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2020 (10) TMI 563 - AT - Income TaxCapital gain computation - right in land or building - invoking of Section 50C - As per AO consideration received by the assessee as a result of the transfer of the six properties in question was lower than the value adopted by the ‘Stamp Valuation Authority’ for the purposes of payment of stamp duty and Section 50C is to be not invoked - HELD THAT:- The expression ‘land or building’ in its coverage is quite distinct from the expression ‘any right in land or building’. The legislature, in its wisdom, has used the expression ‘land or building or both’ in Section 50C(1) and not the expression ‘any right in land or building’. Express use of one expression would exclude the other, a legal premise which is supported by the judgment of GVK Industries Ltd. [2011 (3) TMI 1 - SUPREME COURT]. In this view of the matter, in our considered opinion, the point sought to be raised by the assessee deserves to be upheld. As in MANISH TRADERS VERSUS ITO, WARD 1 (4) , GHAZIABAD. [2019 (7) TMI 1268 - ITAT DELHI] observed that assessee’s leasehold right for a period of 90 years in question is a capital asset to which provisions contained u/s 50C are not applicable. Even if for the sake of argument, it is understood to be a new plea, it does not change the complexion of the dispute, inasmuch as the subject matter of the dispute remains to be the efficacy or otherwise of the action of the Assessing Officer of invoking section 50C of the Act. More importantly, it has to be appreciated that the point of law raised by the assessee is competent to be adjudicated, based on the accepted factual position, which is available on record.Report of the DVO dated 21.6.2018 reveals that the nature of property being ‘lease hold’, has been specifically noted. Thus, in our considered opinion, there is no merit in the plea of the Ld. C.I.T. DR to prevent the assessee from pursuing the aforesaid argument before us. The defence by the C.I.T. DR, in our view, is misplaced and is hereby negated. We find that the present transaction of six properties in question does not warrant invoking of section 50C(1) of the Act as the property in question is not of the nature covered by section 50C(1) of the Act. Therefore, on this point itself, we set aside the order of the ld. Commissioner of Income Tax(A) and direct the Assessing Officer to delete the addition. - Decided in favour of assessee.
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