TMI Blog2012 (4) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... Addl. CIT represented on behalf of the Revenue. 2. The assessee raised following grounds of appeal: 1. The Order of the Learned Commissioner of Income Tax - Chennai - II u/s 263 is vitiated in law and barred by limitation. The learned CIT erred in passing a revision order after a expiry of Two years from the end of the financial year. 2. Then Learned Commissioner of Income Tax - Chennai - II erred in law in passing an order of revision when the assessment order is neither erroneous nor prejudicial to the interest of the revenue. 3. The Learned Commissioner of Income Tax -II erred in law in treating the transaction of lease as transaction of sale. The Learned Commissioner of Income Tax ought to have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is neither erroneous nor prejudicial to the interest of the Revenue. 6. We have gone through the assessment order passed under section 143(3) on 04.12.2008 by the Assessing Officer and perused the materials available on record. We have noticed that the Assessing Officer did not discuss in the assessment order about the assessee letting out residential property and receiving lease rental income from such property. We also did not see that the assessee has furnished any such information to the Assessing Officer during the course of assessment proceedings. Therefore, in the absence of either furnishing of details regarding lease transaction during the course of assessment proceedings or the discussion by the Assessing Officer while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement between the assessee and M/s. P.G. Foils Ltd. is for letting out of a two bed room flat to be used only for the residential purpose by the tenant and is only a simple lease agreement and there is no transfer of right in the property to the lessee. Therefore, it is submitted that the CIT is not correct in directing the Assessing Officer to treat the lease agreement as transaction of sale and compute the capital gains thereon. 9. The ld. DR supported the order of the CIT. 10. We have heard both the sides, perused the materials available on record. We have gone through the order of the CIT passed under section 263. The CIT, in his order held that by entering into lease agreement, the assessee had effected a transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed are as under: Lease deed executed on 01.06.2005 a) To PAY the said lease rent charges and interest free security deposit at the time and in the manner aforesaid. b) All maintenance charges of the society, power consumption charges as per bill of BEST and all other Government rates, taxes and charges applicable as on today or may be put on in future regarding this property will be paid by the USER. c) TO USE the demised premises for the purpose of RESIDENTIAL USE only and not for any other purposes whatsoever. d) TO KEEP the interior of the demised premises and the OWNER S fittings and fixtures therein in good and tenantable condition (reasonable wear and tear and damage by fire, floods, earthquake, tempes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. THAT the OWNER intended to give the said premises on lease only and the USER has taken the said premises on lease only. II. THAT the Clause No. VIII, IX X on page No.4 may be treated as cancelled and deleted from the original Articles of Lease Agreement dated 1st June, 2005. III. THAT the interest free Security Deposit will have to be refunded by the OWNER to the USER on termination of this agreement by either party or on expiry of Lease Agreement. IV. THAT the word 99 years on page No.2 in para 2, clause No. I III and in clause No. VII on page No.3 should be read as 11 (eleven) years. V. THAT this amendment to the Articles of Lease Agreement will be treated as part and parcel of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease was capital asset within the meaning of section 2(14) of the Act. Similarly, the other two decisions relied on by the CIT in the case of CIT v. C.F. Thomas (supra) and CIT v. Sujatha Jewellers (supra) are distinguishable on facts. 15. In view of the above, we are of the considered opinion that the CIT fell in error in holding that the lease transaction is a transaction of sale and directing the Assessing Officer to compute the capital gains arising out of the lease agreement dated 01.06.2005. Therefore, we allow the grounds of appeal of the assessee on this issue and set aside the order of the CIT passed under section 263 of the Act. 16. In the result, the appeal of the assessee is partly allowed. Order pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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