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TMI Blog2013 (11) TMI 1761X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The only issue in this appeal of assessee is against the order of CIT(A) in respect to value adopted by Stamp Valuation Authority despite the fact that there is a transfer of leasehold rights in flats and moreover, the AO failed to refer the matter to the Valuation Officer despite objection from the assessee. For this, assessee has raised following two grounds: 1. That the CIT(A) is not right to apply the value of ₹ 74,20,000/- adopted by the Stamp Duty Authority for the purpose of Stamp Duty without referring the same to the valuation officer as provided in Sec. 50C of the I. T. Act and the Appeal Order as framed by the CIT(A) should be quashed in full. 2. That the consideration money of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain on transfer of immovable property. The brief facts of the case are that the appellant has 1/3rd share in a flat at Park Street, Kolkata which was transferred during the year for total consideration ₹ 44,00,000/-. The AO found from the sale deed that the valuation authority adopted the fair market value of the property at ₹ 74,20,000/- for the purposes of stamp duty. It was argued at the assessment stage that unexpired period of lease was 71 years; and consequently, the fair market value of the property was ₹ 44,00,000/- only. The AO took the value adopted by the stamp valuation authority as sale consideration in view of the provisions of section 50C; and computed the Long Term Capital Gain accordingly. The Ld. AR rei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this fact is narrated and the relevant portion of the lease deed reads as under: A. Stephen Court Limited, a company within the meaning of The Companies Act 1956 having it s registered office at 23A Netaji Subhas Road Kolkata is seized and possessed of or otherwise well and sufficiently entitled to ALL THAT the entirety of premises no. 18 Park Street Kolkata Now renumbered as 18A, 18B, 18C, 18D, 18E, 18F, 18G, 18H, 18I, 18J, 18K, 18L and 18M Park Street Kolkata whereon the Building commonly known as STEPHEN COURT is situated for the residuary period of the registered lease dt. 13th September 1919 and registered lease dated 25th July 1984 executed in favour of the said Stephen Court Limited which is due to expire on or about 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l/2011 and he wants to have possession of the property and to remove the fetters of tenancy rights on the property so purchased, the tenants towards their surrendering the tenancy rights. Merely because he pays the tenants, for their surrendering the tenancy rights, at the time of purchase of property, will not alter the character of receipt in the hands of the tenant receiving such payment. What is paid for the tenancy rights cannot, merely because of the timing of the payment, cannot be treated as receipt for ownership rights in the hands of the assessee. This distinction between the receipt for ownership rights in respect of a property and receipt for tenancy rights in respect of a property, even though both these receipts are capital re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing on the record to even remotely suggest that the assessee was owner of CO No. 62/Kol/2011 and I.T.A.No: 1459/Kol./2011 Assessment year: 2008-09 the property in question. The monies received by the assessee, under the said agreement, were thus clearly in the nature of receipts for transfer of tenancy rights, and, accordingly, as the learned CIT(A) rightly holds, Section 50 C could not have been invoked on the facts of this case. Revenue s contention that the provisions of Section 50 C also apply to the transfer of leasehold rights is devoid of legally sustainable merits and is not supported by the plain words of the statute. Section 50 C can come into play only in a situation where the consideration received or accruing as a result of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 55(2)(a), should have be en taken as nil . This aspect of the matter is somewhat academic and tax neutral because admittedly CO No. 62/Kol/2011 and I.T.A. No.: 1459/Kol./2011 Assessment year : 2008-09 qualifying investment under section 54F is more than the consideration for surrender of these tenancy rights. The Assessing Officer has given a categorical finding about the quantum of qualifying investment of ₹ 1,96,03,685. In view of these discussions, we are of the considered view that the assessee did not have any taxable capital gain in respect of receipt of ₹ 1,59,50,000 on account of surrender of tenancy rights. The relief granted by the CIT(A), therefore, deserves to be upheld. 5. We find from the Coo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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