TMI Blog2017 (7) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... D E R PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of CIT(A)-38, Mumbai, in appeal No. CIT(A)-38/ITO 26(3)(4)/IT-287/2015-16 dated 29-07-2016. The Assessment was framed by ITO Ward-21(3)(2), Mumbai for the A.Y. 2009-10 vide order dated 26-12-2011 under section 143(3) read of the Income Tax Act, 1961 (hereinafter the Act ). 2. The only issue in this appeal of assessee is against the order of CIT(A) in holding that the transfer of capital assets and not transfer of lease holding rights attracting the provisions of section 50C of the Act. For this assessee as raised following two grounds: - 1. On the facts circumstances of the case and Commissioner of Income Tax (A)-38. Mumbai holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serving in Para 6 as under: - 6. Since the appeal in the case of M/s Heatex Products Pvt. Ltd. is pending before the High Court, in the instant case the addition of ₹ 18,03,860/- made by the AO in his order under section 143(3) dated 26-12-2011 is unaltered. This order is subject to rectification in view of the decision of the High Court in the case of M/s Heatex Products Pvt. Ltd for the assessment year 2007-08. Penatly under section 271(1)(c) is separately initiated for filing inaccurate particulars of income. 4. Aggrieved, assessee preferred the appeal before CIT(A), who after going through the terms of lease agreement and deed of assignment dated 16-04-2008 reproduced the clause of the assignments deed given at page 2 last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the above letter, it is observed that the consent has been restricted in respect of the transferee alone and it has been mentioned that in case the transferee proceeds to make any further transfer of the assignment party wholly or partially with the possession of the part of and or any part thereof the transferee will have to make a fresh application for consent of and that application will be examined as per guidelines prevailing at that time. Thus it is crystal clear that all the rights of the appellant in the aforesaid property ceased to exist after the said property was transferred to the buyer which in my opinion is a clear cut case of transfer of property wherein the title of the property has been assigned to the buyer. 5. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or before the first day of January in each and every year.. 6. The learned Counsel for the assessee stated that this is only a lease rights transfer in the property and it cannot be said the ownership who transfer the land. The learned Counsel for the assessee stated that the Hon ble Bombay High Court in the case of CIT vs. Heatex Products Pvt. Ltd. Income tax appeal No. 270 of 2014 vide order dated 26th July 2016 has considered this issue and the following question of law was for Hon ble High Court s consideration. (i) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law, in setting aside the issue of applicability of section 50C of the Act are applicable to transfer of capital asset being land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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