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2018 (11) TMI 872 - HC - Income TaxApplicability of section 50C - Capital gain - Sale of right in land/contingent right - proof of transfer of capital asset - Possession and ownership of the land - Held that:- Tribunal came to the conclusion that Section 50C of the Act of 1961 would apply if there is a transfer of land or building or both. It would not apply in absence of transfer of capital asset. In Para 6.11, the Tribunal found that assessee has transferred only right in the land for valuable consideration, thereby, did not transfer capital asset. The finding aforesaid has been recorded without proper scrutiny of facts. How the land and building or both were disclosed by the assessee in the balancesheet has not been taken note of. It is also as to how it is not transfer of capital asset. If it is reflected as capital asset, transfer thereupon for consideration would attract Section 50C of the Act of 1961 but the aforesaid aspect has not been considered by the ITAT Tribunal, Jaipur Bench, Jaipur. It is nothing but an order without elaborate finding on the issue, that too, after taking into consideration the requisite facts for its adjudication. The appellant has referred judgment of Bombay High Court IN M/S. GREENFIELD HOTELS & ESTATES PVT. LTD. [2016 (12) TMI 353 - BOMBAY HIGH COURT] where it was held that Section 50C of the Act of 1961 would not be applicable on transfer of lease hold rights of the land. Bare perusal of Section 50C of the Act of 1961 does not show that transfer of capital asset for consideration should be other than of lease hold property or khatedari land. The court cannot rewrite the provision. If analogy taken by the Bombay High Court in the case (supra) is applied in general then Section 50C of the Act of 1961 would not be applicable in majority of the cases as not it is allowed as lease hold property. Section 50C of the Act of 1961 is applicable on transfer of capital assets for consideration. The Bombay High Court has not referred as how the land was in the balancesheet. It is as a capital asset or not thus we are unable to apply the judgment of Bombay High Court in the case of M/s. Greenfield Hotels & Estates Pvt. Ltd. (supra). No question of law is involved herein.
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