TMI Blog2016 (1) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the view that the learned Commissioner (Appeals) has violated provisions of rule 46A by considering additional evidence produced by the assessee without affording an opportunity to the Assessing Officer to examine the same. That being the case, without entering into the merits of legality / validity of computation of short term capital gain, we restore the matter back to the file of the Assessing Officer for deciding afresh after considering all the evidences produced by the assessee and only after due opportunity of hearing to him - Decided in favour of revenue for statistical purposes. - ITA No. 100/Mum/2013, CO No.42/Mum./2014 - - - Dated:- 9-10-2015 - Rajendra, AM And Saktijit Dey, JM For the Appellant : Shri Santosh Mankaskar For the Respondent : Shri Yougesh Thar Shri Devang K Shah ORDER Per Saktijit Dey, JM The aforesaid appeal of the Department is directed against the order dated 31st October 2012, passed by the learned Commissioner (Appeals)-34, Mumbai, for the assessment year 2009-10. The Department has raised the following effective grounds:- 1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 2,35,07,298. He, therefore, proposed to compute capital gain by invoking the provisions of section 50C of the Act. Objecting to such action of the Assessing Officer, it was submitted by the assessee that provisions of section 50C will not be applicable as the land transferred was by way of a deed of assignment and the assessee is not the owner of the land and further the land is a lease hold land. It was submitted by the assessee that the lease hold land was assigned to M/s. Scan Orbit, vide deed of assignment dated 21st May 2008, along with factory shed having constructed area of 2,205 sq.ft. The assessee also bifurcated the sale consideration of ₹ 1 crore between the building and land by apportioning an amount of ₹ 22,05,000, towards building by taking the cost of construction at ₹ 1,000 per sq.ft. The balance amount of ₹ 77,95,000, was apportioned towards assignment of lease hold land. The Assessing Officer, however, did not find merit in the submissions of the assessee. He observed that the assessee was allowed the plot of land on lease basis for a period of 60 years on fixed ground rent and on deposit of certain amounts. Though, he agreed that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support of his contention, the learned Counsel for the assessee relied on the decision of the Tribunal, Mumbai Bench inShavo Norgren Pvt. Ltd. (Ts 898-ITAT-Mum-2012) . 5. The learned Counsel for the assessee, on the other hand, strongly supporting the findings of the first appellate authority submitted that since the assessee was only having lease hold rights over the plot of land and is not the owner of the property assignment of such lease hold rights would not attract the provisions of section 50C of the Act. For such proposition, he relied upon the following case laws:- i) Atul G. Puranik v/s Income Tax Officer, 11 ITR 120 (T)(Mum.) (Trib.); ii) M/s. Jaipur Times Industries v/s ITO, ITA no.429/Jp./ 2012; and iii) Kancast Pvt. Ltd. v/s Income Tax Officer, 55 Taxman.com 171 (Pn.) 6. As far as the decision of the Tribunal, Mumbai Bench, in Shavo Norgren Pvt. Ltd. (supra), the learned Counsel for the assessee submitted that the fact involved in that case being distinguishable will not apply to the facts of the present case. He submitted that while in the case of Shavo Norgren Pvt. Ltd. (supra), the assessee has paid premium for the land, in case of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o took note of the decision of the Tribunal, Mumbai Bench in Shavo Norgren Pvt. Ltd. (supra). The other decisions relied upon by the learned Counsel for the assessee also express similar view. Therefore, as the assessee was having only lease hold rights for a period of 60 years, he cannot be considered to be the owner of the property so as to compute capital gain by adopting the market value as per the provisions of section 50C of the Act. In the aforesaid view of the matter, we agree with the decisions of the learned Commissioner (Appeals) in deleting the additions made on account of long term capital gain. Thus, ground no.1, raised by the Revenue is dismissed. 8. Ground no.2, raised by the Revenue is an off shoot of ground no.1 9. In view of our decision in ground no.1 above, this ground has become infructuous as the issue raised therein has no effect on ultimate determination of long term capital gain. 10. As far as ground no.3 is concerned, as stated earlier, the Assessing Officer determined short term capital gain in respect of transfer of factory shed at ₹ 18,42,146. The assessee computed short term capital gain on sale of factory shed by reducing from the sale ..... 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