Orion Laminates Ltd, Aurangabad V. ACIT Cen Cir-Aurangabad, Aurangabad

ITA 249/PUN/2012

• Counselvise Citation: 24924514 RSA 2012
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 07-10-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 06-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Search and seizure; Fair market value
• Section: 50C; 2(14); 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 249 / P N/ 20 12 ASSESSMENT YEAR : 2006 - 07 ORION LAMINATES LTD., GAT NO. 24, C HTEGAON, PAITHAN ROAD, AURANGABAD VS. ASSTT. CIT, CENTRAL CIRCLE, AURANGABAD (APPELLANT) (RESPONDENT) PAN NO. AAACO3621Q APPELLANT BY: SHRI KISHORE PHADKE RESPONDENT BY: SHRI P.L. PATHADE DATE OF HEARING : 12 - 03 - 2014 DATE OF PRONOUNCEMENT : 19 - 05 - 2014 ORDER PER R.S . PADVEKAR , JM : - IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT(A), AURANGABAD DATED 28 - 12 - 2011 FOR THE A.Y. 2006 - 07. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. THE LEARNED CIT (APPEALS) - AURANGABAD, ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS.60,20,000/ - MADE BY THE LEARNED AO BY INVOKING SECTION 50C OF THE ITA, 1961. 2. THE LEARNED CIT (APPEALS) - AURANGABAD AND THE LEARNED AO, ERRED IN LAW AND ON FACTS IN TREATIN G THE 5 ACRES LAND AT VILLAGE CHORBAUDI, DISTRICT JALNA, AS CAPITAL ASSET HELD BY THE APPELLANT U/S 2(14) OF THE ITA, 1961, DISREGARDING THE FACT THAT, RIGHTS IN THE SAID LAND WERE ACQUIRED MERELY TO RECOVER OUTSTANDING DEBT AND FROM A PROTECTIVE PURSUIT W ITHOUT ANY INTENT OF ACTUAL DEVELOPMENT. 3. WITHOUT PREJUDICE TO GROUND NO. 2, THE LEARNED CIT (APPEALS) - AURANGABAD AND THE LEARNED AO ERRED IN LAW AND ON FACTS IN APPLYING PROVISIONS OF SECTION 50C OF THE ITA, 1961 TO THE RIGHTS IN SAID 5 ACRES OF AGRICU LTURAL LAND. 2 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD 4. ALTERNATIVELY AND WITHOUT PREJUDICE TO GROUND NO. 2 & 3, THE LEARNED CIT (APPEALS) - AURANGABAD AND THE LEARNED AO ERRED IN LAW AND ON FACTS IN ADOPTING THE VALUE OPINED BY THE DVO WITHOUT APPRECIATING GLARING LOGICAL ERRORS / MISTAKES IN THE SAID DVO'S REPORT. 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS A LIMITED COMPANY. THERE WAS A SEARCH AND SEIZURE ACTION U/S. 132 OF THE INCOME - TAX ACT ON SHAH & JHUNJHUNWALA GROUP OF JALNA ON 25 - 02 - 2007 . E VEN IF THE ASSES SMENTS ARE ARISING OUT OF THE SEARCH AND SEIZURE OPERATION BUT FOR DECIDING THE ISSUE ARISING FROM THE GROUNDS TAKEN BY THE ASSESSEE , T HE SAID ASPECT IS IRRELEVANT HENCE, WE DIRECTLY GO TO THE ISSUE OF THE LONG TERM CAPITAL GAIN. THE ASSESSEE ENTERED INTO REGISTERED DEVELOPMENT AGREEMENT ON 07 - 06 - 2005 WITH ONE SHRI PRAKASH R. KASARI FOR CONSIDERATION OF RS.35,00,000/ - . F OR THE PURPOSE OF PAYMENT OF STAMP DUTY , THE VALUATION WAS DETERMINED AT RS.1,22,50,000/ - . IN THE ORIGINAL RETURN FILED U/S. 139, THE AS SESSEE HAS DECLARED THE SHORT TERM CAPITAL LOSS OF RS.5,00,000/ - ON THE SALE OF THE SAID LAND BEARING SURVEY NO. 46 AT JALNA (CHORBAUDI LAND). 3. IN THE ASSESSMENT FRAMED U/S. 153A, THE ASSESSEE TOOK THE DIFFERENT STAND BY TAKING THE CONTENTION THAT THE S AID LAND WAS NEVER PURCHASED OR SOLD BY THE ASSESSEE BUT HE HAD ONLY ENTERED INTO A DEVELOPMENT AGREEMENT WITH OWNER OF THE LAND TO LIQUIDATE THE DUES OF IN SANKET FOOD PRODUCTS AND INDUSTRY PVT. LTD. THE ASSESSEE ALSO TOOK THE CONTENTION THAT WHEN THE SA ID LAND WAS SOLD ON 16 - 12 - 2005, THE ORIGINAL OWNER OF THE LAND WAS A PARTY SHOWN AS A SELLER AND THE ASSESSEE COMPANY WAS JOINED AS A CONSENTING PARTY. ACCORDINGLY, IT WAS CLAIMED BY THE ASSESSEE THAT NO CAPITAL GAIN WAS FASTENING ON IT AS THE TRANSACTION WAS BETWEEN THE ORIGINAL LAND OWNER AND PURCHASER OF THE LAND I.E. SHRI BANARASIDAS RAMKISHAN JINDAL. AS NOTED BY THE ASSESSING OFFICER, THE ASSESSEE HIMSELF H AS DECLARED THE SHORT TERM CAPITAL LOSS IN 3 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD THE RETURN FILED U/S. 139 BY SHOWING THE COST OF THE PURCHASE OF THE SAID LAND AT RS.35,00,000/ - AND THE SALE CONSIDERATION AT RS.30,00,000/ - . THE DEVELOPMENT AGREEMENT DATED 07 - 06 - 2005 HAS BEEN EXECUTED BY SHRI PRAKASH KASARI IN FAVOUR OF THE ASSESSEE COMPANY. IN THE SAID DEVELOPMENT AGREEMENT SHRI KEDAR MUNDADA AND M/S. SANKET INDUSTRIES LTD. ARE SHOWN AS THE CONSENTERS TO THIS DEVELOPMENT AGREEMENT. THE TOTAL AREA OF THE LAND WAS 5 ACRES AND THE SALE CONSIDERATION WAS SHOWN AS RS.35,00,000/ - . IN THE DEVELOPMENT AGREEMENT, IT WAS MENTIONED THAT AS ON 3 1 - 05 - 2005 M/S. SANKET INDUSTRIES LTD. WAS LIABLE TO PAY SUM OF RS.1,69,47,994/ - TO THE ASSESSEE COMPANY AND AS MENTIONED IN THE AGREEMENT THE SAID M/S. SANKET INDUSTRIES LTD. WOULD PAY THE AGREED SALE CONSIDERATION TO SHRI PRAKASH KASARI , T HE ORIGINAL LAND OWNER ON BEHALF OF THE ASSESSEE COMPANY . T HE ASSESSEE ALSO GOT EXECUTED IRREVOCABLE GENERAL POWER OF ATTORNEY (GPA) DATED 07 - 06 - 2005 FROM SHRI PRAKASH KASARI, THE LAND OWNER. AS PER THE DEVELOPMENT AGREEMENT , THE POSSESSION OF THE LAND WAS GIVEN TO THE ASSESSEE BY DOING THE MARKING OF THE BOUNDAR IES ON 07 - 06 - 2005 I.E. THE DATE ON WHICH THE DEVELOPMENT AGREEMENT WAS EXECUTED BETWEEN THE LAND OWNER SHRI PRAKASH KASARI AND THE ASSESSEE COMPANY. 4. ON THE BASIS OF ABOVE FACTS AND RELYING ON THE DECISION O F THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. CHATUBHUJ DWARKADAS KAPADIA VS. CIT 260 ITR 491 (MUM) , THE ASSESSING OFFICER HELD THAT THERE WAS A TRANSFER OF LAND WITHIN THE MEANING OF SEC. 2(47)(V) OF THE I.T. ACT IN FAVOUR OF THE ASSESSEE A ND WHEN THE LAND WAS AGAIN SOLD/TRANSFERRED VIDE SALE DEED DATED 16 - 12 - 2005 BY SHRI PRAKASH KASARI AND THE ASSESSEE COMPANY JOINED THE SAID SALE DEED AS A CONSENTING PARTY , I N SUCH SITUATION THE TRANSFER OF LAND WAS BY THE ASSESSEE ONLY, NOT BY SHRI PRAKAS H KASARI. AS PER THE TERMS OF THE DEVELOPMENT AGREEMENT DATED 07 - 06 - 2005 , AFTER THE ASSESSEE COMPANY DID NOT DEVELOP THE SAID LAND AND SOLD THE SAID LAND THEN IT WAS AGREED 4 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD THAT THE ASSESSEE COMPANY WOULD PAY ADDITIONAL RS.5,00,000/ - TO THE LAND OWNER I.E . SHRI PRAKASH KASARI. THE ASSESSING OFFICER HAS ALSO NOTED THAT AS PER THE SALE DEED DATED 16 - 12 - 2005 , THE SALE CONSIDERATION WAS RECEIVED BY THE ASSESSEE COMPANY , WHO WAS ME RELY SHOWN AS THE CONSENTERS OF THE SALE DEED. IN THE BACKGROUND OF ALL THESE F ACTS , THE ASSESSING OFFICER CONCLUDED THAT ON 16 - 12 - 2005 EVEN THOUGH THE ASSESSEE COMPANY WAS NOT SHOWN AS THE OWNER OF THE LAND BUT IN LAW THE TRANSFER WAS MADE BY THE ASSESSEE COMPANY AND HENCE, THE CAPITAL GAIN ON THE SALE OF THE SAID LAND ON 16 - 12 - 2005 WAS TAXABLE IN THE HANDS OF THE ASSESSEE. AS NOTED BY THE ASSESSING OFFICER , THE FAIR MARKET VALUE OF THE SAID LAND ON THE DATE OF SALE I.E. 16 - 12 - 2005 FOR THE PURPOSE OF STAMP DUTY WAS ADOPTED AT RS.95,20,000/ - WHICH HAS BEEN SHOWN FOR THE SALE CONSIDER ATION OF RS.30,00,000/ - . THE ASSESSING OFFICER, THEREFORE, ADOPTED THE VALUATION MADE FOR THE PAYMENT OF STAMP DUTY AT RS.95,20,000/ - BY DISCARDING THE SALE CONSIDERATION OF RS.30,00,000/ - SHOWN IN THE DEED OF SALE AND WORKED OUT THE SHORT TERM CAPITAL GA IN AT RS.60,20,000/ - . 5. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. BEFORE THE LD. CIT(A) THE ASSESSEE CONTENDED THAT THE CAPITAL GAIN WAS WRONGLY TAXED IN THE HANDS OF THE ASSESSEE COMPANY INA SMUCH AS THE TRANSFER WAS MADE BY SHRI PRAKASH KASARI, OWNER OF THE LAND AND THE ASSESSEE WAS ONLY THE CONSENTING PARTY. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LD. COUN SEL REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) . HIS MAIN PLANK OF THE ARGUMENT IS THAT THE ASSESSEE COMPANY WAS NEVER OWNER OF THE SAID LAND AND ONLY THE DEVELOPMENT AGREEMENT WAS ENTERED INTO BETWEEN THE LAND OWNER SHRI PRAKASH KASARI AND THE ASSESSEE COMPANY. HE FURTHER ARGUES THAT THE SAID LAND WAS TAKEN FOR DEVELOPMENT FROM SHRI PRAKASH KASARI FOR THE RECOVERY OF THE 5 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD HUGE AMOUNT OUTSTANDING WITH M/S. SANKET FOOD PRODUCTS AND INDUSTR Y PVT. LTD. HE REFERRED TO THE PAPER BOOK IN WHICH THE COP Y OF THE DEVELOPMENT AGREEMENT IS PLACED (PAGE NOS. 1 TO 14) COPIES OF THE MARATHI AGREEMENT AND ENGLISH TRANSLATION ARE PLACED AND SUBMITS THAT IN CLAUSE 2, THERE IS A CATEGORICAL ASSERTION THAT THE PAYMENT WILL BE MADE BY M/S. SANKET INDUSTRIES LTD. IN R ESPECT OF THE AGREED SALE CONSIDERATION BETWEEN THE ASSESSEE COMPANY AND SHRI PRAKASH KASARI. HE FURTHER SUBMITS THAT THE SAID LAND COULD NOT BE DEVELOPED AND HENCE, THE ASSESSEE WAS FORCED TO RETURN THE LAND TO THE ORIGINAL LAND OWNER AND DEVELOPMENT AGR EEMENT WAS CANCELLED AND THE ORIGINAL LAND OWNER SOLD THE LAND VIDE SALE DEED DATED 16 - 12 - 2005 TO SHRI BANARASIDAS RAMKISHAN JINDAL. HE SUBMITS THAT ON PERUSAL OF BOTH THE DOCUMENTS, IT IS CLEAR THAT NOWHERE THE TITLE IN THE PROPERTY WAS TRANSFERRED IN FA VOUR OF THE ASSESSEE COMPANY AND IT WAS ONLY DEVELOPMENT AGREEMENT. 7. PER CONTRA, THE LD. DR SUBMITS THAT AT THE TIME OF EXECUTION OF THE DEVELOPMENT AGREEMENT BETWEEN THE ORIGINAL LAND OWNER I.E. SHRI PRAKASH KASARI AND THE ASSESSEE COMPANY , THE POSSES SION OF THE LAND WAS GIVEN BY M ARKING THE BOUNDARIES AND ON THIS EXTENT THERE IS A CATEGORICAL ASSERTION IN CLAUSE NO. 4 OF THE DEVELOPMENT AGREEMENT. HE SUBMITS THAT THE ASSESSEE GOT EXECUTED IRREVOCABLE POWER OF ATTORNEY ON THE DATE OF EXECUTION OF THE DEVELOPMENT AGREEMENT AND BY VIRTUE OF CLAUSE NO. 8 POWER OF ATTORNEY T HE ASSESSEE WAS GIVEN FULL - FLEDGED POWER TO TRANSFER THE SAID LAND IN ANY MODE LIKE SALE , MORTGAGED ETC. HE SUBMITS THAT THERE IS NO MERIT IN THE ARGUMENT OF THE LD. COUNSEL THAT THE A SSESSEE HAS ACQUIRED THE DEVELOPMENT RIGHTS IN THE SAID LAND IN THE PART SETTLEMENT OF ITS OUTSTANDING DATE WITH M/S. SANKET INDUSTRIES LTD. AS THE LAND OWNER SHRI PRAKASH KASARI IS NOWHERE RELATED TO M/S. SANKET INDUSTRIES LTD. NOR THE TITLE OR INTEREST I N THE SAID LAND WAS VESTED IN THE SAID COMPANY. 6 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD 8. THE FACTS ARE ALREADY NARRATED. WE HAVE ALSO TAKEN INTO CONSIDERATION OF THE CASE LAW RELIED ON BOTH THE PARTIES AS WELL AS THE PAPER BOOK FILED ON RECORD. THE FIRST ISSUE WE HAVE TO DETERMINE WHETHER THERE WAS A TRANSFER OF LAND WITHIN THE MEANING OF SEC. 4 5 R.W.S. 2 ( 47 ) OF THE ACT BY THE ASSESSEE WHEREBY THE ASSESSEE COMPANY IS RELIABLE FOR THE CAPITAL GAIN. IT IS UNDISPUTED FACT THAT THE ASSESSEE ENTERED INTO DEVELOPMENT AGREEMENT WHICH WAS REGISTE RED WITH THE SUB - REGISTRAR AND THE STAMP DUTY WAS ALSO PAID ON 07 - 06 - 2005. ON PERUSAL OF THE DEVELOPMENT AGREEMENT TWO MORE PERSONS/PARTIES ARE SHOWN I.E. ONE SHRI KEDAR MUNDADA AND M/S. SANKET INDUSTRIES LTD. ON PERUSAL OF THE REVENUE RECORD (PAGE NO. 3 0), IT IS SEEN THAT SHRI KEDAR MUNDADA SHOWN AS OWNER ALONG WITH SHRI PRAKASH KASARI AND THERE ARE FEW NAMES OTHER ALSO OTHER THAN M/S. SANKET INDUSTRIES LTD. SO FAR AS THE SHRI KEDAR KASARI IS CONCERNED , NO EXPLANATION IS GIVEN IN RESPECT OF THE ROLE OF SHRI KEDAR KASARI BEING HAVING INTEREST IN THE SAID LAND THE SAID PERSON WAS IMPLEADED AS CONSENTER. IN THE REVENUE RECORD THERE IS NO MENTION OF M/S. SANKET INDUSTRIES LTD. IN THE DEVELOPMENT AGREEMENT IN RESPECT OF THE PAYMENT OF THE CONSIDERATION , IT IS MENTIONED IN CLAUSE 2 THAT THE AGREED CONSIDERATION OF RS.35,00,000/ - WILL BE PAID BY (I). M/S. SANKET INDUSTRIES LTD . AND (II). SHRI PRAKASH KASARI, THE LAND OWNER. THE RELATIONSHIP OF THE LAND OWNER WITH M/S. SANKET INDUSTRIES LTD. KEPT IN THE PAND ORAS BOX AND NO EXPLANATION IS FILED HOW THE M/S. SANKET INDUSTRIES LTD. JOINED AS A PARTY TO THE DEVELOPMENT AGREEMENT BY UNDERTAKING TO PAY THE AGREED CONSIDERATION TO THE LAND OWNER. HENCE, THE STORY PUT FORWARD ABOUT RECOVERY OF DUES FROM M/S. SANKET INDUSTRIES LTD. IS NOT ACCEPTABLE. 9. WE HAVE ALSO FIND THAT AS PER THE DEVELOPMENT AGREEMENT , ALL THE RIGHTS INCLUDING THE POSSESSION WERE VESTED IN THE ASSESSEE COMPANY. IT IS TRUE THAT FULL - FLEDGED TITLE WAS NOT TRANSFERRED BUT TITLE ITSELF IS A CO NCEPT OF THE BUNDLE OF THE RIGHT S . MOREOVER, THE SUBJECT MATTER OF THE 7 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD DEVELOPMENT AGREEMENT IS AN IMMOVABLE PROPERTY AND HENCE, WHATEVER THE RIGHTS WERE ACQUIRED BY THE ASSESSEE VIDE DEVELOPMENT AGREEMENT DATED 07 - 06 - 2005 WERE PERTAINING TO THE IMMOVABLE PROPERTY. WE, THEREFORE, HOLD THAT THE RIGHTS WERE VESTED IN THE ASSESSEE IN RESPECT OF THE LAND BEARING GUT NO. 47, CHORBAUDI, JALNA AND WHATEVER RIGHTS WERE ACQUIRED BY THE ASSESSEE WAS THE CAPITAL ASSETS WITHIN THE MEANING OF SEC. 2(14) OF THE ACT. E VEN THOUGH THE ASSESSEE HAS TAKEN THE STAND THAT IT WAS THE BUSINESS ASSETS AND IT WAS NOT AN INVESTMENT , W E ARE UNABLE TO ACCEPT THE PLEA OF THE ASSESSEE AND THE SAID COUNT. AS PER THE FACT ON RECORD THE ASSESSEE COMPANY TREATED THE RIGHTS ACQUIRED UNDER THE DEVELOPMENT AGREEMENTS AS CAPITAL ASSET AND DECLARED THE SHORT TERM CAPITAL LOSS UNDER THE HEAD CAPITAL GAIN. W E FIND THAT AT EVERY STAGE THE ASSESSEE IS TAKING DIFFERENT STANDS INCONSISTENT WITH EACH OTHER. MOREOVER, WHETHER ACQUISITION OF PARTIC ULAR ASSET WAS BY WAY OF INVESTMENT OR AS A STOCK - IN - TRADE IS A QUESTION OF FACT AND HENCE, APPLYING THE DOCTRINE OF THE ESTOPPEL , UNLESS CONTRARY ESTABLISH, THE ASSESSEE CANNOT BE PERMITTED TO CHANGE THE TREATMENT GIVEN TO THE RIGHTS ACQUIRED UNDER THE DE VELOPMENT AGREEMENT. ONCE WE HOLD THAT THE ASSESSEE ACQUIRED THE CAPITAL ASSET WHICH IS IN THE FORM OF DEVELOPMENT RIGHTS THEN WHEN THE LAND WAS SOLD , THOSE RIGHTS WERE ALREADY VESTED IN THE ASSESSEE COMPANY AND NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT BEFORE THE DATE OF SALE OF THE SAID LAND THE ASSESSEE HAS RELINQUISHED THE RIGHTS ACQUIRED VIDE REGISTERED DEVELOPMENT AGREEMENT IN FAVOUR OF THE LAND OWNER. WHEN THE LAND WAS SOLD ON 16 - 12 - 2005 SHRI PRAKASH KASARI WAS SHOWN AS A SELLER FOR THE OBVIO US REASON THAT AS PER THE REVENUE RECORD HE WAS THE OWNER OF THE SAID PROPERTY. 10. WE FURTHER FIND THAT AS PER THE IRREVOCABLE POWER OF ATTORNEY DATED 07 - 06 - 2005 EVERY RIGHT WAS GIVEN TO THE ASSESSEE TO DISPOSE OF F THE SAID PROPERTY AND ON THE READING OF THE CLAUSES IN THE POWER OF ATTORNEY THERE SHOULD NOT BE TWO OPINION THAT ALL THE RIGHTS AS OWNER WERE GIVEN TO THE 8 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD ASSESSEE COMPANY FOR DISPOSING OF F OR TRANSFERRING THE SAID PROPERTY . WE, THEREFORE, HOLD THAT AS PER THE DOCUMENTS ON RECORD AND THE ASSE SSE SOLD THE CAPITAL ASSET IN THE FORM OF RIGHTS IN THE PROPERTY/ LAND ON 16 - 12 - 2005 AND THE ASSESSING OFFICER HAS RIGHTLY BROUGHT TO TAX THE SAME IN THE A.Y. 2006 - 07 IN THE HANDS OF THE ASSESSEE. 11. THE NEXT CONTENTION OF THE ASSESSEE IS IN RESPECT OF TH E APPLICABILITY OF SEC. 50C WHICH IS TAKEN AS AN ALTERNATE PLEA IN GROUND NO. 3. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN APPL YING THE PROVISIONS OF SEC. 50C. ON THIS ISSUE HE SUBMITS THAT THE ASSESSEE HAS TA KEN THE OBJECTION ON THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY AND BEFORE THE ORDER WERE FINALIZED. THE ASSESSING OFFICER SHOULD HAVE REFERRED THE MATTER U/S. 50C(2) TO THE DEPARTMENTAL VALUATION OFFICER (DVO) . HE ALSO SUBMITS THAT THE ASSESSEE HAS ONLY ACQUIRED THE DEVELOPMENT RIGHTS IN THE LAND HENCE, PROVISIONS OF SEC. 50C ARE NOT APPLICABLE. HE ALSO RELIED ON THE FOLLOWING DECISIONS: I. ATUL G. PURANIK VS. ITO 132 ITD 499 (MUM) II. I TO VS. SHRI PREM RATTAN GUPTA, ITA NO. 5803/MUM/2009 III. SHRI IRFAN ABDUL KADER FAZLANI VS. ACIT, CENTRAL CIRCLE - 44, MUMBAI, ITA NOS. 8831 & 8832/M/2011 12. WE HAVE PERUSED THE DECISIONS RELIED ON BY THE LD. COUNSEL . WE ARE OF THE OPINION THAT THE ABOVE DECISIONS ARE DISTINGUISHABLE ON FACTS . I N THE CASE OF ATUL G. PURANIK (SUPRA) THERE WAS A LEASE AGREEMENT AND IN THAT CONTEXT IT WAS HELD THAT SEC. 50C IS NOT APPLICABLE. SO FAR AS THE ANOTHER DECISION IN THE CASE OF SHRI PREM RATTAN GUPTA (SUPRA) IS CONCERNED THE ASSESSEE HAS TRANSFERRED THE LAND AS WELL AS RIGHTS OF ADDITIONAL FSI/TDR. IN THE BACKGROUND OF TH OSE FACT S IT WAS HELD THAT THE CONSIDERATION PERTAINING TO THE FSI/TDR RIGHTS CANNOT BE SUBJECT MATTER OF SEC. 50C. WE HAVE ALREADY HELD THAT BY WAY OF DEVELOPMENT AGREEMENT AND EXECUTION OF THE IRREV OCABLE POWER OF ATTORNEY , T HE 9 ITA NO. 249/PN/2012, ORION LAMINATES LTD., AURANGABAD ASSESSEE BECOME THE OSTENSIBLE OWNER OF THE SAID LAND AND HENCE, ON THE SE SPECIFIC FACTS AND DOCUMENTS ON RECORD OF THIS CASE , WE HOLD THAT THE PROVISIONS OF SEC. 50C ARE APPLICABLE. AT THE SAME TIME , WE FIND THAT EVEN IF THE OBJECTION WAS RAISED BY THE ASSESSEE THE ASSESSING OFFICER HAS NOT REFERRED THE ISSUE OF VALUATION U/S. 50C TO THE DEPARTMENTAL VALUATION OFFICER. WE, ACCORDINGLY, RESTORE THE ISSUE OF VALUATION TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO REFE R THE SAME U/S. 50C(II) TO THE DVO AND AFTER GETTING THE REPORT OF THE DVO TO WORK OUT THE SHORT TERM CAPITAL GAIN . ACCORDINGLY, WE HAVE ALLOWED GROUND NO. 3 OF THE ASSESSEE. THE GROUND NO. 4 BECOMES INFRUCTUOUS. 13. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED FOR THE STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 19 - 05 - 20 1 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 19 TH MAY, 20 1 4 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A), AURANGABAD 4 THE CIT, AURANGABAD 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE