,40,000/-, on account of difference in LTCG was not justified. It was held that Section 50C did not extend to rights in the property and since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable in Rajasthan are envisaged in schedule to the Stamp Duty Act. Rates of stamp duty applicable to conveyance of movable and immovable property are given in Article 21 of the Schedule. In case of immovable property, the rates of stamp duty is 11% of market value. Explanation-1 to article 21 reads For the purpose of this Article an agreement to sell an immovable property or an irrevocable power of attorney or any other instrument executed in the course of conveyance or lease e.g. allotment letters, patta, license etc. shall, in the case of transfer of the possession of such property before, at the time of or after the execution of any such instrument, be deemed to be a conveyance and the stamp duty thereon shall be chargeable according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the assessee that the State of Rajasthan has been shown as the owner in the revenue records is of no significance for adjudication of applicability of Section 50C as the present case is of a perpetual lease deed. We, therefore, hold that Section 50C is applicable to the facts of the assessee and uphold the order passed by the AO. The grounds of appeal raised by the revenue are allowed. 4. This court is of opinion that there is no merit in the appellant/assessee s contentions that the occupancy rights are not in the nature of capital assets, the transfer of which do not attract capital gains, as to exclude application of Section 50C. The rights (towards occupancy) are nearly permanent, having regard to the nature of holding. More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th Edition) at page 550 and no contrary case has been cited in the said text book or has been brought to our attention. It is true that the decision of the Patna High Court relates to a case of mining lease, but to our mind, the principle laid down in that case can well be applied to the case before us. In the first place, the lease is for a long period, namely, 99 years, hence it would appear held that under the leases in question the assessee has parted with an asset of an enduring nature, namely, the rights to possession and enjoyment to the properties leased for a period of 99 years subject to certain conditions on which the respective leases could be terminated. A premium has been charged by the assessee in all the leases. In these ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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