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2013 (1) TMI 372 - AT - Income TaxLong-term capital gain on transfer of leasehold rights - non consideration for transfer of building or reducing the said amount from sale consideration of rights in land - CIT (A) uphold invocation of Section 50C to the transaction of transfer of capital asset made by the appellant - assessee contested against non referring the valuation of the capital asset to the District Valuation Officer - stamp duty rate applicable on April, 2007 i.e. the date of the Memorandum of Understanding or stamp duty rate as on February 2008 - Assessee’s contented that since this plot of land was a leasehold right only, it was neither a land nor a building - Revenue stated that Assessee has substantial right in the property as can be seen from the MoU entered with M/s Unnati Technology (P) Ltd as clearly mentioned in agreement that under section 20 of the urban land (Ceiling & Regulation Act) 1976 (ULC) the competent authority has granted exemption to the Assignor to hold the excess vacant land admeasuring 10536.53 sq. meters on the terms and conditions therein - Held that:- A complete conclusion whether assessee had complete rights over the land and to what extent the valuation has to be determined u/s 50C is not to be arrived in the absence of complete details like the application made to ULC, the copy of the ULC order and further the agreements entered by M/s Unnati Technology Pvt. Ltd subsequent to construction of building with third parties for sale or assignment of rights therein. Nothing was brought on record either by assessee or by the Revenue to examine whether the said M/s Unnati Technology Pvt. Ltd has only constructed the building for development or has transferred further rights to some other parties - direct AO to obtain the complete information and examine of facts and also to make further inquiries to establish assessee’s rights over the properties. Reduction of value of the building and adjusting in the block of assets - Held that:- AO was not correct in excluding the value altogether. He has not examined the issue in its entirety. Since already observed that the building was also transferred, it is necessary for AO to examine how much property was transferred and whether the same has to be adjusted under the provisions of section 50 or under section 43(6) in the block of assets - restore the matter to the file of AO to examine this and do accordingly. The contention of cost of acquisition is also restored to the file of AO. Just because assessee has not claimed at the time of filing the return, statutory obligation of deducting the cost of acquisition cannot be brushed aside. There is information on record that assessee did pay premium at the time of acquiring property by way of lease and assessee has filed a valuation report before the AO claiming the value as on 01.04.1981 and subsequent indexation as per the provisions of law. AO is directed to examine this claim and allow the cost of acquisition as per the facts and law. The other contention about date of adopting valuation (whether date of MOU or date of Registration) has become academic as the application of Section 50C itself was restored to AO in its entirety - in favour of assessee for statistical purposes.
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