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TMI Blog2018 (6) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land etc. - CIT(A) has made a detailed finding vide para No. 5.6 which shows that the assessee has failed to prove incurring of such cost by documentary evidence. The assessee has just supported it by evaluation report merely on information. Therefore, in absence of any information of incurring any cost of improvement deduction cannot be allowed to the assessee. No merit in the argument of the assessee that cost of improvement of ₹ 925000/- should be allowed to the assessee as deduction from the sale consideration. Applicability of section 50C - In the present case as the consideration has been passed on the same date on which the agreement of sale has been entered into, therefore, stamp duty rate as on the date of agreement shall be applied. We draw support from the order of DHARAMSHIBHAI SONANI [ 2016 (9) TMI 1259 - ITAT AHMEDABAD] wherein, it has been held that the proviso to section 50C inserted by Finance Act 2016 w.e.f 01.04.2017 applies retrospectively. Therefore, we direct ld AO to take stamp value of the property as on the date of the agreement. In view of this ground NO. 1 and 2 of the appeal of the assessee are partly allowed by holding that assets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The brief facts of the case is that assessee is a company whose original assessment was completed u/s 143(3) of the Act on 09.11.2009 determining the total income of ₹ 116860/- at the returned income. Subsequently, vide order passed u/s 263 dated 06.09.2011 the ld CIT(A), Central-II, New Delhi cancelled the above assessment. The main reason of such cancellation was that the assessee has received loan from companies where the share holders of the assessee are having substantial interest. This facts was not examined by the ld AO with respect to applicability of section 2(22)(e) of the Income Tax Act, 1961. The ld CIT(A) further noted that the assessee has sold plot No. D-244 in Sector 47, Noida for ₹ 31.50 lacs holding it to be long term capital gain. According to him same should be short term capital gain. Further the ld AO failed to examine the provisions of section 50C of the Act as the market value of the plot was ₹ 63 lacs. He further noted that improvement charges were incurred by the assessee after the date of sale of the plot. Consequent to that the assessment u/s 143(3) read with section 263 of the Act was passed on 22.03.2013 by the ld AO. He made the addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of ₹ 31.50 lacs. He stated that revision in the circle rate from ₹ 7000/- to ₹ 14000/- was after six months of the date of agreement to sale . He further stated that actual transfer deed was signed on 02.08.2006, he therefore, stated that when the agreement to sale was made it was at the circle rate and the ld AO is not justified in taking the circle rate as on the date of the transfer deed. He further referred to the decision of the coordinate bench to support his claim that amendment to section 50C(1) is curative in nature and therefore applies with retrospective effect w.e.f 01.04.2003. According to him, the benefit of such amendment which is made to remove the hardship, applies to the case of the assessee. 7. The ld DR vehemently relied upon the orders of the ld lower authorities. It was vehemently stated that when the assessee has not held the property in its name for more than 36 months, the ld AO has correctly taxed it as short term capital gain. It was further stated that the amendment in section 50C does not fulfill the requisite condition of that proviso as no payment was received at the time of agreement. With respect to the cost of improveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f provisions of section 2(42A) the capital asset must be held‟ by the assessee and not be owned‟ by the assessee for more than 36 months. The Hon'ble Delhi High Court in case of CIT Vs. Frick India Ltd 369 ITR 328 has held that capital asset held‟ is not confined to or restricted to ownership of a property. It can also consist of rights other than ownership rights in an asset, like leasehold rights, allotment rights etc. The sequitur, therefore, is that the word HELD or HOLD is not synonymous with right over the asset as an owner‟ and has to be given a broader meaning and wider meaning. Similar view has been taken by the Hon'ble madras High Court in 301 ITR 345. In the present case by obtaining the orders of the Noida Authority of transfer memorandum on 17.09.2002, the assessee got a right to get the lease hold right for 90 years from that date. It conferred the right upon the assessee to hold that particular property from that date. Such is also the view taken by the Hon‟ble Punjab and Haryana High Court in case of Madhu Kaul Vs. CIT 368 ITR 148. Therefore, the view taken by the ld AO that the assessee held property only from 05.06.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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