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2016 (9) TMI 103 - ITAT MUMBAI

2016 (9) TMI 103 - ITAT MUMBAI - TMI - Applicability of section 50C - challenging the valuation done by stamp duty authorities - reference to dvo - Held that:- The assessee rightly exercised its right and invoked the provisions of Section 50C(2) of the Act to refer the matter to DVO albeit this plea was taken by the assessee for the first time on 23-12-2009 which was at the fag-end of the assessment proceedings u/s 143(3) read with Section 143(2) of the Act being getting time-barred on 31-12-200 .....

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as well the value adopted by the stamp duty authorities to arrive at the full value of consideration to compute capital gains chargeable to tax under the head ‘Income from capital gains’ under Chapter IV-E of the Act. Needless to say that the A.O. shall provide proper and adequate opportunity of being heard to the assessee in accordance with the principles of natural justice in accordance with law. - I .T.A. No.5075/Mum/2010 - Dated:- 27-7-2016 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT .....

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y the learned Assessing Officer (hereinafter called the AO ) u/s 143(3) of the Income Tax Act,1961 (Hereinafter called the Act ). 2. The grounds of appeal raised by the Revenue before Income Tax Appellate Tribunal, Mumbai (hereinafter called the Tribunal ) in the memo of appeal filed with the Tribunal read as under:- 1. On the facts and in the circumstances of the case and in law, the Id.CIT(A) has erred in deciding that section 5OC is not applicable for transfer of development rights and deleti .....

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and developers. During the course of assessment proceedings u/143(3) read with Section 143(2) of the Act, it was observed by the A.O. that the assessee has purchased and sold land and has incurred loss. The assessee purchased land for ₹ 26,35,000/- and on which the expenses for development of the same was claimed for ₹ 20,29,541/- and the conveyance deed for the said land was executed in the assessment year 2007-08. It was observed by the A.O. from the Balance Sheet as on 31st March, .....

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vide registered agreement dated 9th January, 2007 in the assessment year 2007-08. The assessee was showing the investment as advance to the owners of the land. However, this investment was taken to P&L account in the assessment year 2007-08 when it is actually sold. Since the assessee has treated the land as investment in the earlier years, It was observed by the AO that the gain/loss should have been treated as capital gain/loss. However, the assessee treated the sale of such land as busine .....

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y v. Union of India reported in (2009) 306 ITR 61 (Mad.). The assessee further submitted that the assessee is in the business of development of property of every description of land and other real estate property. The partnership firm is carrying on the above business since 1980 and has been assessed to tax as such and the Revenue has accepted the contentions of the assessee and whenever the assessee has sold land along with development rights, the same has been treated as business income. The a .....

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seven plots retained. The three plots were surrendered as they were not having marketable title and as such could not be sold/transferred freely. The intention of the assessee was to hold the asset as a current asset and not as investment. The assessee drew the attention of the Revenue to the clause 12(a) of the tax audit report wherein the assessee has shown method of valuation of closing stock employed which clearly indicates that the land was included therein and was valued at cost. The asses .....

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submitted that since the land was held as business asset, hence, the said land does not fall within the purview of capital asset as per section 2(14) of the Act. Once the asset is excluded from the definition of capital asset, the provisions of section 50C of the Act were not applicable was the submissions of the assessee. The assessee submitted that, without prejudice to the above, if the Revenue is treating the said property as capital asset, the assessee will challenge the valuation done by .....

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amp;ASSOCIATES Chartered Accountants G/722, SUNDERDHAM, RAMBAUG LANE, OFF S. V. ROAD, POISAR, BORIVALI (WEST), MUMBAI - 400 092. TEL NOS: 91-22-2808 1948,2807 1484. MOBILE: 09324371484 e-mail: rajucjoshi@mtnl.net.in.rajucjoshi@gmail.com The Assistant Commissioner of Income Tax Circle 25(3), Bandra, Mumbai Respected Sir, Re: Tax Audit Report for the year ended March 31, 2007 in the case of M/s Dattani Developments (PAN: AABFD4969Q) With reference to the above we like to draw your kind attention t .....

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e. The referred assessee has always held land for the purposes of development/sale and treated the same as business asset and not as capital asset and valued the same at cost. The above referred Tax Audit Report may be read subject to the correction/clarification as mentioned hereinabove. We hope you will find the above information in order. Thanking You, Yours Faithfully, FOR RAJU C. JOSHI & ASSOCIATES CHARTERED ACCOUNTANTS Sd/- RAJU C. JOSHI Place : MUMBAI Date : December 22, 2009 While in .....

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on, if any, from the method of valuation prescribed under section 145A, and the effect thereof on the profit or loss No deviation. The A.O. considered the reply of the assessee which was not acceptable to the AO whereby the A.O. observed that the assessee in its books of account had shown the advance paid to the owners of the property as investment only and not as stock-in-trade. The intention of the assessee whether the land is held as investment or stock-in-trade is reflected from books of acc .....

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p; partner in Dattani Development Main. The method of valuation of closing stock in trade followed by Joint Venture is as under:- 1. Work in progress at cost plus 6% 2. Land at cost Thus as per the AO the contention of the assessee is not true as is evident from the audit report. The stock mentioned in the audit report is of joint venture undertaken by the assessee. The A.O. observed the following:- On perusal of the partnership deed of the firm, the following is observed:- The business of partn .....

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of land. The assessee is only purchasing land for construction to be undertaken and hence the assessee s submission was not correct as per the observations of the AO. The assessee has not carried out any developmental work as no IOD/CC was taken for the said land to develop any project on it whereas the IOD(Intimation of disapproval) and CC(Commencement Certificate) were the preliminary requirement for developing a project in Mumbai. Thus, no development has been done to show that the assessee .....

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good as on 31.03.07, hence the remark against the said clause. The referred assessee has always held land for the purpose of development/sale and treated the same as business asset and not as capital asset and valued the same at cost. The above referred tax audit report may be read subject to the correction/clarification as mentioned herein above. The A.O. observed from the above statement of the auditors that the audit is an statutory audit and the audit report has a legal sanctity , and hence .....

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-trade as provided u/s 45(2) of the Act and a mere clarification cannot be accepted to convert the purported capital asset in to stock in trade. The assesse s reliance on the decision of Hon ble High Court of Madras High Court is also distinguishable whereby the Hon ble Court held that as per the scheme of the Act, the capital and trading asset are different and in the instant case the assessee had sold the land which was never kept as stock-in-trade and as such it is a capital asset and hence d .....

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ar was a capital asset and the tax thereon should be computed u/s 50C of the Act and the gain thereon shall be short term capital gain since the deed of confirmation was executed in the assessment year 2007-08 itself and the following computations as per section 50C of the Act was made by the AO vide assessment order dated 29-12-2009 passed by the AO u/s 143(3) of the Act, which are as under:- Name of buyer Price at which sold (Rs.) Value as per valuation authority (Rs.) Difference amount (Rs.) .....

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the following three parties:- 1. M/s Rushi Constructions ₹ 30,00,000/- 2. M/s Nitish Enterprises ₹ 10,00,000/- 3. M/s Kiran Education Trust ₹ 18,00,000/- Total ₹ 58,00,000/- It was submitted that the amount of income was offered for taxation under the head income from business after deducting the cost of property and development expenses and the A.O. erred in applying section 50C of the Act as the assessee had always admitted the income in respect of properties shown und .....

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ised to sell the flats, shops, garage etc. which might be constructed on the said properties which proved that the land was purchased only for business purpose. It was submitted that the assessee agreed to purchase the land which was having defective title and the property was occupied with tenants and assessee did not obtain vacant possession of the land when it entered into sale agreement in year 1994. It was submitted that the seller had already entered into sale agreement with M/s Sweet Home .....

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re shown under the head investment in property , the A.O. applied section 50C of the Act whereas in respect of other properties shown under the head investment the assessee admitted business income. It was submitted that the intention of the assessee is very clear from the sale agreement and it is not to be seen from the balance sheet in which the same is shown as an asset and the mere nomenclature used in the balance sheet would not alter the nature of property and the same is to be gathered fr .....

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lopment agreement only as a confirming party as the assessee had entered into agreement dated 15th August, 1994 for purchase of land from the owners. It was submitted that section 50C of the Act is applicable for sale of land or building whereas in the present case assessee entered into development agreement, therefore, section 50C of the Act is not applicable. To support its contentions, the assessee relied upon the decision of ITAT, Mumbai Tribunal in the case of Smt. Kishori Sharad Gaitonde i .....

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rved that the assessee has entered into agreement dated 15th August, 1994 for purchase of land from Mr. Rebello and others for a total consideration of ₹ 7,50,000/- wherein the agreement was unregistered. The payments made to Mr. Rebello and others by the assessee were accounted in the balance sheet under the head Investment in properties . The assessee has also registered the deed of confirmation in its name in respect of the property mentioned in the agreement dated 15.8.94 on 9th Januar .....

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perty , the assessee was admitting income under the head income from business in respect of all other properties which were shown under the head as Investment in properties including Manu Nivas and which was not disputed by the A.O.. It was observed from the agreement dated 15 August, 1994 that the property was not free from encumbrances and the seller had already agreed to sell the same land to M/s. Sweet Home and Mr. Rebello and others had executed power of attorney dated 29th December, 1979 i .....

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informed the purchasers that under the revised development plan of R ward sanctioned by the State Government in the year 1993, the portion of the property is reserved for public purpose of garden as shown washed in green on the plan annexed thereto , for secondary school as shown washed in red on the plan annexed hereto, for the purpose of housing for dishoused as shown washed in orange on the plan annexed hereto, for junction of D.P.Road and 44 wide D.P.Road as shown in burnt sienna colour on t .....

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on the terms and conditions recorded therein though they were not the absolute owners and each one has only 1/4th undivided share, right, title interest in said property and purported to put the said Sweet Home in possession thereof and the said Sweet Home has put up its Board and Security Guard on the said property. (o) In the said agreement it is provided that the vendors will hand over the original title deeds etc. to the Advocates for the said Sweet Home. However, the title deeds are not ha .....

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whatsoever from the said M/s Sweet Home; 3. The vendor has informed the purchasers as follows:- (a) The vendors and their three co-owners viz. said Rocky Rebello, Catherin Leslie Fonseca and Rita Waiter Rebello, are not in possession and occupation of the said property; (n) That there is no proper right of way and access available to the said property from the public road. The purchasers shall at their own costs and expenses obtain necessary right of way and access to the said property." I .....

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with and settle the claims of the said tenants/Kuls and the venders shall not be responsible for the same. Thus, it was observed by the learned CIT(A) from the various clauses of the agreement that the land was purchased only for the purpose of constructing flats/shops, garage etc. and not with an intention to hold it as an investment. The learned CIT(A) observed that the intention of the assessee regarding the head of income in which profit is assessable is to be gathered from various clauses o .....

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ed under the head business and there was no reason to change the same in this assessment year. The ld. CIT(A) observed that the contention of the A.O. is in-correct that the purchase of land was not mentioned in the partnership deed as it was specifically mentioned that the business of the partnership was to purchase land and construction of building thereon. Further the contention of the A.O. that assessee did not convert the investment as stock-in-trade whereas as per the audit report there wa .....

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apply to the income tax proceedings as each year is an independent year of the assessment and to maintain the consistency the same view should be adopted for the subsequent years. Thus there was no justification to bring to the tax the aforesaid business income under the head capital gains during this year. It was also observed that the assessee has entered into agreement for purchase of land on 15th August, 1994 though there were defects in the property and obtained the deed of confirmation reg .....

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d that section 50C of the Act is applicable only when the land or building or both are registered by sale deed and it would not be applicable for transfer of tenancy right even though it is a capital asset as the same is not land or building or both. Thus, the ld. CIT(A) held that Section 50C of the Act is not applicable to the facts of the case under consideration and the AO erred in taking the value adopted or assessed by the authority of a State Government / the stamp valuation for the purpos .....

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d by the learned CIT(A), the Revenue is in appeal before the Tribunal. 7. The ld. D.R. submitted that the assessee has transferred land during the previous year which was held as capital asset by the assessee since 1994 and the ld. CIT(A) erred in deciding that the section 50C of the Act is not applicable for transfer of development right and deleting the addition of ₹ 2,49,20,949/- made by the AO under the head capital gain and accepting the income offered by the assessee under the head i .....

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own consistently by the assessee in its books of accounts/Balance Sheet as Investment in properties since 1994 when it was acquired. It was a transfer of development rights which is a capital asset. The gain arising there-from on transfer was rightly treated as capital gain by the AO and not business income of the assessee by the AO. The A.O. has rightly invoked the provisions of section 50C of the Act and adopted the value as determined by stamp duly valuation authorities as full value of consi .....

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ey dated 29-12-1979 in favour of Sweet Homes and the sellers are also not in possession and occupation of the property and this property does not have approach road and also there is no right of way and access to the said property. The said land was also having tenants/kuls . He submitted that the assessee is in the business of purchase and sale of land and construction of building thereon but in the instant case no construction was ever done by the assessee since 1994 when an unregistered agree .....

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acs while the stamp duty value for the transfer of development right is ₹ 3,51,06,500/- thus there is a difference of ₹ 2,93,06,500/- between the sale consideration and the stamp duty valuation which is brought to tax by the Revenue under the head income from capital gains after providing for deductions on account of cost of acquisition/improvement etc.. It was submitted by learned DR that the ld. CIT(A) erred in accepting the gains on sale of land as offered by the assessee as busin .....

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ts executed by the assessee. The ld. DR relied on the decision of the ITAT, Mumbai in Arif Akhtar Hussain v. ITO reported in 45 SOT 257(Mum). It is submitted that the assessee vide agreement dated 17th February, 2007 entered into with Rushi Construction for transfer of development rights wherein the total consideration was ₹ 30 lacs and as against the sale consideration of ₹ 30 lacs , the stamp duty value was ₹ 1,84,13,500/- and hence the gain arising was chargeable to tax unde .....

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e Transfer of Property Act,1882 read with Section 2(47) of the Act whereby transfer took place and hence capital gain is chargeable to tax in the impugned assessment year. The said agreement with Rushi Constructions is placed at paper book page 306-685. The ld. CIT(A) erred in holding it as a business income and holding that transfer of development rights is not covered under the provisions of Section 50C of the Act . The ld. D.R. submitted that assessee made an investment in land in 1994 with a .....

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1994 when it acquired interest in the said land. The ld. D.R. relied on the assessment order of the A.O. 8. The ld. Counsel for the assessee submitted that assessee is a partnership firm. The assessee is in the business of development of properties. The development right has been transferred hence Section 50C of the Act cannot be invoked as there is no transfer of land or building or both relying on decision of ITAT, Miumbai in the case of Kishori Sharad Gaitonde (supra) . By an agreement dated .....

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nd vide agreement dated 15-08-1994 was not owner of the said land. The ld. Counsel for the assessee drew our attention to the copy of purchase agreement dated 15th August, 1994 with the owners which is placed at paper book page No. 1 to 94. The ld. Counsel submitted that there is an agreement with Kiran Patel Education Trust entered into on 19th January, 1997 by the assessee, copy of which is placed at paper book page No. 95 to 117 whereby the development right has been sold/ transferred to Kira .....

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e assessment years 1993-94, 1995-96, 2006-07 which are placed in the file, whereby the ld. Counsel showed that the assessee is regularly assessed to tax under the head income from business by the Revenue in the assessments framed u/s 143(3) of the Act and the assessee s business is of builders and developers. The assessee has placed copy of registered irrevocable General Power of Attorney dated 21-06-2005 vide paper book page 118 to 126 given by Rebello Family in favour of Mr. Manish A. Dattani .....

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rs and realtors and to undertake, execute and to purchase lands and construct building or buildings thereon and carry on the contract works or constructions of building, structure, canals, irrigation, bridges, factories, workshop, warehouses, industrial estates, factory sheds and also the work of site supervision of construction works on percentage basis etc., selling flats, shops, garages, office and other tenements or building and/or any part thereof on ownership or other basis or such other b .....

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t in land and submitted that section 50C of the Act is not applicable to the assessee as the assessee has not transferred land or building or both. The ld. Counsel for the assessee submitted that detailed written submissions were submitted and the same may be considered whereby it is submitted that assessee is not the owner of the property who acquired the development right and the learned CIT(A) has rightly brought to tax income arising from transfer of development rights as business income. Th .....

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ul G. Puranik v. ITO in ITA No. 3051/Mum/2010 for A.Y. 2006-07 order dated 13.5.2011 (2011) 58 DTR (Mumbai) (Trib) 208. Thus, it is submitted that the assessee is engaged in the business of builders and developers. The assessee is not the owner of the land. The assessee has sold the development right as part of its business and income is to be assessed as business income and provisions of Section 50C of the Act has no application . The learned counsel for the assessee has also submitted written .....

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TAT, Mumbai) 3. In the case of Chiranjeev Lal Khanna v. ITO in ITA No. 6170/Mum/2008 (ITAT, Mumbai). 4. In the case of Arlette Rodrigues v. ITO in ITA No. 343/Mum/2010 (ITAT, Mumbai) 5. In the case of ACIT v. Manubhai Sheth Larger (HUF) in ITA No. 5775/Mum/2008 (ITAT, Mumbai) and 6. In the case of Shavo Norgren (P) Ltd. v. DCIT, 33 taxmann.com 491 (ITAT, Mumbai) 10. We have considered the rival contentions and also perused the material placed on record and also gone through the case laws cited b .....

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, bridges, factories, workshop, warehouses, industrial estates, factory sheds and also the work of site supervision of construction works on percentage basis etc., selling flats, shops, garages, office and other tenements or building and/or any part thereof on ownership or other basis or such other business or business as the partners may from time to time decide. The assessee had purchased the title and interest in the land from the Rebello Family in 1994. The purchase agreement dated 15-08-199 .....

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nts under the said agreement to sale executed by Rebello family in favour of Sweet Homes in the year 1979. The Rebello family had also executed the power of attorney in 1979 in favour of Sweet Homes with respect to this land. The said agreement to sale entered into between Rebello family and Sweet Homes in the year 1979 was not yet been cancelled by the Sweet Homes . There was also no approach road as well no right to way /access with respect to the afore-said land. It was also in the new revise .....

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Government for development of the said land or construction of building thereof since interest and title in the land was acquired by the assessee in the year 1994 till the date of sale by the assessee. The assessee was fully aware that the land is having several encumbrances/defects in its title at the time of its acquisition in the year 1994 itself which duly find mentioned in the purchase agreement dated 15-08-1994. The said land was carried by the assessee in its books of accounts/Balance Sh .....

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stamp duty value adopted by the authorities of ₹ 3.51 crores. In-fact on perusal of the development agreements read along with and in conjunction with the conveyance/confirmation deeds executed by the assessee in favour of the buyers, it is clear that the assessee in-fact sold the land with all attached rights of ownership to the buyers for ₹ 58 lacs with further rights to sell, construct etc. in favour of the buyers. These development agreements along with conveyance deed/confirmat .....

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removing defects / encumbrances with which the land was then saddled with at the time of acquisition of title and interest in the land and also knowingly well that in the revised development plan of R Ward sanctioned by the State Government, the portion of the land is reserved for secondary school and residential purposes . The assessee was fully aware at the time of acquisition in the year 1994 itself that the development of land and construction of building thereon in near future is not possib .....

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marked for some portion of this land for secondary school and residential zone . Thus, we are of the considered view, the investment was made by the assessee in the year 1994 for acquiring this land from Rebello family as investment for long term basis by the assessee knowing fully well that the land is suffering from several encumbrances and defects in its title as set out above , with an objective to make long term gains on appreciation in value of land due to efflux of time and also by removi .....

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eriod of time to earn gains by way of appreciation in the value of the land. The assessee has also not demonstrated that there was any project conceived by the assessee to be undertaken on this land for construction or development nor any approvals were even applied for with the Government for development/construction on the said land despite the land being retained for almost 12-13 years by the assessee. Keeping in view the ratio of decisions cited by learned DR as detailed above and overall fa .....

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veyance executed by the assessee which are placed in paper book filed with the Tribunal. Thus, the land which was sold during the previous year by the assessee, thus keeping in view our above discussions in the light of facts and circumstances of the case, was a capital asset within the provisions of Section 2(14) of the Act and the valuation of the land as per stamp duty valuation authorities as per section 50C of the Act was rightly adopted by the AO as full value of consideration but in our c .....

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land in the instant case to be short term capital gains as confirmed/sustained by learned CIT(A) are reversed by us vide this order by holding that the gains arising from sale of this land are long term capital gains and not short term capital gains as held by authorities below as the interest and title in the land was acquired by the assessee in the year 1994 itself and held by the assessee for more than thirty six months in accordance with provisions of Section 2(29A) read with Section 2(42A) .....

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