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TMI Blog2018 (5) TMI 1792X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 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 re-write the provision. If analogy taken by the Bombay High Court in the case (supra) is applied in general then Section 50C would not be applicable in majority of the cases as not it is allowed as lease hold property. Section 50C is applicable on transfer of capital assets for consideration. The Bombay High Court has not referred as how the land was in the balance-sheet. It is as a capital asset or not thus we are unable to apply the judgment of Bombay High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it remained with the RIICO and not with the assessee. The sale deed was wrongly taken to be a transfer of capital asset, rather, it was only of rights. In view of the above, Section 50C of the Act of 1961 was not applicable yet covering the case by the aforesaid provision, additions were made. Learned counsel for petitioner has made reference of various orders passed by the Tribunal and also of the High Court. It is also submitted that Section 50C of the Act of 1961 cannot be invoked if property is lease hold and not free hold and also when there exist khatedari rights, if it is a revenue land. The ownership vest in the State Government in both the cases. The Bombay High Court in the case of Commissioner of Income Tax Central II, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purpose of computing full value of consideration for such transfer: Provided further that the first proviso shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). Explanation 2.-For the purposes of this section, the expression assessable means the price which the stamp valuation authority would have, notwithstanding anything to the contrary contained in any other law for the time being in force, adopted or assessed, if it were referred to such authority for the purposes of the payment of stamp duty.] (3) Subject to the provisions contained in subsection (2), where the value ascertained under subsection (2) exceeds the value adopted or assessed [or assessable] by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed [or assessable] by such authority shall be taken as the full va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y made by the Assessing Officer by applying Section 50C of the Act of 1961. In view of the above, we do not find that a question of law is involved in this case. The dispute has been raised on facts. That cannot be a ground for maintaining an appeal as it can be admitted only if question of law is involved. Taking into consideration the aforesaid, we do not find that appeal preferred by the assessee against the order passed by the Tribunal can be admitted. Learned counsel for appellant has made reference of certain orders passed by the Income Tax Appellant Tribunal, Jaipur Bench, Jaipur in the case of Income Tax Officer, Ward 6(1), Jaipur Vs. Tara Chand Jain, 2/1, Malviya Nagar, Jaipur, reported in (2015) 155 ITO 956 (JP), SCC ITAT and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable 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 cam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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