Kancast Pvt. Ltd., Pune V. ITO, Wd. 9(3), Pune

ITA 1265/PUN/2011

• Counselvise Citation: 126524514 RSA 2011
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 02-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 03-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Depreciation; Opportunity of being heard
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.1265/PN/2011 (ASSESSMENT YEAR 2006-07) KANCAST PVT. LTD., C/O SHAH KHANDELWAL JAIN & ASSOCIATES CHARTERED ACCOUNTANTS, LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESLEY ROAD, NEAR RTO, PUNE 411 001. PAN : AAACK6778N . APPELLANT VS. INCOME TAX OFFICER, WARD 9(3), PUNE. . RESPONDENT ASSESSEE BY : MR. NILESH KHANDELWAL DEPARTMENT BY : MR. RAJESH DAMOR DATE OF HEARING : 02-12-2014 DATE OF PRONOUNCEMENT : 19-01-2015 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DA TED 21.07.2011 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 31.12.2008 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CA SE AND AS PER PROVISIONS OF THE LAW AND SCHEME & NORMS IT BE HELD THAT, THE ASSESSMENT ORDER COMMUNICATED AND SERVED TO THE APPELLANT AFTE R 31 ST DEC, 2008 IS BARRED BY LIMITATION AND IS NOT EFFECTIVE & OPERATIVE IN T HE EYES OF LAW. THE ORDER SERVED ON THE APPELLANT AFTER PRESCRIBED TIME LIMIT BE SET ASIDE. 2. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CAS E AND AS PER PROVISIONS OF THE LAW IT BE HELD THAT, THE AO HAS E RRED IN TAXING THE AMOUNT OF RS.4,89,89,000/- AS LONG TERM CAPITAL GAINS ON TRAN SFER OF LEASEHOLD RIGHTS IN RESPECT OF MIDC LAND BY APPLYING PROVISIONS OF SE CTION 50C AS AGAINST LONG TERM CAPITAL GAIN OF RS.1,90,11,120/- DECLARED AND ADMITTED BY THE APPELLANT UNDER THIS HEAD. THE ACTION OF THE AO BE HELD AS E RRONEOUS, UNJUSTIFIED ITA NO.1265/PN/2011 AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS PRE VAILING IN THE CASE. IT FURTHER BE HELD THAT THE DECISION OF THE 1ST APPELLATE AUTH ORITY CONFIRMING THE DECISION OF THE AO ON THIS ISSUE IS CONTRARY TO THE PROVISIO NS OF LAW AND FACTS PREVAILING IN THE CASE. THE APPELLANT BE GRANTED JUST AND PRO PER RELIEF AS PER PROVISIONS OF LAW & FACTS PREVAILING IN THE CASE. 3. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CAS E AND AS PER PROVISIONS OF THE LAW IT BE HELD THAT, THE AO HAS E RRED IN NOT ALLOWING THE CLAIM OF RS.11,56,667/- BEING LOSS ON SALE / TRANSFER OF 'DIES BELONGING TO OTHERS' ON WHICH NO DEPRECIATION WAS CLAIMED BY THE APPELLA NT. THE ACTION OF THE AO BE HELD AS ERRONEOUS AND UNJUSTIFIED & DECISION OF THE 1ST APPELLATE AUTHORITY BE HELD AS CONTRARY TO THE PROVISIONS OF LAW AND FA CTS PREVAILING IN THE CASE. IT BE HELD THAT THE APPELLANT IS ELIGIBLE FO R THE CLAIM OF LOSS OF RS.11,56,667/-. JUST AND PROPER RELIEF BE GRANTED TO THE APPELLANT IN THIS RESPECT. 4. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CAS E AND AS PER PROVISIONS OF THE LAW IT BE HELD THAT, THE AO HAS E RRED IN COMPUTING SHORT TERM CAPITAL GAINS ON SALE OF OTHER ASSETS AT RS.82,93,1 37/- AS AGAINST RS.73,66,673/- COMPUTED AND DISCLOSED IN THE RETURN OF INCOME. THE CAPITAL GAIN QUANTIFIED BY THE AO BE HELD AS ERRONEOUS AND NOT IN ACCORDANCE WITH THE FACTS PREVAILING IN THE CASE AND AS PER PROVISI ONS OF LAW. IT FURTHER BE HELD THAT THE ORDER OF THE 1ST APPELLATE AUTHORITY CONFIRMING THE DECISION OF THE AO IN THIS RESPECT IS CONTRARY TO THE PROVISIONS OF LAW AND FACTS PREVAILING IN THE CASE. THE APPELLANT BE GRANTED JUST AND PROPER RELIEF IN THIS RESPECT. 5. THE APPELLANT BE GRANTED STAY OF IMPUGNED DEMAND TILL THE DECISION OF THE APPEAL, IN THE ALTERNATIVE THE APPE AL BE TAKEN FOR ADJUDICATION FOR EARLY HEARING. 3. IN SO FAR AS GROUND OF APPEAL NO.1 IS CONCERNED, THE SAME HAS NOT BEEN PRESSED AT THE TIME OF HEARING AND ACCORDINGLY IT IS DISMISSED AS NOT PRESSED. 4. IN RELATION TO THE GROUND OF APPEAL NO.2, THE GR IEVANCE OF THE ASSESSEE IS AGAINST THE MANNER IN WHICH INCOME UNDER THE HEA D CAPITAL GAINS HAS BEEN COMPUTED BY THE INCOME-TAX AUTHORITIES. BRIEFLY PU T, THE RELEVANT FACTS ARE THAT THE ASSESSEE TRANSFERRED FACTORY LAND, BUILDING AND SHED IN PIMPRI INDUSTRIAL AREA IN FAVOUR OF RISHAP INDUSTRIES PVT. LTD. FOR A CONSIDERATION OF RS.3,12,04,000/- FOR LAND AND BUILDING AND RS.47,96 ,000/- FOR OTHER FIXED ASSETS. OUT OF THE CONSIDERATION OF RS.3,12,04,000 /- FOR LAND AND BUILDING, THE ASSESSING OFFICER ACCEPTED ASSESSEES CONTENTIONS T HAT THE VALUE OF CONSIDERATION FOR BUILDING BE ADOPTED AT RS.77,00,0 00/-. THUS, ASSESSEE HAD ADOPTED THE VALUE OF CONSIDERATION FOR THE TRANSFER OF LAND AT RS.2,35,04,000/- ITA NO.1265/PN/2011 IN ITS COMPUTATION OF INCOME. THE ASSESSING OFFICE R NOTED THAT THE VALUE OF LAND AND BUILDING ADOPTED BY THE REGISTERING AUTHOR ITY FOR THE PURPOSES OF STAMP DUTY VALUATION BASED ON THE READY RECKONER RA TES OF THE STATE GOVERNMENT WAS RS.5,75,93,000/-. AS A RESULT, THE STAMP DUTY VALUE OF THE CONSIDERATION FOR LAND WAS PROPOSED TO BE TAKEN BY THE ASSESSING OFFICER AT RS.4,98,93,000/- (RS.5,75,93,000/- MINUS RS.77,00,000/-). THE ASSESSING OFFICER SHOW-CAUSED THE ASSESSEE ON THE STRENGTH OF THE PROVISIONS OF SECTION 50C OF THE ACT AS TO WHY THE FULL VALUE OF CONSIDER ATION FOR TRANSFER OF LAND BE NOT TAKEN AT RS.4,98,93,000/- INSTEAD OF RS.2,35,04 ,000/- TAKEN BY THE ASSESSEE. 5. SECOND 50C OF THE ACT CONTAINS SPECIAL PROVISION S FOR ASCERTAINING THE FULL VALUE OF CONSIDERATION FOR THE PURPOSES OF COM PUTING CAPITAL GAINS ON TRANSFER OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH. IT PROVIDES THAT IF THE CONSIDERATION RECEIVED OR ACCRUING IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY OF T HE STATE GOVERNMENT FOR SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSABLE S HALL BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION AND THE CAPITAL GAINS W ILL BE COMPUTED ACCORDINGLY. ON THE STRENGTH OF 50C OF THE ACT, THE ASSESSING OF FICER INFERRED THAT THE VALUE OF RS.4,98,93,000/- ADOPTED BY THE STAMP VALUATION AUTHORITY FOR THE TRANSFER OF LAND BE TAKEN AS THE FULL VALUE OF CONSIDERATION AN D THE CAPITAL GAIN COMPUTED ACCORDINGLY INSTEAD OF THE CONSIDERATION OF RS.2,35 ,04,000/- ADOPTED BY THE ASSESSEE. THE ASSESSEE RESISTED THE AFORESAID ACTI ON OF THE ASSESSING OFFICER BY POINTING OUT THAT IT WAS ONLY HOLDING LE ASEHOLD RIGHTS IN THE LAND AND THAT IT WAS NOT THE OWNER OF THE LAND SO AS TO ATTR ACT THE PROVISIONS OF SECTION 50C OF THE ACT. THE PLEA OF THE ASSESSEE THAT IT D ID NOT TRANSFER LAND AS SUCH, AS IT WAS NOT OWNING THE LAND WAS REJECTED BY THE A SSESSING OFFICER WHO PROCEEDED TO COMPUTE THE CAPITAL GAINS BY INVOKING SECTION 50C OF THE ACT. ACCORDING TO THE ASSESSING OFFICER, SECTION 50C OF THE ACT COVERS THE ITA NO.1265/PN/2011 LEASEHOLD RIGHTS IN THE LAND ALSO AND THEREFORE HE PROCEEDED TO COMPUTE THE CAPITAL GAINS ON TRANSFER OF LEASEHOLD LAND AT RS.4 ,89,89,000/- AS AGAINST RS.1,90,11,120/- COMPUTED BY THE ASSESSEE IN THE RE TURN OF INCOME. 6. IN APPEAL BEFORE THE CIT(A), ASSESSEE REITERATED ITS STAND THAT SECTION 50C OF THE ACT WAS NOT APPLICABLE IN THE PRESENT CA SE AS ASSESSEE WAS ONLY HOLDING LEASEHOLD RIGHTS IN THE LAND AND WAS NOT OW NER OF THE LAND. AS PER THE ASSESSEE, IT DID NOT TRANSFER ANY LAND BECAUSE IT W AS NOT OWNING THE LAND AND THEREFORE TRANSFER OF LEASEHOLD RIGHTS IN LAND DID NOT INVITE THE PROVISIONS OF SECTION 50C OF THE ACT. IN SUPPORT OF THE PROPOSIT ION, ASSESSEE ALSO RELIED UPON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUN AL IN THE CASE OF ATUL G. PURANIK VS. ITO VIDE ITA NO.3051/MUM/2011 DATED 13. 05.2011. THE CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFIC ER AND AFTER CONSIDERING THE RIVAL STANDS CAME TO CONCLUDE THAT THE ASSESSING OF FICER WAS JUSTIFIED IN APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT E VEN IN RESPECT OF THE TRANSFER OF LEASEHOLD RIGHTS IN LAND AND THEREFORE HE REJECTED THE PLEA OF THE ASSESSEE. ON ACCOUNT OF THE AFORESAID, ASSESSEE IS IN FURTHER APPEAL BEFORE US. 7. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSESS EE HAS VEHEMENTLY POINTED OUT THAT THE LOWER AUTHORITIES HAVE ERRED I N INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT IN THE PRESENT CASE BECAUSE THE IMPUGNED TRANSFER DID NOT INVOLVE TRANSFER OF LAND AND THEREFORE SECTION 50C OF THE ACT IS NOT ATTRACTED. IN THIS CONTEXT, THE LD. REPRESENTATIVE HAS REFERRED TO THE PROVISIONS OF SECTION 50C OF THE ACT TO POINT OUT THAT THEY CO VER CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH AND NOT LEASEHOLD RIGHTS IN LAN D OR BUILDING. THE PLEA OF THE APPELLANT IS THAT THE WORD LAND USED IN SECTION 50C OF THE ACT DOES NOT INCLUDE LEASEHOLD RIGHTS IN LAND AND THAT THE SAID EXPRESSION COVERS ONLY SUCH LANDS WHICH ARE OWNED BY AN ASSESSEE AS SUCH. IN S UPPORT OF HIS PROPOSITION, ITA NO.1265/PN/2011 THE LD. REPRESENTATIVE HAS RELIED UPON THE FOLLOWIN G DECISIONS OF THE TRIBUNAL :- (I) M/S HEATEX PRODUCTS PVT. LTD. VS. ACIT, ITA NO. 8197/MUM/2010 DATED 24.07.2013; (II) SMT. KISHORI SHARAD GAITONDE VS. ITO, ITA NO.1 561/MUM/2009 DATED 27.11.2009; (III) ITO VS. M/S PRADEEP STEEL RE-ROLLING MILLS PV T. LTD., ITA NO.341/MUM/2010 DATED 15.07.2011; (IV) ITO VS. SHRI YASIN MOOSA GODIL, ITA NO.2519/AH D/2009 DATED 13.04.2012; AND, (V) M/S JAIPUR TIMES INDUSTRIES VS. ITO, ITA NO.429 /JP/2012 DATED 26.02.2014. 8. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE APPEARING FOR THE REVENUE HAS POINTED OUT THAT THE EXPLANATION BE LOW SECTION 269UA(D) OF THE ACT CLEARLY PROVIDES THAT IMMOVABLE PROPERTY WO ULD INCLUDED WITHIN ITS MEANING EVEN LAND AND ANY RIGHTS THEREIN. IT HAS A LSO BEEN POINTED OUT THAT THE SAID MEANING OF EXPRESSION IMMOVABLE PROPERTY HAS ALSO BEEN REFERRED TO IN SECTION 2(47) OF THE ACT WHICH DEFINES TRANS FER IN RELATION TO A CAPITAL ASSET. IT WAS THEREFORE CONTENDED THAT SECTION 50C OF THE ACT, WHICH IS A SPECIAL PROVISION FOR COMPUTING CAPITAL GAIN IN CER TAIN CASES WOULD INCLUDE NOT ONLY LAND AS SUCH BUT ALSO LEASEHOLD RIGHTS IN LAND , WHICH IS ALSO A CAPITAL ASSET. IN SUM AND SUBSTANCE, THE LD. DEPARTMENTAL REPRESENTATIVE HAS PLACED RELIANCE THE ORDERS OF THE OF THE AUTHORITIE S BELOW. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. SECTION 50C OF THE ACT PROVIDES THAT IF THE CONSIDERATION RECEIVED OR ACCRUING IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAM P VALUATION AUTHORITY OF THE STATE GOVERNMENT FOR SUCH TRANSFER THEN THE VAL UE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION AND THE CAPITAL GAINS WILL BE COMPUTED ACCORDINGLY. THE PH RASEOLOGY OF SECTION 50C OF THE ACT CLEARLY PROVIDES THAT IT WOULD APPLY ONLY T O A CAPITAL ASSET, BEING LAND ITA NO.1265/PN/2011 OR BUILDING OR BOTH . THE MOOT QUESTION BEFORE US IS AS TO WHETHER SUC H EXPRESSION WOULD COVER THE TRANSFER OF A CAPITAL AS SET BEING LEASEHOLD RIGHTS IN LAND OR BUILDING. THERE CANNOT BE A DISPUTE TO THE PROPOSITION THAT THE EXPRESSION LAND BY ITSELF CANNOT INCLUDE WITHIN ITS FOLD LEASEHOLD RIGHT IN LAND ALSO. OF-COURSE, LEASEHOLD RIGHT IN LAND IS ALSO A CAPITAL ASSET AND WE FIND NO FAULT WITH THIS STAND OF THE REVENUE. SO HOWEVER, EVERY KIND OF A CAPITAL ASSET IS NOT COVERED WITHIN THE SCOPE OF SECTION 5 0C OF THE ACT FOR THE PURPOSES OF ASCERTAINING THE FULL VALUE OF CONSIDER ATION. IN-FACT, THE HEADING OF SECTION ITSELF PROVIDES THAT IT IS SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES . THEREFORE, THERE IS A SIGNIFICANCE TO THE EXPRES SION A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH CONTAINED IN SECTION 50C OF THE ACT. THE SIGNIFICANCE IS THAT ONLY CAPITAL ASSET B EING LAND OR BUILDING OR BOTH ARE COVERED WITHIN THE SCOPE OF SECTION 50C OF THE ACT, AND NOT ALL KINDS OF CAPITAL ASSETS. 10. IN-FACT, THE MUMBAI BENCH OF THE TRIBUNAL IN TH E CASE OF ATUL G. PURANIK (SUPRA) WHICH WAS PRESSED INTO SERVICE BY THE ASSES SEE BEFORE THE LOWER INCOME-TAX AUTHORITIES, CLEARLY BRINGS OUT THE AFOR ESAID PROPOSITION. IN OUR VIEW, THE SAID DECISION OF THE TRIBUNAL HAS BEEN WR ONGLY DISREGARDED BY THE CIT(A). THE PLEA OF THE CIT(A) IS BASED ON THE MEA NING OF EXPRESSION IMMOVABLE PROPERTY CONTAINED IN EXPLANATION BELOW SECTION 269UA(D)(I) OF THE ACT. ACCORDING TO THE CIT(A), THE EXPLANATION BELOW SECTION 269UA(D)(I) OF THE ACT MAKES IT CLEAR THAT THE LAND, BUILDING, ETC . INCLUDED IN THE PHRASE IMMOVABLE PROPERTY ALSO INCLUDES ANY RIGHTS THERE IN. THE CIT(A) HAS CO- RELATED THIS TO SECTION 2(47) OF THE ACT WHICH DEFI NES THE EXPRESSION TRANSFER IN RELATION TO CAPITAL ASSET. AS PER THE CIT(A), S ECTION 2(47) OF THE ACT CONTAINS A REFERENCE TO THE MEANING OF THE IMMOVABLE PROPER TY CONTAINED IN SECTION 269UA(D) OF THE ACT AND THEREFORE TRANSFER IN RELAT ION TO A CAPITAL ASSET DEFINED IN SECTION 2(47) OF THE ACT WOULD INCLUDE WITHIN IT S PURVIEW TRANSFER OF A CAPITAL ITA NO.1265/PN/2011 ASSET, BEING LEASEHOLD RIGHTS IN LAND ALSO. UPTO T HIS STAGE, THERE CAN BE NO QUARREL WITH THE STAND OF THE CIT(A). THE INCONGRU ITY STARTS WHEN THE CIT(A) FURTHER GOES TO SAY THAT BECAUSE OF THE AFORESAID P ROVISIONS, IT WAS NOT NECESSARY TO MENTION RIGHTS IN LAND OR BUILDING S PECIFICALLY U/S 50C OF THE ACT ALSO . 11. IN OUR CONSIDERED OPINION, THE POINT MADE BY TH E CIT(A) IS QUITE FALLACIOUS. FIRSTLY, IT HAS TO BE UNDERSTOOD THAT THE MEANING OF THE EXPRESSION IMMOVABLE PROPERTY CONTAINED IN SECTION 269UA(D) OF THE ACT HAS BEEN REFERRED TO IN SECTION 2(47) OF THE ACT ONLY IN REL ATION TO SUB-CLAUSE (V) AND (VI) THEREOF. SECONDLY, FROM THE MEANING OF EXPRESSION IMMOVABLE PROPERTY CONTAINED IN SECTION 269UA(D) OF THE ACT, THE ONLY THING THAT CAN BE INFERRED IS THAT EVEN LEASEHOLD RIGHTS IN LAND IS A CAPITAL ASS ET. HOWEVER, THE SAID INFERENCE DOES NOT JUSTIFY THE INCLUSION OF A TRANS ACTION INVOLVING TRANSFER OF LEASEHOLD RIGHTS IN LAND WITHIN THE PURVIEW OF SECT ION 50C OF THE ACT. QUITE CLEARLY, SECTION 50C OF THE ACT APPLIES ONLY TO CAP ITAL ASSET BEING LAND OR BUILDING OR BOTH. IT DOES NOT APPLY TO LEASEHOLD R IGHTS IN THE LAND OR BUILDING. THE STAND OF THE CIT(A) THAT IT WAS NOT NECESSARY T O MENTION RIGHTS IN LAND OR BUILDING SPECIFICALLY IN SECTION 50C OF THE ACT, I N OUR VIEW, IS QUITE MISCONCEIVED. 12. APART FROM THE AFORESAID DISCUSSION, WE FIND TH AT THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S PRADEEP STEEL RE-RO LLING MILLS PVT. LTD. (SUPRA) HAS CONSIDERED AN IDENTICAL CONTROVERSY WHEREIN IT HAS BEEN HELD THAT SECTION 50C OF THE ACT WOULD APPLY ONLY TO CAPITAL ASSET, B EING LAND OR BUILDING OR BOTH AND IT WOULD NOT APPLY IN RELATION TO LEASEHOLD RIG HTS IN LAND OR BUILDING. TO THE SIMILAR EFFECT IS THE DECISION OF THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF M/S JAIPUR TIMES INDUSTRIES (SUPRA). THE JAIPUR BE NCH OF THE TRIBUNAL FOLLOWED AN EARLIER DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITA NO.1265/PN/2011 SHAVO NORGREN (I) LTD. VS. DCIT VIDE ITA NO.8101 OF 2011 DATED 14.12.2012 TO HOLD THAT SECTION 50C OF THE ACT DOES NOT APPLY TO TRANSFER OF LEASEHOLD RIGHTS IN LAND. THE DECISION OF THE AHMEDABAD BENCH OF TH E TRIBUNAL IN THE CASE OF SHRI YASIN MOOSA GODIL (SUPRA) IS ALSO ON SIMILAR L INES. 13. IN VIEW OF THE AFORESAID LEGAL POSITION AND IN THE ABSENCE OF ANY DECISION TO THE CONTRARY BROUGHT OUT BY THE REVENUE , WE CONCLUDE BY HOLDING THAT SECTION 50C OF THE ACT DOES NOT COME INTO OPER ATION IN THE PRESENT FACTS WHERE WHAT IS TRANSFERRED BY THE ASSESSEE IS ONLY T HE LEASEHOLD RIGHTS IN LAND WHICH WERE ACQUIRED BY IT FROM MAHARASHTRA INDUSTRI AL DEVELOPMENT CORPORATION (I.E. MIDC) ON A 99 YEARS LEASE BASIS. AS A CONSEQUENCE, WE SET- ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESS ING OFFICER TO COMPUTE THE LONG TERM CAPITAL GAIN ON TRANSFER OF LEASEHOLD LAN D BY ADOPTING THE FULL VALUE OF CONSIDERATION OF RS.2,35,04,000/- DECLARED BY TH E ASSESSEE IN THE COMPUTATION OF INCOME AND ALLOW THE APPROPRIATE REL IEF TO THE ASSESSEE. THUS, ON THIS GROUND ASSESSEE SUCCEEDS. 14. THE NEXT GROUND OF APPEAL RAISED BY THE ASSESSE E IS WITH REGARD TO A LOSS ON SALE/TRANSFER OF DIES BELONGING TO OTHERS A MOUNTING TO RS.10,15,149/- WHICH HAS BEEN DISALLOWED BY THE LOWER AUTHORITIES. 15. IN THIS CONTEXT, THE RELEVANT FACTS ARE THAT IN THE RETURN OF INCOME ASSESSEE CLAIMED A LOSS ON SALE OF DIES/MOULDS MANU FACTURED ON BEHALF OF THE CUSTOMERS AMOUNTING TO RS.10,15,149/-. THE CLAIM O F THE ASSESSEE WAS THAT NO DEPRECIATION WAS CLAIMED ON SUCH VALUE OF DIES/M OULDS AND THEREFORE THE LOSS ON ITS SALE WAS ALLOWABLE AS A LONG TERM CAPIT AL LOSS. THE ASSESSING OFFICER DID NOT ACCEPT THE PLEA OF THE ASSESSEE ON THE GROUND THAT THE SAME WAS ALREADY CONSIDERED AS A PART OF BLOCK ASSETS. THE CIT(A) ALSO AFFIRMED THE STAND OF THE ASSESSING OFFICER. THE CIT(A) FUR THER NOTICED THAT IF THE DIES ITA NO.1265/PN/2011 HAVE BEEN MANUFACTURE ON BEHALF OF THE CUSTOMERS, I T WAS NOT UNDERSTOOD AS TO HOW THE SAME IS BEING CLAIMED AS A CAPITAL ASS ET ON WHICH LONG TERM CAPITAL LOSS WAS CLAIMED. AGAINST SUCH A STAND OF THE LOWER AUTHORITIES, ASSESSEE IS IN FURTHER APPEAL BEFORE US. 16. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSES SEE HAS REFERRED TO THE ANNUAL FINANCIAL STATEMENTS OF THE ASSESSEE FOR THE PERIOD UNDER CONSIDERATION AND POINTED OUT THAT DIES/MOULDS MANUFACTURED ON BE HALF OF THE CUSTOMERS IS APPEARING AS A SEPARATE ASSET IN THE SCHEDULE OF FI XED ASSETS AND NO DEPRECIATION HAS BEEN CLAIMED ON SUCH AN ASSET. BY REFERRING TO PAGE 77 OF THE PAPER BOOK, IT IS POINTED OUT THAT OTHER DIES A ND MOULDS ARE ALSO FORMING PART OF THE SCHEDULE OF FIXED ASSETS SEPARATELY ON WHICH DEPRECIATION WAS CLAIMED. IT WAS, THEREFORE, CONTENDED THAT THE LOW ER AUTHORITIES HAVE FAILED TO APPRECIATE THE FACTS IN THEIR PROPER PERSPECTIVE AN D HAVE ERRED IN DISALLOWING THE CLAIM OF THE ASSESSEE. WITH REGARD TO THE CONT ENTION OF THE CIT(A), IT IS POINTED OUT THAT SUCH DIES ARE UTILIZED IN THE PROC ESS OF MANUFACTURE OF PRODUCTS FOR THE CUSTOMERS BUT THEY ARE NOT SOLD TO THE CUSTOMERS AND THEREFORE THEY APPEAR AS AN ASSET IN THE BALANCE SH EET. 17. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESE NTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW IN SUPPORT OF T HE STAND OF THE REVENUE. 18. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. PRIMA-FACIE , WE ARE OF THE VIEW THAT THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED BY THE LOWER AUTHORITIES ON MERE SURMISES AND CONJECTURES. THE CIT(A) HAS REPRODUCED IN HIS ORDER THE WRITTEN SUBMISSIONS PUT-FORTH BY THE ASSESSEE IN THIS REGARD WHICH CLEARLY POINT OUT THAT ASSESSEE HAD GIVEN A D ETAILED COMPUTATION OF MANNER IN WHICH THE LONG TERM CAPITAL LOSS OF RS.10 ,15,149/- IN QUESTION HAS BEEN WORKED OUT. THERE IS NO REPUDIATION TO THE DE TAILS FURNISHED BY THE ITA NO.1265/PN/2011 ASSESSEE BEFORE THE CIT(A). NEVERTHELESS, SINCE TH E MATTER INVOLVES A FACTUAL APPRECIATION, WE DEEM IT FIT AND PROPER TO RESTORE IT BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHALL VERIFY THE CLAIM PUT-FO RTH BY THE ASSESSEE AND ALLOW APPROPRIATE RELIEF IN ACCORDANCE WITH LAW. N EEDLESS TO MENTION, THE ASSESSING OFFICER SHALL ALLOW THE ASSESSEE A REASON ABLE OPPORTUNITY OF BEING HEARD BEFORE PASSING AN ORDER AFRESH ON THIS ASPECT . THUS, ON THIS GROUND ASSESSEE SUCCEEDS FOR STATISTICAL PURPOSES. 19. THE LAST GROUND IN THIS APPEAL IS WITH REGARD T O A COMPUTATION OF SHORT TERM CAPITAL GAIN ON SALE OF OTHER DEPRECIABLE ASSE TS MADE BY THE INCOME-TAX AUTHORITIES AT RS.82,93,137/- AS AGAINST RS.73,66,6 73/- COMPUTED AND DISCLOSED IN THE RETURN OF INCOME BY THE ASSESSEE. 20. IN THIS CONTEXT, THE PLEA OF THE ASSESSEE BEFOR E THE CIT(A) WAS THAT THE ASSESSING OFFICER ERRED IN ADOPTING SALE CONSIDERAT ION IN RESPECT OF SUCH ASSETS AT RS.1,05,56,555/- AS AGAINST CORRECT AMOUN T OF RS.95,56,555/-. THE CIT(A) HAS SUMMARILY REJECTED THE PLEA OF THE ASSES SEE AND INSTEAD UPHELD THE COMPUTATION OF SHORT TERM CAPITAL GAIN ON SALE OF OTHER DEPRECIATION ASSETS AT 82,93,137/- AS AGAINST 73,66,673/- WORKED OUT BY THE ASSESSEE. 21. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSES SEE REFERRED TO PAGE 99 OF THE PAPER BOOK WHEREIN IS PLACED THE COMPUTATION OF SHORT TERM CAPITAL GAIN OF RS.73,66,673/-. 22. EXPLAINING THE MISTAKE COMMITTED BY THE LOWER A UTHORITIES, IT IS POINTED OUT THAT THE ASSESSING OFFICER HAS MISSED OUT THE E XCLUSION OF GAIN ON MOTOR CARS OF RS.75,536/- AND HAS WRONGLY INCLUDED THE CO NSIDERATION OF RS.10,00,000/- PERTAINING TO DIES AND MOULDS. THE LD. REPRESENTATIVE POINTED OUT THAT THE AFORESAID WAS A CLEAR ERROR ON THE PART OF THE LOWER ITA NO.1265/PN/2011 AUTHORITIES AND THAT THERE WAS NO JUSTIFICATION FOR ENHANCING THE SHORT TERM CAPITAL GAIN ON DEPRECIATION ASSET TO RS.82,93,137/ - FROM RS.73,66,673/- AS ABOVE. 23. THE LD. DEPARTMENTAL REPRESENTATIVE APPEARING F OR THE REVENUE HAS NOT CONTROVERTED THE FACTUAL MATRIX RELIED UPON BY THE LD. REPRESENTATIVE FOR THE ASSESSEE. 24. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE FACTUAL MATRIX BROUGHT OUT BY THE LD. REPRESENTATIVE FOR THE ASSESSEE, WE FIND NO REASON TO UPHOLD THE ORDERS OF THE AUTHORITIES BELOW ON THIS COUNT. THE ORDER OF THE CIT(A) IS ACCORDINGLY SET-ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION OF RS.9,26,464/- MADE BY THE ASSESSING OFF ICER TOWARDS THE AMOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF OTHER DEPRECI ATION ASSETS. THUS, ON THIS GROUND ASSESSEE SUCCEEDS. 25. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JANUARY, 2015. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 19 TH JANUARY, 2015. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE