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TMI Blog2022 (11) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... account of invoking provisions u/s 56(2)(vii)(b) of the Income Tax Act, 1961.'' 2.1 Brief facts of the case are that the asssessee filed the original return of income showing total income of Rs.16,79,410/- on 29-11-2014 which was processed u/s 143(1) of the Act. The case of the assessee was selected for scrutiny on the basis of CASS under complete scrutiny. The statutory notice u/s 143(2) of the Act was issued on 01-08-2015 which was duly served upon the assessee, however due to change of incumbent, the case was referred to transfer pricing officer u/s 92CA(1) on 16-09-2016 for approval of ld. Pr.CIT-2, Jaipur. In this case, the AO noticed that the assessee derives income from trading of bullion, purchase & sale of gold and silver items i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) jewellery (iv) archaeological collections (v) drawings (vi) paintings (vii) sculptures (viii) any work of art or (ix) bullions. However, the definition of 'property' does not refer to rights in land or building or both. Hence, the lease rights in land under consideration can neither be classified as ''any sum of money'' or can it be classified as ''property''. The AO thus observed that the term of 'immovable property'' is a wider term and it has always included rights in land or building or both. The AO did not find the arguments raised by the assessee satisfactory and made the addition of Rs.26,10,078/- by taking the difference of stamp value of Rs.1,23,10,078 minus sales consideration of Rs.97,00,000/-. Thus the AO made addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T is concerned, I find that Hon'ble ITAT in decision of Jaipur Times Industries held that section 50C cannot apply to leasehold rights in land and therefore, they deleted addition under section 50C. Thus, in that case, only leasehold right in land was sold. The facts of this case are different. Here, the assessee purchased the land allotted by RIICO to buyer alongwith building constructed thereon. The purchase consideration is for both and cannot be segregated. Thus this, constitutes, purchase of land and building by appellant, therefore, provisions of section 56(2)(vii)(b) are clearly applicable. Accordingly, addition made by the Assessing Officer is confirmed. This ground of appeal is dismissed. 3.In the result, the appeal is dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Page No. 10-11 of II Paper Book) to the seller granting permission to transfer the lease hold rights of the property subject to compliance of certain terms and condition which were to be complied with by the SELLER but he had not complied, such as construction of Rain Water Harvesting System (Condition No. 7), Clearance of Old Outstanding dues of the Seller to RIICO (Condition No. 8), plantation of trees (Condition No. 10). On perusal of terms and condition of the letter of permission for transfer of lease hold right in favor of the assessee , the assessee did not retain the exclusive right of ownership over the land. It is only the right to use the land subject to terms and conditions imposed by RIICO. The AO without considering the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itly observed as under:- ''4. The first and foremost issue that arise for our apt adjudication in this backdrop herein is as whether such leasehold rights are covered under the statutory definition of ''any immovable property'' u/s 56(2)(vii)(b) as defined in Explanation (d)(i) as ''being land or building or both''. We note that the legislature has used an identical express in Section 50C(1) of the Act wherein various judicial precedents (2017) 77 taxmann.com 308 (Bom), CIT vs Greenfields Hotels and Estates Pvt. Ltd. (2015), 55 taxmann.com (2017) (Pune) Kancast Pvt. Ltd. vs ITO, (2011) 4 SCC 36 (SC) GVK Industries Ltd. vs ITO and 2020-TIOL-307-Kolkata hold that such a lease hold right does not come under either of the twin specified categ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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