Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI RAJENDRA & SHRI SAKTIJIT DEY
आदेश / ORDER
शक्तिजीि दे, न्याययक सदस्य के द्वारा / PER SAKTIJIT DEY, J.M.
The aforesaid appeal of the Department is directed against the order dated 31st October 2012, passed by the learned Commissioner (Appeals)–34, Mumbai, for the assessment year 2009–10. The Department has raised the following effective grounds:–
“1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in deleting the addition of Rs.2,13,02,298/- and holding that the section 50C is not applicable on leasehold rights by ignoring the fact that lease was for a very long period i.e60 years, thus ignoring the decision of jurisdictional Hon'ble ITAT in the case of Shavo Norgren Pvt. Ltd.(Ts 898-ITAT Mum 2012). 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in admitting additional evidence in the form of Deed of Assignment in contravention to Rule 46A, despite the assessee failing to produce the documents during assessment proceedings and further erred in holding that the value of the tenancy rights be allocated @ Rs.500/- as against the cost of acquisition taken by the Assessing officer at NIL as no cost was incurred by the assessee to acquire the said rights. 3. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in admitting additional evidence in the form of purchase and sale invoices in contravention to Rule 46A, despite the assessee failing to produce the documents during assessment proceedings, and further erred in deleting the addition of Short Term Capital Gain of Rs. 18,42,146/- made by the Assessing officer when there was no increase in the actual cost of any assets falling within the block of assets.”
Shri Nadir Nazarali Dhanani 3 2. As far as ground no.1 is concerned, the facts in brief are, the assessee an individual filed his return of income for the assessment year under consideration on 6th October 2009, declaring total income of ` 28,24,185. Subsequently, he filed a revised return of income on 4th February 2011, declaring total income of ` 28,77,839. During the assessment proceedings, the Assessing Officer, on the basis of information available on record, noticed that the assessee has sold a property during the relevant previous year for a consideration of ` 2,35,07,298. He, therefore, called upon the assessee to furnish the details relating to the property sold. After verifying the details furnished by the assessee, he found that in the computation of capital gain, the assessee has worked out short term capital gain of ` 14,47,029, on sale of factory premise and lease hold land. He further noted that for computing the short term capital gain, the assessee has taken sale consideration of ` 1 crore. However, the market value of the property is ` 2,35,07,298. He, therefore, proposed to compute capital gain by invoking the provisions of section 50C of the Act. Objecting to such action of the Assessing Officer, it was submitted by the assessee that provisions of section 50C will not be applicable as the land transferred was by way of a deed of assignment and the assessee is not the owner of the land and further the land is a lease hold land. It was submitted by the assessee that the lease hold land was assigned to M/s. Scan Orbit, vide deed of assignment dated 21st
Shri Nadir Nazarali Dhanani 4 May 2008, along with factory shed having constructed area of 2,205 sq.ft. The assessee also bifurcated the sale consideration of ` 1 crore between the building and land by apportioning an amount of ` 22,05,000, towards building by taking the cost of construction at ` 1,000 per sq.ft. The balance amount of ` 77,95,000, was apportioned towards assignment of lease hold land. The Assessing Officer, however, did not find merit in the submissions of the assessee. He observed that the assessee was allowed the plot of land on lease basis for a period of 60 years on fixed ground rent and on deposit of certain amounts. Though, he agreed that no sale consideration was paid by the assessee for getting allotted the plot, however, he observed that the assessee has not shown the land in block of assets in the Balance Sheet, whereas he has only shown the factory premise at ` 3,50,464. He observed that when the assessee has shown an asset forming part of block of asset on which the depreciation has been allowed, the income arising from sale of such capital asset has to be treated as short term capital gain. The Assessing Officer observed that the lease for 60 years is a very long period and the lease is also not revocable for all practical purpose. Thus, in essence, the assessee has become owner of the subject land. On the aforesaid basis, the Assessing Officer proceeded to compute the short term capital gain on sale of factory premises at ` 18,29,120 and long term capital gain on sale of plot of ` 213,02,298. Being aggrieved of computation of both long
Shri Nadir Nazarali Dhanani 5 term capital gain and short term capital gain, the assessee preferred appeal before the first appellate authority.
As far as long term capital gain on sale of plot is concerned, the learned Commissioner (Appeals) deleted the addition made by the Assessing Officer by invoking provisions of section 50C of the Act by holding that section 50C of the Act cannot be applied in respect of lease hold rights. In this context, he relied upon the decision of the Tribunal, Mumbai Bench, in Atul G. Puranik v/s ITO, 132 ITD 499 (Mum.). The learned Commissioner (Appeals) held that the assessee was not the owner of the land was only having lease hold rights, hence, for transfer of such lease hold rights, provisions of section 50C of the Act cannot be invoked. Being aggrieved of the aforesaid addition, the Department is in appeal before us.
The learned Departmental Representative, relying upon the observations made by the Assessing Officer, submitted that the assessee having obtained the lease hold right for a long period of 60 years for all practical purposes, he is to be treated as owner of the property. Therefore, provisions of section 50C are applicable. He further submitted that the assessee has not shown the land as part of block of asset in the Balance Sheet, whereas he claimed depreciation on factory shed, therefore, the Assessing Officer was justified in computing long term capital gain by invoking provisions of section 50C
Shri Nadir Nazarali Dhanani 6 of the Act. In support of his contention, the learned Counsel for the assessee relied on the decision of the Tribunal, Mumbai Bench in Shavo Norgren Pvt. Ltd. (Ts 898–ITAT–Mum–2012).
The learned Counsel for the assessee, on the other hand, strongly supporting the findings of the first appellate authority submitted that since the assessee was only having lease hold rights over the plot of land and is not the owner of the property assignment of such lease hold rights would not attract the provisions of section 50C of the Act. For such proposition, he relied upon the following case laws:–
i) Atul G. Puranik v/s Income Tax Officer, 11 ITR 120 (T)(Mum.) (Trib.); ii) M/s. Jaipur Times Industries v/s ITO, ITA no.429/Jp./ 2012; and iii) Kancast Pvt. Ltd. v/s Income Tax Officer, 55 Taxman.com 171 (Pn.).
As far as the decision of the Tribunal, Mumbai Bench, in Shavo Norgren Pvt. Ltd. (supra), the learned Counsel for the assessee submitted that the fact involved in that case being distinguishable will not apply to the facts of the present case. He submitted that while in the case of Shavo Norgren Pvt. Ltd. (supra), the assessee has paid premium for the land, in case of the assessee no such premium has been paid. He submitted that as the assessee was not the owner of the land, he has not included in the block of asset, hence, it was not
Shri Nadir Nazarali Dhanani 7 shown in the Balance Sheet. The learned Counsel referring to the letter of allotment issued by the Municipal Corporation, Greater Mumbai, as submitted in the paper book, contended that the allotment letter clearly demonstrate that the allotment of plot was with certain terms and conditions and the assessee cannot dispose of and transfer the plot on its own. He submitted that even for the purpose of assigning his lease hold rights the assessee had to take permission from the concerned authority. In this context, he referred to the letter dated 28th January 2008 of the assessee and permission granted by Brihan Mumbai Nagar Palika on 14th February 2008. The learned Counsel submitted that in assessee’s case not only the assessee has segregated the plot and building for the purpose of capital gain but the Assessing Officer has also considered them separately. Whereas in case of Shavo Norgren Pvt. Ltd. (supra), no such segregation was made. He, therefore, submitted that the learned Commissioner (Appeals) was justified in deleting the addition.
We have considered the rival submissions and have perused the material available on record. It is evident from the assessment order, the Assessing Officer has computed long term capital gain on assignment of lease hold rights of the plot by taking the market value as per section 50C of the Act only for the reason that the lease hold rights are for 60 years, hence, for all practical purpose, the assessee should be held to be the owner of the property. However, as could be
Shri Nadir Nazarali Dhanani 8 seen from the terms of the allotment letter, the lease hold rights conferred on the assessee is on certain terms and conditions attached thereto. Therefore, it cannot be said that the assessee has absolute rights of an owner. In this context, a reference can be made to the decision of the Tribunal, Pune Bench, in Kancast Pvt. Ltd. v/s ITO, 55 Taxman.com 171, wherein the co–ordinate bench, while considering the application of provisions of section 50C, in respect of transfer of lease hold rights of 99 years, held that as the assessee is only having lease hold rights, the provisions of section 50C would not apply. It will be pertinent to observe while so deciding, the co–ordinate bench also took note of the decision of the Tribunal, Mumbai Bench in Shavo Norgren Pvt. Ltd. (supra). The other decisions relied upon by the learned Counsel for the assessee also express similar view. Therefore, as the assessee was having only lease hold rights for a period of 60 years, he cannot be considered to be the owner of the property so as to compute capital gain by adopting the market value as per the provisions of section 50C of the Act. In the aforesaid view of the matter, we agree with the decisions of the learned Commissioner (Appeals) in deleting the additions made on account of long term capital gain. Thus, ground no.1, raised by the Revenue is dismissed.
Ground no.2, raised by the Revenue is an off shoot of ground no.1
Shri Nadir Nazarali Dhanani 9 9. In view of our decision in ground no.1 above, this ground has become infructuous as the issue raised therein has no effect on ultimate determination of long term capital gain.
As far as ground no.3 is concerned, as stated earlier, the Assessing Officer determined short term capital gain in respect of transfer of factory shed at ` 18,42,146. The assessee computed short term capital gain on sale of factory shed by reducing from the sale consideration the cost of new factory premises along with WDV. By adopting this process, the assessee has computed capital gain of ` 14,47,029. The Assessing Officer, however, did not agree with the assessee on the ground that new factory premises was purchased only on 26th March 2009. The learned Commissioner (Appeals), taking into consideration the purchase invoice and sale invoice produced by the assessee as additional evidence and relying upon certain decisions, held that as per section 50, there is no requirement that for claiming deduction in respect of new asset it should be put into use for the purpose of carrying on the business. The only requirement is, it has to fall into a block of asset. He concluded as new factory premises has been brought into block of asset, the conditions of section 50 is fulfilled, hence, the value of the same has to be reduced while computing short term capital gain. Accordingly, he deleted the addition made by the Assessing Officer.
Shri Nadir Nazarali Dhanani 10 11. We have considered the rival submissions and have perused the material available on record. The specific contention of the learned Departmental Representative before us is, the learned Commissioner (Appeals) has deleted the addition by considering additional evidence which were not produced before the Assessing Officer. The learned Counsel for the assessee also agreed that certain additional evidences were produced before the learned Commissioner (Appeals) for the first time, however, he submitted that not giving opportunity to the Assessing Officer to examine these evidences had no effect on the ultimate decision of the learned Commissioner (Appeals). Therefore, the Revenue’s contention that there is violation of section 46A should not be accepted. Having considered the submissions of the parties, we are of the view that the learned Commissioner (Appeals) has violated provisions of rule 46A by considering additional evidence produced by the assessee without affording an opportunity to the Assessing Officer to examine the same. That being the case, without entering into the merits of legality / validity of computation of short term capital gain, we restore the matter back to the file of the Assessing Officer for deciding afresh after considering all the evidences produced by the assessee and only after due opportunity of hearing to him. Ground no.3, is allowed for statistical purposes.
In the result, Revenue’s appeal stands partly allowed for statistical purposes.
Shri Nadir Nazarali Dhanani 11 13. As far as assessee’s cross objection no.42/Mum./2014, is concerned, the learned Counsel for the assessee did not press the grounds raised therein. Hence, assessee’s cross objection is dismissed as “not pressed”.
To sum up, while Revenue’s appeal stands partly allowed for statistical purposes, the assessee’s cross objection stands dismissed. Order pronounced in the open Court on 09.10.2015
Sd/- Sd/- राजेंद्र शक्तिजीि दे ऱेखा सदस्य न्याययक सदस्य RAJENDRA SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER म ुंबई MUMBAI, ददनाुंक DATED: 09.10.2015 आदेश की प्रनतलरपऩ अग्रेपषत / Copy of the order forwarded to: ननधधारयती / The Assessee; (1) यधजस्व / The Revenue; (2) आमकय आमुक्त(अऩीर) / The CIT(A); (3) आमकय आमुक्त / The CIT, Mumbai City concerned; (4) पवबधगीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / The DR, ITAT, Mumbai; (5) गधर्ा पधईर / Guard file. (6) सत्मधपऩत प्रनत / True Copy आदेशधनुसधय / By Order प्रदीऩ जे. चौधयी / Pradeep J. Chowdhury वरयष्ठ ननजी सधचव / Sr. Private Secretary उऩ / सहधमक ऩंजीकधय / (Dy./Asstt. Registrar) आमकय अऩीरीम अधधकयण, भुंफई / ITAT, Mumbai