TMI Blog2017 (2) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(A) for affording a reasonable opportunity of showing cause against enhancement to the assessee. If he fails to afford an opportunity to the assessee, enhancement made by him is not sustainable in the eyes of law. In the light of these facts, enhancement made by the ld. CIT(A) is not sustainable as it was done without issuing a show cause against enhancement to the assessee. We, therefore, find no merit in the additions. Whether the provisions of section 50C can be invoked in respect of the lease hold property ? - As this issue is no longer res integra, there are several decisions of this Tribunal including the case of DCIT vs. Tejinder Singh [ 2012 (3) TMI 47 - ITAT, KOLKATA] , Atul G. Puranik [ 2011 (5) TMI 576 - ITAT, MUMBAI] in support of the proposition. Hon ble Delhi High Court in the case of CIT vs. Shri Kishan Das [ 2014 (2) TMI 897 - DELHI HIGH COURT] has approved this school of thought and inter alia observed strictly construed the letter of Section 50C to say that the conveyance has to be complete in respect of all entitlements to the property. In the present case, the Tribunal has upheld the valuation of the assessee. We notice that apart from the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 50C of the I.T. Act, 1961 out of the total addition of Rs. 86,70,607/- made by the Assessing Officer when the provisions of section 50C do not apply in case of transfer of leasehold rights in land or building. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in giving direction to adopt indexed cost of acquisition between Rs. 14,91,000/- and Rs. 51,59,487/- when the issue was not part of grounds of appeal raised by the assessee. 3. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in giving the above direction without confronting the issue to the assessee thereby exceeding his jurisdiction where the IT Act, 1961 does not provide the power to CIT(A) to set aside the issue. 4. It is therefore prayed that above addition made by Assessing Officer and confirmed by CIT(A) may please be deleted. b) Grievances of the Revenue :- i) On the facts and circumstance of the case and in law, the Ld. CIT(A) has erred in law in accepting the report of the DVO and reducing the addition of long term ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquisition as there was variation in the figures of cost of acquisition as per record vis-a-vis the lease deed. The learned CIT(A) gave partial relief in quantum of addition but that is not material in the present context. None of the parties satisfied by the stand so taken by the learned CIT(A). While the assessee is aggrieved of the action of the Assessing Officer being confirmed and the enhancement being made, Assessing Officer is aggrieved of the matter being remitted to his file, even though under section 250 the CIT(A) does not have any power to do so. Both the parties are in appeal before us. 5. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 6. So far as the question of enhancement by the learned CIT(A) is concerned, we find that it is undisputed position that the assessee was not put to notice with respect to the enhancement. A co-ordinate bench of this Tribunal in the case of M/s. Monga Metal Pvt. Ltd. vs. ACIT - ITA No. 326/LKW/2013 - order dated 07.08.2013 - has held that such an action of the Assessing Officer i.e. of proposing enhancement without putting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the fresh leasehold rights and the consideration payable and the residual rights was unjustified, it was argued that such difference is artificial and unsound. Learned counsel relied upon the decision of the Tribunal in Arif Akhatar Hussain v. ITO ITA/543/Mum/2010 to submit that even leasehold rights such as the present one, which comprehended entitlements in respect of land, building and other interest would fall within Section 50C and the presumption to be drawn as a consequence. The decision in Shavo Norgren (P) Ltd. v. DCIT, Circle 3(3) ITA 8101/Mum//2011 by the Mumbai Bench was also relied upon to say that the development rights would be apprehended within Section 50C. The Tribunal in this case relied upon the decisions of the Lucknow Bench in Carlton Hotel (P) Ltd. v. ACIT 2010 (35) SOT 26 (Luck); Mumbai Bench in Atul. G. Puranik v. ITO, 12(1)(1) and that of the Calcutta Bench in Dy. CIT v. Tejender Singh 19 Taxman.Com 4 In all these, the various Benches of the Tribunal appear to have strictly construed the letter of Section 50C to say that the conveyance has to be complete in respect of all entitlements to the property. In the present case, the Tribunal has upheld th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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