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TMI Blog2017 (7) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... that the transfer of capital assets and not transfer of lease holding rights attracting the provisions of section 50C of the Act. For this assessee as raised following two grounds: - "1. On the facts & circumstances of the case and Commissioner of Income Tax (A)-38. Mumbai holding that the leasehold rights, Tax Act, 1961. in law, the learned was not justified in re is a transfer of capital asset and not transfer of attracting the provisions of section 50C of the Income. 2. On the facts & circumstances of the case and in law, the learned Commissioner of Income Tax (A)-38, Mumbai erred in not deleting the addition made to the capital gains by invoking Section 50C of Income Tax Act, 1961." 3. Briefly stated facts are that the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling inaccurate particulars of income." 4. Aggrieved, assessee preferred the appeal before CIT(A), who after going through the terms of lease agreement and deed of assignment dated 16-04-2008 reproduced the clause of the assignments deed given at page 2 last paragraph wherein assigner agree to transfer to assignee and assigner agree to acquire from the assignee of the leasehold rights and interest in all and singular in the said plot No.PAP-D-29 admeasuring 100 square meters along with building and other structures constructed thereon as whereas basis for consideration of Rs. 15.50 lakhs. According to the CIT(A) this was confirmed by Maharashtra Industrial Development Corporation giving consent for transfer of this plot by observing in Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts of the appellant in the aforesaid property ceased to exist after the said property was transferred to the buyer which in my opinion is a clear cut case of transfer of property wherein the title of the property has been assigned to the buyer." 5. Aggrieved, against this finding, assessee is now in the appeal before the Tribunal. We have heard the rival contentions and gone through the facts and circumstances of the case. Before us, the learned Counsel for the assessee stated that the facts are undisputed and he drew our attention to lease deed dated 17-05-2006 by virtue of which the assessee acquire lease hold rights in this property for 95 years on the basis of lease rent. He drew our attention to lease deed page 3, the first clause w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Hon'ble High Court's consideration. "(i) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law, in setting aside the issue of applicability of section 50C of the Act are applicable to transfer of capital asset being land or building or both and that in the assessee's case transfer of leasehold rights amounted to transfer of capital asset as envisaged in section 50C of the Act?" And finally Hon'ble High Court decided the issue in favour of assessee vide paras 3, 4 and 5 as under: - "3. The only grievance of the revenue in this appeal is that the provisions of Section 50C of the Act mandates that where a transfer of capital asset being land or building or both is for consideration less than its valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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