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TMI Blog2018 (11) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... o consideration the requisite facts for its adjudication. The appellant has referred judgment of Bombay High Court IN M/S. GREENFIELD HOTELS & ESTATES PVT. LTD. [2016 (12) TMI 353 - BOMBAY HIGH COURT] where it was held that Section 50C of the Act of 1961 would not be applicable on transfer of lease hold rights of the land. Bare perusal of Section 50C of the Act of 1961 does not show that transfer of capital asset for consideration should be other than of lease hold property or khatedari land. The court cannot rewrite the provision. If analogy taken by the Bombay High Court in the case (supra) is applied in general then Section 50C of the Act of 1961 would not be applicable in majority of the cases as not it is allowed as lease hold property. Section 50C of the Act of 1961 is applicable on transfer of capital assets for consideration. The Bombay High Court has not referred as how the land was in the balancesheet. It is as a capital asset or not thus we are unable to apply the judgment of Bombay High Court in the case of M/s. Greenfield Hotels & Estates Pvt. Ltd. (supra). No question of law is involved herein. - D.B. Income Tax Appeal No. 49/2018 - - - Dated:- 3-7-2018 - Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to other persons can be automatically change as an assets (Freehold land). This is the violation of rules that no one can pass better title than he himself has. Nemo dat quod non habet e) Whether ld. Tribunals below and Income Tax Officer was justified in applying Section 50C of the Act, 1961 on the transaction pertaining to contingent right/right to sue. B) Whether Tribunals below and Income Tax Officer was justified overlooking the fact finding of the Hon ble Supreme Court in the case of RSIDIC vs. Subhash Sindhi Cooperative Housing Society Ltd. Jaipur ors., observing the acquisition of subject land by RIICO prior to agreement to sell executed between assessee and buyer? 3. Against the common judgment in the case of Sh. Ram Ji Lal Meena vs. Income Tax Officer, ITA No.53/2018, coordinate bench of this court on 1.5.2018 passed the following order:- By this appeal, a challenge is made to the order dated 4th October, 2017, passed by the Income Tax Appellate Tribunal, Jaipur Bench, Jaipur (in short the Tribunal ), dismissing the appeal preferred by the assessee. The facts of the case are narrated in brief. It is a case where a land was sold by the assesseeappe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. The appellant has raised manifold issues for our consideration and, out of it, first is about nature of transfer of land. It is submitted that possession of land was lying with the RIICO thus right in the property was transferred and not the capital asset, thereby, Section 50C of the Act of 1961 would not be applicable. For ready reference, aforesaid provision is quoted hereunder: 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 [or assessable] 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 [or assessable] shall, for the purpose of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer: Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1), the value so adopted or assessed [or assessable] by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer. The provision aforesaid applies in the circumstances explained therein. If facts of this case are taken into consideration, a sale deed was executed for sale of the land. The appellant has received consideration. The sale deed was registered by the Sub-Registrar-IV, Jaipur. The transfer of capital asset exists, that too, on consideration. The dispute has been raised about possession of the property. According to the revenue, the possession of property lies with the assessee, whereas, according to the assessee, it lies with the RIICO. The material available on record does not show possession of RIICO as copy of award for acquisition of land and the fard possession are not on record. The documents show issuance of Notification under Sections 4 and 6 of the Land Acquisition Act, 1894 and not the award. The judgment of the Apex Court was also on challenge to the Notification under Sections 4 and 6 of the Act of 1894. Section 50C of the Act of 1961 has been invoked for the reasons explained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of section 50C will come into play only if the capital asset transferred by the assessee is a land or building or both. If, in the absence of capital asset transferred is neither the land nor building nor both, this deeming provision shall not be applicable to such transfer. 6.11 In the opinion of the Bench, the rights in land cannot be equated with the land or building. Therefore, it is concluded that section 50C is applicable to transfer of capital asset only in respect of land or building or both and is not applicable to right in land. In the present case, the assessee has only transferred the right in land for a valuable consideration, therefore, in the opinion of the Bench, the long term capital gain cannot be calculated by invoking the deeming provisions provided under section 50C. Therefore we hold that section 50C is not applicable to present case. This is also of view of Mumbai Tribunal in the case of Atul G. Puranik v. ITO (2011) 11 ITR 120 (Trib.). Learned Tribunal came to the conclusion that Section 50C of the Act of 1961 would apply if there is a transfer of land or building or both. It would not apply in absence of transfer of capital asset. In Para 6.11, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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