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TMI Blog2022 (1) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... this aspect and by perusing them he accepted the same. In the preceding paragraphs it is held that the view taken by the learned Assessing Officer is certainly one of the several plausible views. In this context, it is worth the referring to the decision of the Hon'ble Apex Court in the case of CIT vs. Max India Ltd. [ 2007 (11) TMI 12 - SUPREME COURT] wherein it was held that where two views are possible and the learned Assessing Officer had taken one such view, with which the learned CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue, unless the view taken by the learned Assessing Officer is unsustainable in law. Non-agreement of the Ld. PCIT with the view taken by the learned Assessing Officer, unless such a view of the learned Assessing Officer is unsustainable in law, does not afford any ground to the Ld. PCIT to revise the impugned assessment order. Accordingly, we find it difficult to sustain the order passed by the Ld. PCIT under section 263 - Decided in favour of assessee. - ITA No. 3829/Del/2018 - - - Dated:- 5-1-2022 - R.K. Panda, Member (A) And K. Narasimha Chary, Member (J) For the Appellant : Rake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the question whether the asset is a capital asset of the assessee in order to give rise to the capital gains. According to the Ld. PCIT, the assessee was never granted full rights over the property thereby making it one of the premises; that the assessee was granted only use of the premises for constructing the floor space to be allotted to IT software/ITES companies only for a limited period of time, initially 30 years, for which the assessee will pay the rent to the lessor; that in case of lease transaction, the ownership of an asset is determined by the terms of agreement between the lessor and lessee; that in terms of the lease agreement in the instant case the lessor had provided only a right to use the asset to the lessee during the period of lease, thereby retaining the rights of ownership; that under clause 6(o) assessee was never allowed to part with any proportionate land; and therefore, the treatment given by the assessee that the property in question was capital asset of the assessee and the acceptance thereof by the learned Assessing Officer was not correct. 6. On this premise, Ld. PCIT held that the assessee is not entitled to claim the indexation cost on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendable by another 60 years subject to certain conditions laid down therein, the assessee started the project in the assessment year 2008-09 and opened an office in Goa to effectively manage the business, and the assessee treated the property as capital asset in their books by showing the same under the head fixed assets . It is also not in dispute that vide the Goa (Rajeev Gandhi IT habitat-cancellation/abolition and Regulation of Allotments of Plots) Act, 2012, the allotment of plot made in favour of the assessee was also cancelled and a sum of ₹ 28,03,68,246/- was paid to the assessee towards compensation. As against this amount, assessee claimed the expenses to the tune of ₹ 19,26,71,567/- which includes indexed cost of acquisition at ₹ 30,49,54,129/- and claimed a long-term capital loss to the tune of ₹ 2,45,85,883/- and declared the same to tax under the head Long Term Capital Gain (LTCG) , which the assessing officer accepted. 10. The 1st question that falls for our consideration is whether the amount received on cancellation of the long-term lease right is capital receipt or not, and precisely the Ld. PCIT also considered the said question. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the preceding paragraphs is that it is one of the plausible views possible to be taken in this matter, and by taking a view the learned Assessing Officer cannot be said to have committed any error. It could be seen from the record that in the assessment order the assessing officer had stated that the details filed in respect of various items called for and were examined before accepting the returned income of the assessee. At page No. 3 of the paper book we find the computation of income wherein there is a reference to the long term capital gains claimed by the assessee in respect of the leasehold rights of the plot at Goa. Further to the notice dated 27/7/2015 issued under section 142(1) of the Act the assessee submitted various information by way of letters dated 30/12/2015, 9/12/2015, 8/1/2016 and 15/02/2016. In the letter dated 30/4/2015 the assessee clearly narrated the events relating to acquisition and extinction of its rights in the relevant plot at Goa. On 9/12/2015 the assessee submitted the working of the capital gains, lease deed and also the enactment under which the rights were extinguished. In the letters dated 8/1/2016 and 15/2/2016 also the assessee dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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