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Ms. Fleurette Marine Novelle Hatam Versus The ITO (International Taxation) 3 (1) , Mumbai and Vica-Versa

2015 (10) TMI 1889 - ITAT MUMBAI

Long Term Capital Gain on surrender of tenancy right - applicability of provisions of Sec. 50C - assessee is a non-resident individual - Held that:- Undisputedly tenancy right is a capital asset but whether transfer of such capital asset has to be looked upon in the light of the provisions of Sec. 50C of the Act. A perusal of Sec. 50C suggests that it is only for the limited purpose of computing capital gain in respect of sale of land and building, only when such sale take place Stamp duty value .....

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of Long Term Capital Gains - Decided in favour of assessee. - I.T.A. No. 7468/Mum/2013, I.T.A. No. 7178/Mum/2013 - Dated:- 19-8-2015 - SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER For The Assessee : Shri Ronak Doshi For The Revenue : Shri Randhir Kumar Gupta ORDER PER N.K. BILLAIYA, AM: These are cross appeals by the Revenue and the assessee against the very same order of the Ld. CIT(A)-10, Mumbai dt. 27.8.2013 pertaining to assessment year 2009-10. Both these a .....

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if Akhatar Hussain wherein it was held that u/s. 2(47)(v) giving of possession in part performance of a contract as per Sec. 53A of the transfer of property act is deemed to be transfer. 3. The grievances of the assessee read as under: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the Income-tax Officer (International Taxation)-TDS-3, Mumbai ( the AO ) to compute long term capital gains on the basis of Departmental Valuation Officer s (DVO) re .....

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urn was selected for scrutiny under CASS and accordingly statutory notice were issued and served upon the assessee. 4.1. The return was selected for scrutiny assessment because as per AIR information, assessee has surrendered his tenancy right by an agreement with deed of assignment of tenancy right wherein the sale consideration was mentioned as ₹ 28 lakhs in which the assessee had ½ shares which came to ₹ 14 lakhs. This property was acquired by the assessee through successio .....

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ion. The AO recomputed Long Term Capital Gain on surrender of tenancy right and made the impugned addition. 5. The assessee carried the matter before the Ld. CIT(A) and once again claimed that provisions of Sec. 50C are not applicable on surrender of tenancy right. Reliance was placed on the decision of the Tribunal in the case of ACIT Vs M/s. Munsons Textiles in ITA No. 6320/M/2010. The Ld. CIT(A) was convinced that the assessee has merely transferred tenancy right therefore provisions of Sec. .....

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ntal Representative strongly relied upon the assessment order. 8. The Ld. Counsel for the assessee once again stated that the provisions of Sec. 50C do not apply in the case of surrender of tenancy right. Reliance was placed on the decision of the Tribunal in the case of M/s. Munsons Textiles in ITA No. 6320/M/2010(Mum), Smt. Kishori Sharad Gaitonde Vs ITO in ITA No. 1561/M/09 (Mum) and DCIT Vs Tejinder Singh 50 SOT 391(Kol). 9. The Ld. Departmental Representative could not bring any distinguish .....

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cruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the .....

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ot been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court, the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 195 .....

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