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2015 (12) TMI 45 - ITAT JAIPUR

2015 (12) TMI 45 - ITAT JAIPUR - TMI - Addition under the head long term capital gain - valuation of land - confirming the addition by applying provisions of Section 50C(1) - Held that:- Section 50C is applicable to transfer of capital asset only in respect of land or building or both and is not applicable to right in land. In the present case, the assessee has only transferred the right in land for a valuable consideration, therefore, in the opinion of the Bench, the long term capital gain cann .....

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p Valuation Authority at the time of execution of said document . Therefore, there was no evaluation of stamp duty payable on the document. Thus in our view the deeming provision of section 50C do not come in to play thereby replacing the full valuation of consideration of the document with the value calculated by the Stamp Valuation Authority / registering Authority. In the absence of any adoption or assessment by the authority of state government for the purposes of the Stamp duty in respect o .....

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r considering the above observations of this Bench and also give reasonable opportunity of being heard to the assessee after bringing of required evidences on record.

The assessee challenged in the second ground of appeal that the ld CIT(A) is allowed the appeal partly by applying DVO’s valuation in coowners case U/s 50C but Section 50C is not applicable in the case of assessee. Therefore, the order of the ld CIT(A) is reversed to that extent as observed in preceding paras. Accordingl .....

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012 passed by the ld CIT(A)-II, Jaipur for A.Y. 2008-09. The effective grounds of both the appeal are as under:- Ground of revenue s appeal:- On the facts and in the circumstances of the case and in law, the ld CIT(A) was not justified in holding that the A.O. should have referred the case for valuation to DVO on the basis of objection made by the assessee during the course of assessment proceedings ignoring the provisions of clause (b) of Section 50C(2) which puts a bar on making reference to t .....

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of Section 50C(1) in spite of the fact that there was no notified rate (i.e. DLC rate) for the land for stamp duty purpose and no registered sale deed for the transaction of sale (dated 18/04/2007) of Agriculture Land (referred as Khatli Land in the Jamabandi), situated in the bed of the demarcated Amani Shah Ka Nallah and within the catchment area of Goolar Dam, Sanganer, Jaipur. 2. Without prejudice to above, the learned Commissioner of Income Tax (Appeals)-II, jaipur has further erred in ado .....

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nt owner in the light of geographical limitations and legal restrictions regarding use of land. 2. The revenue s ground of appeal is against deleting the addition made by the Assessing Officer at ₹ 3,11,14,986/- under the head long term capital gain and both the grounds of the assessee s appeal are interlinked and against confirming the addition by applying provisions of Section 50C(1) of the Income Tax Act, 1961 (in short the Act) and restricted the addition at ₹ 1,27,07,500/- (DVO .....

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in to Shri Mahaveer Swami Grih Nirman Sahkari Samiti Ltd. for total consideration of ₹ 74,91,000/- on 18/04/2007 through an agreement to sale. The assessee had claimed his share at 50% in the property sold and the remaining 50% share belongs to other three persons. Accordingly, the assessee has declared half of the long term capital gains accrued on the above transaction in his hands. The land was not duly registered and no stamp duty was paid on the transaction. Therefore the ld Assessing .....

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Jaipur and proposed to adopt fair value of property U/s 50C at ₹ 6,97,66,620/- and also deduction U/s 54F was also proposed recomputed accordingly. The assessee filed objection before the Assessing Officer, which was forwarded to the Sub-Registrar for his comments. The Sub-Registrar again rejected the assessee s objection and valued the property at ₹ 6,97,66,420/-. The copy of valuation report was again given to the assessee for his objection. The AR of the assessee submitted the det .....

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he road level. The entire land gets submerged with water in rainy season. The area is recorded as Khatli in the government record. It does not have any civic amenities. The land was not a saleable property. 2. The Sub Registrar has applied the DLC rates of residential area while determining the above referred value of the land. 3. The Sub registrar is not competent to determine the market value of any property and it should have been determined by the Collector (Stamps), Jaipur-II. 4. Since the .....

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11 bigha @ ₹ 6,81,000/- per bigha for total consideration of ₹ 74,91,000/- to Mahaveer Swami Grih Nirman Sahkari Samiti Ltd. on 18/04/2007 through PARIPURN PRATIGYA PATRA dated 02/05/2007. The ld Assessing Officer held that any property transferred exceeding ₹ 100/- as per Transfer of Property Act, 1882 (in short the T.P. Act), the transfer of any immoveable property is required to be registered. In order to determine the market value of any immovable property for charging stam .....

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strict, all the member of Legislative Assembly of that district and all the chairmen of the local bodies of that district. The DLC decide the market value of the property lying in its jurisdiction by considering the various factors i.e. nature of land, location of land, distance from road/main road, civic amenities, land use etc. The market value so assessed by the DLC are published in local news papers and are also available on website of government. He further observed that when a transfer dee .....

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t the order of the Collector (Stamps) before the Revenue Board. As per Section 50C of the Act, where the consideration received or accruing as a result of transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by an authority or a State Govt. (Stamp Valuation Authority) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purpose of Section .....

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tent appellate authority against the market value determined by the Sub-Registrar, hence the value so determined is final. The ld AR of the assessee submitted before the Assessing Officer that word assessable was inserted in Section 50C w.e.f. 01/10/2009, which was not applicable in the case of assessee. Sale was executed on 18/04/2007 prior to the above amendment. The ld Assessing Officer observed that the Sub-Registrar has merely applied the market rate of the property, which was duly assessed .....

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nd for charging stamp duty and when transfer deed is presented before him. The assessee and purchaser of the land did not present the sale deed before the Sub-Registrar, consciously and knowingly with motive to evade stamp duty on the transfer of the land and tax on capital gain accruing on such transfer as per the provisions of Section 50C of the Act. Thus the ld Assessing Officer taken full value consideration of half property at ₹ 3,48,83,310/- and finally he calculated the long term ca .....

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n Housing Board has not undertaken any activity on the said land. Further the A.O. had not inquired from Rajasthan Housing Board as to why the land in question acquired by them for developing residential colony had not been put to such use. In fact the land so acquired could not be converted from agricultural to residential unless a notification to this effect was issued by Ministry of Urban Development, Government of Rajasthan. The process of 90B (conversion of land) was still not yet complete .....

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to residential area situated far away from the land of the appellant. The DLC rates of the plots lying in the Nallah were between ₹ 660/- to ₹ 715/- per sq. mt. as on the date of transaction. The Collector (Stamps), Jaipur-II vide her order dated 01/08/2011 had assessed the stamp duty at ₹ 12,47,34,360/- in respect of land in question as on 09/11/2010 i.e. that date on which proceedings were initiated against the assessee. It is not in dispute that the appellant had sold the l .....

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s report 20/12/2011 that the land in question was situated in the Amani Shah Ka Nallah and was around 150 metre away from the main road. He had applied rate of 660/- per sq.mt. as the land was situated in the Nallah on the basis of letter of Jaipur Development Authority No. D-8185 dated 02/02/2011 and no construction of residential nature was permissible on the said land. The width of Amani Shah Ka Nallah was taken at 135 metres considering the maximum quantity of water flow. Further the JDA had .....

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eeds. Subsections (2) and (3) of Section 50C provide further safeguard to the assessee, in the sense that if the assessee claims before the Assessing Officer that the value adopted by the stamp duty authorities exceeds the fair market value and the value so adopted or assessed for the purpose of stamp duty has not been disputed in any appeal or revision before any authority, the Assessing Officer could refer the valuation of the capital asset to the Departmental Valuation Officer. On such refere .....

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r hearing the assessee as per the statutory provisions stated supra. Therefore, the right of an assessee conferred under section 50C of the Act is a valuable statutory right available to protect his interest against any arbitrariness which may creep in while fixing the value of the capital gain and that is the safeguard given to the assessee. The said right is more effective in cases where the parties to the document have not taken any steps to defend or to initiate proceedings under Section 47A .....

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reliance is placed on the decision of the Hon ble Jodhpur Bench in the case of Meghraj Baid Vs. ITO (114 TTJ 841). Thus as per Section 50C(1), the valuation as fixed by the stamp valuation authority is taken as a bench mark, as per sub-section (2) of section 50C the bench mark can be reviewed by the reference to the valuation officer if the assessee claims that such value exceeds the fair market value. As per sub-section (3), if the valuation as arrived at by the DVO as a consequence of the refe .....

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the year 2006-07. The assessee had shown long term capital gains on sale of shops at ₹ 72,42,500/- whereas the value of the property fixed by the stamp valuation authority was ₹ 1,69,99,000/-. Similarly, in respect of another property, the assessee had shown sale consideration at ₹ 2,50,000/- as against the value fixed by stamp valuation authority at ₹ 13,80,000/-. Applying the provisions of section 50C of the Income Tax Act, the Assessing Officer adopted the sale conside .....

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tamp valuation authority was higher than the fair market value. It was also not a case whether the value adopted by the stamp valuation authority had ever been disputed by the assessee in any appeal or revision or otherwise as referred to in Section 50C(2) of the Act. In these circumstances, it was incumbent upon the Assessing Officer to have referred the matter for valuation to a Valuation Officer as provided in section 50C(2) of the Act. Since the Assessing Officer had failed to refer the matt .....

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n the case of other co-owner namely Smt. Shanta Devi Jain for the land in question. Therefore, the A.O. is bound to follow the report of the DVO for application of provisions of section 50C. However, since the DVO had assessed the value of land in question at ₹ 1,27,07,500/- in the case of other co-owner i.e. Smt. Shanta Devi Jain, the A.O. should have adopted the lower of two values i.e. the value assessed by Collector (Stamps), Jaipur-II or the value adopted by DVO following the provisio .....

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main road, civil amenities, land use etc. The ld Assessing Officer only referred this land for valuation to the Sub-Registrar for valuation under the Rajasthan Stamp Rules, 2004 but rates of the particular area s land always decided by the DLC and it is a continuous process to evaluate the rates as per the stamp rules. Therefore, the ld Assessing Officer rightly applied the valuation of land disclosed by the assessee for long term capital gain. He further argued that as per Section 2(47), this t .....

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n agreement to sale i.e. ₹ 74.91 lacs whereas as per Sub-Registrar, Sanganer, Jaipur it was valued at more than ₹ 6.97 crores. Therefore, order of the Assessing Officer may please be confirmed. 5. At the outset, the ld AR of the assessee has submitted that the reference made by the ld Assessing Officer U/s 50C is out of jurisdiction as the assessee only transferred the land to the society vide agreement to sale on 18/04/2007 relevant to A.Y. 2008-09. In Section 50C, the only referenc .....

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ITAT, Jaipur Bench, Jaipur decision in the case of Smt. Pushpa Kalra Vs. ITO in ITA No. 1130/JP/2011 for A.Y. 2003-04 dated 20/01/2012 wherein the Hon ble Bench has decided that Section 50C is not applicable on the cases where transfer made prior to this amendment, which is squarely applicable on amendment made in Section 50C i.e. word assessable has been added w.e.f. 01/10/2009. It means that the provisions are not applicable retrospectively. He further argued that the same view has been expres .....

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sessee s appeal as the A.O. gathered information regarding DLC value from registering authority and on that basis, the sale consideration in terms of provisions of Section 50C was worked out and additions were made on account of long term capital gain. He further argued that the ld CIT(A) was also not justified to adopt the DVO valuation got done in case of co-owners U/s 50C of the Act as the same is also not applicable in the case of assessee. Thus, he prayed to allow the assessee s appeal. 6. .....

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y, DLC rate are for residential area, land situated in the bed of Amani Shah Ka Nallah, catchment area of the Gooler Dam, 15-20 feet below the road level, not touching any city road, waste water of the entire Jaipur city flows in the said Nallah, sewage pipe lines of many colonies, waste water containing high chemicals and acid contents of the textile processing units located in an around Sanganer also discharged and monsoon rain water also flows in the said Nallah when he had got the price thro .....

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to the registering authority is out of jurisdiction. 6.1. From the terms and conditions of the sale document, it is clear that :- i) Khasra nos. 4222, 4618 and 4621 were already acquired by the Rajasthan Housing Board. iv) The seller has received a sum of ₹ 72,18,000/- on various dates from the buyer after adjusting the amount of ₹ 2,73,000/- (already received) during the period 30.03.1996 to 28.9.2006. 6.2. The assessee in the written submission filed before us has mentioned as und .....

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s of the Nalla has been stated as flood affected and reserved for green belt. (f) The land is classified as KHATLI in the revenue records of the State Government. The terms Khatli is used for stating that the land gets water logged and fit only for agriculture purpose. (g) The Rajasthan High Court, in the case of Abdul Rahaman vs. State of Rajasthan & Others has also directed the State to restore the status as of 15.08.1947 of all Nalla, Rivers, Tributaries etc. by removing all encroachments .....

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ssessee has got rights only for agriculture operations on the said land. This right can not be called as land owned by him. Section 50C is a deeming provision which extends only to a capital asset which is land or building or both . A deeming provision cannot be extended beyond the purpose for which it is enacted. If a capital asset cannot be described as land or building or both , Section 50C cannot apply. A right in a plot of land is neither land or building or both . The distinction between a .....

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rent than real land and building, both are two distinct assets. 6.4. In the light of above the submissions of the assessee can be summarized as under: (i) That the Hon ble Rajasthan High Court in the case of Abdul Rahaman vs. State of Rajasthan & Others has directed the State to restore the status as of 15.08.1947 of all Nalla, Rivers, Tributaries etc. by removing all encroachments. (ii) The Khasra nos. 4222, 4618 and 4621 were acquired by the Rajasthan Housing Board. (iii) As per the case o .....

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nly having right of Kastkari and his name is entered in the revenue record. He further submits that the right on the agricultural land, though is a capital asset but is neither land nor building within the meaning of ACT, therefore, in the return of income the assessee has declared half share of the long term capital gain accrued on the transfer of rights in the land. 6.7. Section 45 clearly provides that any profit or gains arising from the transfer of capital asset effected in the previous yea .....

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ax under the head Capital Gain. The capital asset has been defined in section 2(14) as under :- Section 2(14) : (14) capital asset means- (a) property of any kind held by an assessee, whether or not connected with his business or profession ; (b) any securities held by a Foreign Institutional Investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992), but does not include- (i) any stock-in-trade [ .....

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this sub-clause, "jewellery" includes- (a) ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel ; (b) precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel ; Explanation - 2. For the purposes of this clause .....

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ied area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year ; or (b) in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regar .....

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sset means the property of any kind held by the assessee whether or not connected with his business or profession. In the present case, the assessee, stated to have owned the property in the agricultural land mentioned in the agreement dated 18.04.2007. Section 50C of Income-Tax Act, 1961 (2015) 85[Special provision for full value of consideration in certain cases. 85a 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land .....

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bove provisions, it transpires that if the full value consideration shown to have been received or accruing on transfer of a capital asset being land or building or both is less than the value adopted or assessed or assessable (w.e.f. 1.10.2009) by Stamp Valuation Authority, the value so adopted etc. shall for the purpose of section 48 be deemed to be the full value of consideration received or accruing as a result of such transfer. This section 50 C was inserted by the Finance Act, 2002 with ef .....

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spect of capital assets which are land or building or both. It is thus clear that this deeming provision of section 50C will come into play only if the capital asset transferred by the assessee is a land or building or both. If, in the absence of capital asset transferred is neither the land nor building nor both, this deeming provision shall not be applicable to such transfer. 6.10. It is seen from the above mentioned statement of fact i.e. the ownership of the land is with the State Government .....

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land. 6.11. In the opinion of the Bench, the rights in land cannot be equated with the land or building. Therefore, it is concluded that section 50C is applicable to transfer of capital asset only in respect of land or building or both and is not applicable to right in land. In the present case, the assessee has only transferred the right in land for a valuable consideration, therefore, in the opinion of the Bench, the long term capital gain cannot be calculated by invoking the deeming provision .....

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pital gain to the extent of 50% in the return of income, being the half ownership rights in the property. The agreement was neither registered nor properly stamped and was merely executed on the stamp paper of ₹ 100/-. Section 50C as available ,in the rule book ,on the date of filing of the return or on the date of transfer of the land provides as under :- Section 50-C as per IT Act 2007 : Section 50C. (1) Where the consideration received or accruing as a result of the transfer by an asses .....

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sub-section (1), where- (a) the assessee claims before any Assessing Officer that the value adopted or assessed by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted or assessed by the stamp valuation authority under sub-section (1) has not 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 .....

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der sub-section (1) of section 16A of that Act. Explanation.-For the purposes of this section, Valuation Officer shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). (3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed by such authority shall be taken as the f .....

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any authority or 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 assessable) shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. (2) Without prejudice to the provisions of sub-section (1), where - (a) the assessee claims before any Assessing Officer that th .....

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d 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, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanat .....

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. (3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed for assessable by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed (or assessable) by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer. In the matter of CIT vs. R. Sugantha Ravindram, 352 ITR 488, the Hon ble Madras High Court after re .....

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ation authority and executed through agreement to sell or power of attorney. Consequently, it is made clear therein that the amendments have been made applicable with effect from October 1, 2009, and, therefore, they will apply only in relation to transaction undertaken on or after such date. The relevant portion of the circular is extracted hereunder (page 319 of 324 ITR) : "23.4. Applicability.-These amendments have been made appli cable with effect from 1st October, 2009, and will accord .....

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enue is bound by the circular issued by the Board. At this juncture, it is pertinent to note that in a decision made in the case of State of Tamilnadu v. India Cements Ltd. reported in [2011] 40 VST 225 (SC), the honourable Supreme Court has held that the circulars issued by the Revenue are binding on the Department and, therefore, they cannot repudiate that they are inconsistent with the statutory provisions. The relevant paragraphs 21 and 22 are extracted hereunder (page 237) : "21. It is .....

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d they cannot be permitted to repudiate the same on the plea that it is inconsistent with the statutory provisions or it mitigates the rigour of the law. 22. In Paper Products Ltd. v. CCE [2001] 247 ITR 128 (SC) ; [1999] 7 SCC 84), while interpreting section 37B of the Central Excise Act, 1944, which is in pari materia with section 28A of the TNGST Act, this court had held that the circulars issued by the Central Board of Excise and Customs are binding on the Department and the Department is pre .....

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;or assessable" by amending section 50C with effect from October 1, 2009, is neither a clarification nor an explanation to the already existing provision and it is only an inclusion of new class of transactions, namely, the transfers of properties without or before registration. Before introducing the said amendment, only the transfers of properties where the value adopted or assessed by the stamp valuation authority were subjected to section 50C application. However, after introduction of .....

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ovision of section 50C is not applicable to the transfer which had already taken place prior to the amendment. In the present case the assessee has transferred the capital asset for a consideration of ₹ 74,91,000/- and the document was neither registered nor evaluated for the purpose of stamp duty purposes by the Stamp Valuation Authority at the time of execution of said document . Therefore, there was no evaluation of stamp duty payable on the document. Thus in our view the deeming provis .....

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