ITO 4(2)(4), MUMBAI vs. L.P. CHORARIA TRADERS P.LTD, MUMBAI

This is an appeal filed by the Revenue and Cross Objection filed by the assessee against the order of CIT(A) for the assessment year 2011-12, in the matter of order passed u/s.143(3) of the IT Act.

Rival contentions have been heard and record perused.

Facts in brief are that assessee is in the business of letting out of property. During the year under consideration, assessee let out one of its properties on 2 & CO42-2016 L.P.Choraria Traders Pvt. Ltd., rent for a monthly consideration of Rs.3080/- and monthly maintenance charges of Rs.1765/- to Shri Lalit Kumar Jain. However, AO applied provisions of Section 50C by taking the stamp duty value adopted for registration of tenancy deed as full value of consideration and made an addition on account of short term capital gains amounting to Rs.82,31,000/- 4. By the impugned order CIT(A) deleted the addition after observing as under:- 2.2. I have considered the facts of the case, assessment order passed by the AO and the submission filed by the appellant. The issue is adjudicated as under :- There are basically two substantial issues involved in the impugned appeal i.e. (a) whether the creation of the tenancy by the appellant, vide agreement dated 22.10.2010 can be held to be “transfer" as envisaged under the provision of section 45(2) of the IT Act, and (b) whether such transfer can be brought to tax as Capital Gains under the deeming provision of Section 50C of the Act by taking the stamp duty value adopted for the registration of the tenancy deed as the full value of the consideration received as a result of the alienation of the asset by creation of the tenancy rights. The first issue whether there is a "transfer" of an asset or a right by the appellant is taken up first. The basic facts of the case is that appellant is the owner of the property i.e. room no.14, on 3rd floor, in the bldg. named Laxmi Bhavan situated at 158/164, Kalbadevi road, Opp. Cotton Exchange, Mumbai 400002. This property was earlier occupied on rent by the tenant Shri Nandlal Dhyanchand. The erstwhile tenant, vide letter dated 15 December 2010, has vacated the property under consideration. Rent upto 31 December 2010 has been paid by the erstwhile tenant. Thereafter the appellant has rented out the said property from 1 January 2011 for a monthly consideration of Rs.3,080 and monthly maintenance charge of Rs. 1,765, to Shri Lalith Kumar Jain. It is therefore observed that the property has been continuously let out without any break in the period. On perusal of the tenancy agreement it is observed that the landlord at all times holds exclusive use and possession of the impugned property and the tenant is only entitled for the commercial exploitation of the same, in lieu of the monthly rent paid by him. Further, it has also been clarified in the tenancy 3 & CO42-2016 L.P.Choraria Traders Pvt. Ltd., agreement that the tenant is not entitled in any way to alienate the said property in any manner either by way of letting it out or by sub letting it out or by creating any kind of assignment or transfer. Even the right of use of the property is limited to the tenant only. In fact, by way of abundant caution, the land lord has also kept with himself the right of redevelopment of the property and the tenant would give irrevocable consent for the same as mentioned in clause no. 25 of the tenancy agreement. On the perusal of the entire tenancy agreement it is seen that the tenant has been given very limited right of occupation of the property for his commercial purposes, other than that he has not been given any kind of right, title or interest in the ownership of the said property. Tenancy rights accrue to a tenant by the fact that he has been occupying a particular property for a considerable length of time. It is to be noted that tenants who have occupied a property for a number of years develop tenancy rights in the said property by virtue of the fact of occupation and also by the fact of having paid the rent for a number of years to the landlord. This right therefore is given to them by law to safeguard them from any kind of unlawful and unjust eviction by the landlord. In this case, the new tenant has merely occupied the property from 01 January 2011. On perusal of the paper book, it is seen that the appellant has submitted the rent receipts, in favour of the new tenant Mr. Lalith Kumar Jain. from January 2011 onwards. Therefore, on summation of the entire facts as narrated above, there is no "transfer" of an asset as envisaged under section 45 (2) of the IT. Act. In fact it is mere letting out of property by the appellant to a tenant. Therefore, the first issue in appeal is answered in favour of the appellant and the finding of the AO is deleted. As the first issue has been decided in favour of appellant the second issue becomes in fructuous However. without prejudice for the sake of clarity even the second issue is adjudicated. It has been submitted by the appellant that no consideration has been received by them and in this regard copies of bank statements and bank accounts have been submitted by them. The AO has also not disputed this fact hat no consideration other than the monthly rent has been received by the appellant. However, the AO has invoked section 50C and the value adopted by the stamp duty authorities of Rs.82,31,000/- has been taken as the full value of consideration received for computing the taxable capital gains in this case. Now it has to be examined whether the assessing officer was right in adopting the value as per stamp duty authorities for computing the capital gains in case of transfer of tenancy rights. Let us peruse the provisions of section 50C which states that "where the consideration received or accruing as a result of the transfer by an appellant of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority 4 & CO42-2016 L.P.Choraria Traders Pvt. Ltd., of a state government (hereinafter 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 purposes of section 48, be deemed to be full value of the consideration received or accruing as a result of such transfer." It is therefore observed that the class of asset has been specifically mentioned to be land or building or both in the section itself. Further it is observed that this is a deeming provision under the Act and its application would be limited strictly to the class of assets specified in this Act. The scope of the deeming provision under section 5OC has been discussed by the Hon'ble Mumbai Tribunal in the case of Atul G Puranik (2011-(132) ITD 0499 TBOM) where in it has been held as follows: "In view of the aforesaid judgments rendered by the Hon'ble Apex Court and that of the Hon'ble Jurisdictional High Court, it is clear that a deeming provisions can be applied only in respect of the situation specifically given and hence cannot go beyond the explicit mandate of the section. Turning to Section 50C, it Is seen that the deeming fiction of substituting adopted or assessed value by the stamp valuation authority as full value consideration is applicable only in respect of "land or building or both." If the capital asset under transfer cannot be described as "land or building", then section 5OC will cease to apply. On a similar issue regarding applicability of Section 50C in cases of transfer of tenancy rights the Hon’ble Mumbai Tribunal in the case of Munsons Textiles ITA No.6320/M/2010 have held that as under: "There is no dispute that the transfer of tenancy rights is a capita! asset and income is assessable as capital gain. The dispute is only about sale value. Appellant had shown value of Rs. 55 lacs in respect of transfer of tenancy rights relating to about 1800 sq·ft· area of [actor] godown. Capital gain has got to be computed on the basis of sale consideration shown and received by the appellant unless there was material to show that the sale consideration was understated. Market value cannot be substituted for sale consideration while computing capital gain. Only for the limited purpose of computation of capital gain in respect of sale of land and building, stamp duty value has to be substituted for sale consideration in view of specific provisions of Section 50C. Therefore, provisions of section 50C cannot be applied in case of transfer of tenancy rights in respect of land or building or both. This view is supported by the decision of the Tribunal in case of Atul G Puranik vs ITO (supra), in which it was held that right in plot of land cannot be considered as land or building or both and therefore, provision of section 50C could not be applied in case of lease hold rights in land. Further the Lucknow Bench of the Tribunal in the case of Carlton Hotel (P) Ltd vs ACIT (supra), has held that even in 5 & CO42-2016 L.P.Choraria Traders Pvt. Ltd., case of transfer of land, provisions of section 50C cannot be invoked in case the property was not registered and no stamp duty) was paid. In this case, admittedly the document was not registered and no stamp duty) has been paid. Therefore, following the aforesaid decision of the Tribunal, stamp duty value cannot be adopted for the purpose of computation of capital gain and the value shown in agreement has to be adopted as there is no material to show that the appellant had understated the sale consideration. We, therefore, see no infirmity in the order of the CIT(A) and the same is, therefore upheld." It is therefore seen that now it is a well settled principle that section 50 C, being a legal fiction, cannot be invoked for the purposes of valuation of transfer of tenancy rights. To sum up the findings are as follows: