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TMI Blog2014 (2) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration at Rs. 58,98,653/- against the actual sale consideration of Rs. 42.25 lacs. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by taking the sale consideration at Rs. 42.25 lacs only as declared by the assessee. 2. In the facts and circumstances of the case and in law the ld. CIT(A) has erred in refusing the refer the matter to the Valuation Officer. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by referring the matter to Valuation Officer. 2.1 During the course of hearing, the ld. AR of the assessee has not pressed the Ground No.1. 2. Hence, the same is dismissed being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeming fiction u/s (1) shall be activated to substitute such adopted or assessed or assessable value as full value of consideration received or accruing as a result of such transfer. As per the assessee, the deeming fiction cannot be extended beyond the purpose for which it is enacted. Since the ld. CIT(A) has confirmed this action of the AO, the assessee has raised Ground No. 1.1 before us. 3.2 We have heard the rival submissions and have carefully perused the entire record. Undisputedly, the assessee is a lessee in the leasehold land which was sold to RMPL. For ready reference, we are extracting the submissions made by the ld. AR in the written submission which is as under:- ''1. Your honour, The assessee had taken a plot of land on le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter to the valuation officer. 8.3 I have carefully perused the order of the AO and the submission of the AR and reject the submission as he has not given any evidence or cogent arguments to support his claim that the value taken by the stamp valuation authority exceeded the fair market value of the property Therefore, his request is rejected and the decision of the AO to take the value of the property at Rs. 58,98,653/- u/s 50C is upheld." 4. Your honour, the assessee had taken a plot of land from Rajasthan State Industrial & Mineral Development Corporation in the year 1979 on lease for 99 years commencing from 21.01.1979. Kindly see at page no. 23 to 32, of the paper book. It is also the fact that the company has paid Economic Ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital asset under transfer cannot be described as 'land or building or both', then section 50C will cease to apply. 6. Your honour, from the facts of this case narrated above, it can be seen that the assessee was allotted lease right in the Plot for a period of ninety nine years, which right was further assigned to 'Rochees Malls Pvt. Ltd (RMPL).' . It is axiomatic that the lease right in: a plot of land are neither 'land or building or both' as such nor can be included within the scope of 'land or building or both. 7. Your honour, the distinction between a capital asset being 'land or building or both' and any 'right in land or building or both' is well-recognized under the I.T. Act. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the full value of consideration in the instant case be allowed to be taken at sale price, which is Rs. 42,25,000/-. 8. Your honour, the assessee was a lessee in the leasehold land which was sold to RMPL. The Ld. AO has treated the assessee a seller of leasehold land apparently because the assessee was a party to the sale deed. Your honour it is not necessary that consideration paid by the buyer of a leasehold land, at the time of buying the leasehold land, must only relate to ownership rights. In the case of tenanted property, while the buyer of property pays the owner of property for ownership rights, he may also have to pay, when he wants to have possession of the property and to remove the fetters of tenancy rights on the property so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy rights and thus Section 50C could not have been invoked on the facts of this case. Therefore, it is sine qua non for application of Section 50C that the transfer must be of a 'capital asset, being land or building or both', but then a leasehold right in such a capital asset cannot be equated with the capital asset per se. Therefore, when a leasehold right in ''land or building or both'' is transferred, the provision of Section 50C cannot be invoked. 10. Your honour kindly see page no. 4 of paper book, paragraph 1 which reveals that assessee transfer only interest in lease hold land. 11. Your honour, the AR relied on the following decisions. 11.1 in DCIT vs. Tajinder Singh (ITAT Kolkata) March 1st, 2012 it has been held that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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