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2020 (12) TMI 160 - AT - Income TaxComputation of Long Term Capital Gains - Applicability of provisions of section 50C - CIT-A directing AO to adopt the valuation of the properties made by the DVO vis-á-vis the value of the shares transferred for the purpose of computation of Long Term Capital Gains - HELD THAT:- In the present facts, of the case we note that Company had no rights to sell superstructure. Company is permitted only to sublet or sublease or assign or nominate any portions thereof falling to its share to one or more parties in one or more than one deeds for the period of lease. We have also perused Scheme of allotment by the Esteem Arcade Pvt. Ltd., wherein, the members enrolled under this scheme would be allotted commercial space/unit There was an embargo on assessee to sell their units as it emanates from there scheme adopted by the company. Authorities below have disputed or doubted the scheme of company under which the assessee could only transfer the shares and or deposits held in the company which is subject to fulfilment of certain conditions. There is nothing on record to substantiate the allegation of intention to avoid tax in the guise of transfer of shares. Ld.CIT(A) on one hand holds that there was no transfer of Capital Asset, whereas on the other hand, refers to DVO report to allege tax avoidance by assessee. Ld.CIT(A) once rejected application of sec.50C cannot rely on DVO report to hold that assessee adopted a colourable device to avoid tax. Facts in present case are different as compared to facts considered in M/S CARLTON HOTEL PVT LTD [2017 (1) TMI 1471 - ALLAHABAD HIGH COURT]. In our view, assessee cannot blow hot and cold at the same time. There is no documentary evidence brought on record by authorities below to establish such allegation. We note that individual members cannot enjoy the units allotted in respect of shares and deposits held with the company beyond a period of 85 years starting from 11/07/2002. We also note that number of units held by a particular member is proportionate with 12 times the face value of shares as security deposit in order to get entitlement of enjoyment of the unit to be allotted. Further clause 11 of the scheme allows a member to sell or dispose of his/her shares along with deposits subject to payment of full amount due to the company towards shares/or deposit in accordance with the rules and regulations subject to Articles of Association of the company. - Decided in favour of assessee.
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