TMI Blog2015 (4) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... n mere surmises and conjectures. The CIT(A) has reproduced in his order the written submissions put-forth by the assessee in this regard which clearly point out that assessee had given a detailed computation of manner in which the long term capital loss of ₹ 10,15,149/- in question has been worked out. There is no repudiation to the details furnished by the assessee before the CIT(A). Nevertheless, since the matter involves a factual appreciation, we deem it fit and proper to restore it back to the file of the Assessing Officer who shall verify the claim put-forth by the assessee and allow appropriate relief in accordance with law. - Decided in favour of assessee for statistical purposes. Computation of short term capital gain on sale of other depreciable assets - Held that:- Explaining the mistake committed by the lower authorities, it is pointed out that the Assessing Officer has missed out the exclusion of gain on Motor Cars of ₹ 75,536/- and has wrongly included the consideration of ₹ 10,00,000/- pertaining to Dies and moulds. The Ld. Representative pointed out that the aforesaid was a clear error on the part of the lower authorities and that there was no j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing loss on sale / transfer of dies belonging to others on which no depreciation was claimed by the appellant. The action of the AO be held as erroneous and unjustified decision of the 1st appellate authority be held as contrary to the provisions of law and facts prevailing in the case. It be held that the appellant is eligible for the claim of loss of ₹ 11,56,667/-. Just and proper relief be granted to the appellant in this respect. 4. On facts and circumstances prevailing in the case and as per provisions of the law it be held that, the AO has erred in computing short term capital gains on sale of other assets at ₹ 82,93,137/- as against ₹ 73,66,673/- computed and disclosed in the return of income. The capital gain quantified by the AO be held as erroneous and not in accordance with the facts prevailing in the case and as per provisions of law. It further be held that the order of the 1st appellate authority confirming the decision of the AO in this respect is contrary to the provisions of law and facts prevailing in the case. The appellant be granted just and proper relief in this respect. 5. The appellant be granted stay of impugned demand till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- adopted by the stamp valuation authority for the transfer of land be taken as the full value of consideration and the capital gain computed accordingly instead of the consideration of ₹ 2,35,04,000/- adopted by the assessee. The assessee resisted the aforesaid action of the Assessing Officer by pointing out that it was only holding leasehold rights in the land and that it was not the owner of the land so as to attract the provisions of section 50C of the Act. The plea of the assessee that it did not transfer land as such, as it was not owning the land was rejected by the Assessing Officer who proceeded to compute the capital gains by invoking section 50C of the Act. According to the Assessing Officer, section 50C of the Act covers the leasehold rights in the land also and therefore he proceeded to compute the capital gains on transfer of leasehold land at ₹ 4,89,89,000/- as against ₹ 1,90,11,120/- computed by the assessee in the return of income. 6. In appeal before the CIT(A), assessee reiterated its stand that section 50C of the Act was not applicable in the present case as assessee was only holding leasehold rights in the land and was not owner of the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression immovable property has also been referred to in section 2(47) of the Act which defines transfer in relation to a capital asset. It was therefore contended that section 50C of the Act, which is a special provision for computing capital gain in certain cases would include not only land as such but also leasehold rights in land, which is also a capital asset. In sum and substance, the Ld. Departmental Representative has placed reliance the orders of the of the authorities below. 9. We have carefully considered the rival submissions. Section 50C of the Act provides that if the consideration received or accruing is less than the value adopted or assessed or assessable by the stamp valuation authority of the State Government for such transfer then the value so adopted or assessed or assessable shall be deemed to be the full value of consideration and the capital gains will be computed accordingly. The phraseology of section 50C of the Act clearly provides that it would apply only to a capital asset, being land or building or both . The moot question before us is as to whether such expression would cover the transfer of a capital asset being leasehold rights in land or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the expression immovable property contained in section 269UA(d) of the Act has been referred to in section 2(47) of the Act only in relation to sub-clause (v) and (vi) thereof. Secondly, from the meaning of expression immovable property contained in section 269UA(d) of the Act, the only thing that can be inferred is that even leasehold rights in land is a capital asset. However, the said inference does not justify the inclusion of a transaction involving transfer of leasehold rights in land within the purview of section 50C of the Act. Quite clearly, section 50C of the Act applies only to capital asset being land or building or both. It does not apply to leasehold rights in the land or building. The stand of the CIT(A) that it was not necessary to mention rights in land or building specifically in section 50C of the Act, in our view, is quite misconceived. 12. Apart from the aforesaid discussion, we find that the Mumbai Bench of the Tribunal in the case of M/s Pradeep Steel Re-Rolling Mills Pvt. Ltd. (supra) has considered an identical controversy wherein it has been held that section 50C of the Act would apply only to capital asset, being land or building or both and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a stand of the lower authorities, assessee is in further appeal before us. 16. Before us, the Ld. Representative for the assessee has referred to the Annual financial statements of the assessee for the period under consideration and pointed out that Dies/moulds manufactured on behalf of the customers is appearing as a separate asset in the Schedule of Fixed Assets and no depreciation has been claimed on such an asset. By referring to page 77 of the Paper Book, it is pointed out that other Dies and moulds are also forming part of the Schedule of Fixed Assets separately on which depreciation was claimed. It was, therefore, contended that the lower authorities have failed to appreciate the facts in their proper perspective and have erred in disallowing the claim of the assessee. With regard to the contention of the CIT(A), it is pointed out that such Dies are utilized in the process of manufacture of products for the customers but they are not sold to the customers and therefore they appear as an asset in the Balance Sheet. 17. On the other hand, the Ld. Departmental Representative relied upon the orders of the authorities below in support of the stand of the Revenue. 18. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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