THE ITO 10(3)(4), NAVI MUMBAI V. M/S. PAWASKAR SHIPPING & TRADING CO. PVT. LTD, MUMBAI

ITA 872/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49709 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 04-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 07-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P NAIK
• Assessee Lawyers: BHUPENDRA SHAH
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Depreciation; Cost of acquisition; Fair market value
• Section: 37; 50C; 2(14); 56(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER ITA NO. 872/MUM./2008 (ASSESSMENT YEAR : 2004-05 ) DATE OF HEARING 7.7.2011 INCOME TAX OFFICER, WARD-10(3)(4) AAYAKAR BHAVAN, 101, M.K. MARG MUMBAI 400 020 .. APPELLANT V/S M/S. PAWASKAR SHIPPING & TRADING COMPANY PVT. LTD., PLOT NO.D-378 KUKSHET THANE-BELAPUR ROAD TTC INDUSTRIAL AREA NAVI MUMBAI 400 705 PAN AACCP1606Q .... RESPONDENT REVENUE BY : MR. P. NAIK ASSESSEE BY : MR. BHUPENDRA SHAH O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL PREFERRED BY THE REVENUE, IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 23 RD NOVEMBER 2007, PASSED BY THE COMMISSIONER (APPEALS)-X, MUMBAI, FOR ASSESSMENT YEAR 2004-05. G ROUND NO.1, READS AS FOLLOWS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSE SSING OFFICER TO TAX THE RENTAL INCOME RECEIVED FROM FACTORY BUILDING UN DER THE HEAD INCOME FROM HOUSE PROPERTY INSTEAD OF UNDER THE H EAD INCOME M/S. PAWASKAR SHIPPING & TRADING CO. P. LTD. ITA NO.872/M./2008 2 FROM OTHER SOURCES ON THE GROUND THAT INCOME FROM THE LETTING OUT HAS BEEN ACCEPTED BY THE DEPARTMENT UNDER SECTION 2 2 IN THE PAST IGNORING THE FACT THAT ASSESSMENTS FOR A.Y. 2000-01 AND ONWARDS HAVE BEEN REOPENED TREATING THIS INCOME AS INCOME FROM OTHER SOURCES AND NOT AS INCOME FROM HOUSE PROPERTY. 2. THE FIRST APPELLATE AUTHORITY, VIDE PARAS-3.1 AND 3 .2 OF HIS ORDER, HELD AS FOLLOWS:- 3.1 BEFORE ME, THE APPELLANT HAS SUBMITTED THAT TH E ASSESSING OFFICER WRONGLY CONCLUDED THAT THE LEASE RENTAL REC EIVED WAS FROM PLANT AND MACHINERY AND FURNITURE, AS ENVISAGED IN SEC. 56(2)(II) & (III), I HAVE PERUSED THE COPY OF AGREEMENT AS WELL AS THE COMPUTATION OF INCOME FILED BY THE ASSESSEE SINCE A.Y. 1999-200 0. I FIND THAT THE LEASE IS ONLY WITH REGARD TO THE FACTORY BUILDING. IN FACT ON PERUSAL OF THE AUDITED ACCOUNTS, THE ONLY FIXED ASSETS IN THE BALANCE SHEET, AS ON 31.3.2004, IS BUILDING, SUB-CLAUSES (II) & (III) OF SEC. 56(2) ARE AS FOLLOWS:- II. INCOME FROM MACHINERY, PLANT OR FURNITURE BELONGING TO THE ASSESSEE AND LET ON HIRE, IF THE I NCOME IS NOT CHARGEABLE TO INCOME TAX UNDER THE HEAD PROFIT AND GAINS OF BUSINESS OR PROFESSION; III. WHERE AN ASSESSEE LETS ON HIRE MACHINERY, PLAN T OR FURNITURE BELONGING TO HIM AND ALSO BUILDINGS, AND THE LETTING OF THE BUILDINGS IS INSPEARABLE FROM THE LE TTING OF THE SAID MACHINERY, PLANT OR FURNITURE, THE INCOME FROM SUCH LETTING, IF IT IS NOT CHARGEABLE TO INCOME TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSI ON. 3.2 IT IS QUITE CLEAR FROM THE WORDINGS OF THE ABOV E TWO SUB-CLAUSES THAT ONLY IN THE SITUATION THE LEASE IS FROM PLANT AND MACHINERY OR FURNITURE OR FROM ANY BUILDING IN WHICH PLANT AND M ACHINERY AND FURNITURE IS AN INTEGRAL PART, ONLY THEN CAN THE LE ASE RENTALS BE BROUGHT TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. AS THE FACTS OF THIS CASE ARE QUITE CLEAR THAT THE ASSESSEE IS NOT HAVIN G ANY PLANT AND MACHINERY OR FURNITURE, THE LEASE RENTAL INCOME IS ONLY WITH REGARD TO THE BUILDING. IN THE CIRCUMSTANCES, IT CAN ONLY BE BROUGHT TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. EVEN OTHERWISE I FIND THAT SINCE A.Y. 1999-2000 THIS INCOME IS BEING ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. HENCE, THE ASSESSING OFFICER I S DIRECTED TO ASSESSEE LEASE RENTALS RECEIVED UNDER THE HEAD INCO ME FROM HOUSE PROPERTY, AFTER ALLOWING DEDUCTION FOR MUNICIPAL TA X, AND REPAIRS. 3. SINCE BOTH PARTIES AGREE BEFORE US THAT IN EARLIER ASSESSMENT YEARS, THE REVENUE HAS ACCEPTED THE FINDINGS OF THE COMMIS SIONER (APPEALS) THAT M/S. PAWASKAR SHIPPING & TRADING CO. P. LTD. ITA NO.872/M./2008 3 THE INCOME IN QUESTION IS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY , WE DO NOT FIND ANY REASON TO DISTURB THE FINDINGS OF THE COMMISSIONER (APPEALS) ON THE PRINCIPLE OF CONSISTE NCY. CONSEQUENTLY, GROUND NO.1, RAISED BY THE REVENUE IS DISMISSED. 4. GROUNDS NO.2 AND 3, ARE INTER-RELATED, WHICH READ A S FOLLOWS:- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF ` 28,49,088 MADE UNDER SECTION 50 OF THE ACT WITHOUT APPRECIATI NG THE FACT THAT THE ASSET IS DEPRECIABLE ONE AND DEPRECIATION HAS BEEN ALLOWED IN THE PREVIOUS ASSESSMENT YEAR BY WAY OF RE-ASSESSMENT FO R A.Y. 2000-01 AND ONWARDS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSE SSING OFFICER TO ADOPT THE FIGURE OF ` 23,75,000 AS VALUE OF FACTORY BUILDING AGAINST ` 33,78,500 TAKEN FOR STAMP VALUATION THUS IGNORING S EC. 50C. 5. THE FACTS ARE THAT, THE DIRECTOR OF THE ASSESSEE CO MPANY CAPT. ALI E. PAWASKAR, HAD TAKEN THE PLOT OF LAND ON LEASE FROM MIDC, VIDE AGREEMENT DATED 4 TH FEBRUARY 1989, BY PAYING A PREMIUM OF ` 1,60,000. M/S. PAWASKAR SHIPPING & TRADING CO., WAS A PROPRIETARY CONCERN O F CAPT. ALI E. PAWASKAR. THE PROPRIETARY CONCERN CONSTRUCTED A FACTORY BUILD ING IN THE ABOVE SAID LEASED LAND. NO MANUFACTURING ACTIVITIES HAVE TAKEN PLACE AND THE FACTORY WAS GIVEN ON RENT. IN THE YEAR 1998, A PRIVATE LIMI TED COMPANY WAS INCORPORATED BY CAPT. ALI E. PAWASKAR, AND THE FACT ORY BUILDING WAS TRANSFERRED IN THE NAME OF THE COMPANY. NO CONVEYAN CE WAS EXECUTED FOR TRANSFERRING THE FACTORY BUILDING DUE TO REQUIREMEN T OF VARIOUS LEGAL FORMALITIES AND PERMISSIONS, WHICH WERE AWAITED. TH E COMPANY WAS NOT SUCCESSFUL IN DOING THE BUSINESS AND THE FACTORY BU ILDING WAS SOLD IN ` 23,75,000, TO M/S. MASS INDUSTRIES P. LTD. AND THE CAPT. ALI E. PAWASKAR, WAS A CONFIRMING PARTY. THE ISSUE IN QUESTION IS, W HETHER OR NOT THE PROVISIONS OF SECTION 50C IS ATTRACTED. 6. COMMISSIONER (APPEALS), AT PAGE-6 / PARAS-6.3 AND 6 .4 OF HIS ORDER, HELD AS FOLLOWS:- M/S. PAWASKAR SHIPPING & TRADING CO. P. LTD. ITA NO.872/M./2008 4 6.3 I HAVE PERUSED THE FACTS IN THIS CASE. SHRI ALI E. PAWASKAR HAD TAKEN ONE PLOT OF LAND ON LEASE FROM MIDC, VIDE AGR EEMENT DATED 4.2.1989, IN NAVI MUMBAI. IN THE YEAR 1992, A BUILD ING WAS CONSTRUCTED, ON THIS PLOT OF LAND, FOR A CONSIDERAT ION OF ` 12 LAKHS, AND THE AMOUNT WAS DEBITED IN THE BOOKS OF THE PROPRIET ARY CONCERN, OF SHRI PAWASKAR, NAMELY M/S. PAWASKAR SHIPPING & TRAD ING CO. IN THE YEAR 1998 A PRIVATE LIMITED COMPANY WAS INCORPORATE D IN THE NAME OF PAWASKAR SHIPPING & TRADING P. LTD. AND THE BUILDIN G WAS TRANSFERRED TO THE SAID COMPANY. HOWEVER, THE LEASE OF LAND CON TINUED TO STAND IN THE NAME OF THE INDIVIDUAL. SUBSEQUENTLY, VIDE TWO SEPARATE AGREEMENTS; THE LEASE AND BUILDING WERE TRANSFERRED TO M/S. MASS INDUSTRIES P. LTD. FOR A CONSIDERTION OF ` 5.00 LAKHS AND ` 23.75 LAKHS, RESPECTIVELY. THIS HAPPENED DURING THE RELEVANT PRE VIOUS YEAR. HOWEVER, FOR THE PURPOSE OF THE STAMP DUTY ACT, A F RESH AGREEMENT DATED 28.10.2003 WAS DRAFTED BETWEEN SHRI E. PAWASK AR (CONFIRMING PARTY), M/S. MASS INDUSTRIES P. LTD. (LESSEE) AND M AHARASHTRA INDUSTRIAL DEVELOPMENT CORP. (LESSOR). THIS AGREEME NT WAS BASICALLY FOR THE PURPOSE OF TRANSFERRING THE LEASE, STANDING IN THE NAME OF SHRI E. PAWASKAR, TO M/S. MASS INDUSTRIES P. LTD. AS THE LESSOR, IN THIS CASE WAS MIDC, IT WAS NECESSARY TO HAVE A TRIPARTITE AGR EEMENT. IT IS THIS AGREEMENT IN WHICH THE MARKET VALUE HAS BEEN DETERM INED AT ` 33,78,500. HENCE, THERE IS NO DOUBT THAT THE VALUAT ION FOR STAMP DUTY PURPOSES INCLUDED THE VALUE OF THE LEASE OF LAND, W HICH BELONG TO THE INDIVIDUAL SHRI E. PAWASKAR. AS THE ASSESSEE IS ONL Y THE OWNER OF THE BUILDING, THE TOTAL VALUATION OF THE LAND AND BUILD ING CANNOT BE TAKEN AS THE SALE CONSIDERATION FOR COMPUTING THE LTCG. 6.4 EVEN OTHERWISE, I FIND THAT THE PROVISIONS OF S UB-SECTION (2) OF SECTION 50C VERY CLEARLY STATE THAT WHERE THE ASSES SEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASS ESSED BY THE STAMP VALUATION AUTHORITY IS MORE THAN THE FAIR MARKET VA LUE, THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE VALUATION OF FICER. I HAVE PERUSED THE APPELLANTS SUBMISSION MADE BEFORE THE ASSESSIN G OFFICER DATED 11.10.2006, WHEREIN OBJECTION HAS BEEN RAISED AGAIN ST ADOPTING THE STAMP DUTY VALUATION. HENCE, THE ASSESSING OFFICER WAS DUTY BOUND TO HAVE REFERRED THE MATTER TO THE VALUATION OFFICER. IN VIEW OF THE ABOVE FACTS, THE ASSESSING OFFICER IS DIRECTED TO TAKE TH E CONSIDERATION, WHILE COMPUTING THE LONG TERM CAPITAL GAIN, AT ` 23,75,000. 7. WE DO NOT FIND ANY INFIRMITY IN THE AFORESAID FINDI NGS OF THE COMMISSIONER (APPEALS) AND THE SAME IS HEREBY UPHEL D. EVEN OTHERWISE, SECTION 50C, READS AS FOLLOWS:- SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES . 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUI NG AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEI NG LAND OR BUILDING OR M/S. PAWASKAR SHIPPING & TRADING CO. P. LTD. ITA NO.872/M./2008 5 BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORITY) FOR THE PURPOS E OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE S O ADOPTED OR ASSESSED [OR ASSESSABLE] SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RE CEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFIC ER THAT THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE STAMP VA LUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABL E] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT B EEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BE FORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING O FFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFIC ER AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISIONS OF SUB-SECTIONS ( 2), (3), (4), (5) AND (6) OF SECTION 16A, CLAUSE (I) OF SUB-SECTION (1) A ND SUB-SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 19 57 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN REL ATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT. [EXPLANATION 1].FOR THE PURPOSES OF THIS SECTION , VALUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SEC TION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). [EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, THE EXPRESSION ASSESSABLE MEANS THE PRICE WHICH THE STAMP VALUAT ION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANYTHING TO THE CONTRAR Y CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR A SSESSED, IF IT WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY.] (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE STAMP VALUATION AUT HORITY REFERRED TO IN SUB-SECTION (1), THE VALUE SO ADOPTED OR ASSESSE D [OR ASSESSABLE] BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER.] 8. THE MUMBAI BENCH OF THE TRIBUNAL IN ATUL G. PAURANI K V/S ITO, HELD AS FOLLOWS:- M/S. PAWASKAR SHIPPING & TRADING CO. P. LTD. ITA NO.872/M./2008 6 S. 50C DOES NOT APPLY TO TRANSFER OF LEASEHOLD RI GHTS AS IT IS NOT LAND OR BUILDING THE ASSESSEE WAS ALLOTTED A PLOT OF LAND (ON LEASE BASIS) UNDER THE 12.5% GAOTHAN EXPANSION SCHEME BY CIDCO IN LIEU O F AGRICULTURAL LAND OWNED BY THE ASSESSEES FATHER. THE ASSESSEE A SSIGNED THE SAID LEASEHOLD RIGHTS FOR RS. 2.50 CRORES AND CLAIMED TH AT AS THE ORIGINAL AGRICULTURAL LAND WAS NOT A CAPITAL ASSET U/S 2(14) (III), THE LEASEHOLD RIGHTS RECEIVED FROM CIDCO WAS ALSO NOT A CAPITAL A SSET AND SO THE GAINS WERE NOT TAXABLE. ALTERNATIVELY, IT WAS ARGUE D THATTHE COST OF ACQUISITION OF THE LEASEHOLD RIGHTS SHOULD BE TAKEN AT ITS MARKET VALUE ON THE DATE OF ALLOTMENT. THE AO & CIT (A) REJECTED THE CLAIM ON THE GROUND THAT (I) THOUGH THE ORIGINAL LAND ALLOTTED W AS AGRICULTURAL, THE LEASEHOLD RIGHTS WERE NOT, (II) AS THE LEASEHOLD RI GHTS WAS RECEIVED BY THE ASSESSEE AS LEGAL HEIR, THE COST OF ACQUISITION HAD TO BE TAKEN TO BE THE COST TO THE PREVIOUS OWNED U/S 49 AND (III) AS THE STAMP DUTY VALUE WAS HIGHER THAN THE CONSIDERATION, S. 50C APP LIED. ON APPEAL TO THE TRIBUNAL, HELD: (I) THERE WERE TWO DISTINCT ASSETS & TWO DISTINCT T RANSACTIONS. THE FIRST ASSET WAS THE AGRICULTURAL LAND WHICH WAS ACQUIRED AND IN LIEU OF WHICH THE LEASE OF THE CIDCO PLOT WAS GIVEN. THE GAINS FR OM THIS WERE TAXABLE IN THE YEAR OF ALLOTMENT OF THE PLOT. THE S ECOND ASSET WAS THE LEASEHOLD RIGHTS IN THE PLOT WHICH WAS ASSIGNED FOR RS. 2.5 CRORES. THE SECOND ASSET, NAMELY, THE LEASEHOLD RIGHTS, CANNOT BE CATEGORIZED AS AGRICULTURAL LAND WITHIN THE MEANING OF S. 2(14)(II I) AND SO THE ASSESSEE WAS LIABLE TO CAPITAL GAINS; (II) U/S 49(1), THE COST OF ACQUISITION OF AN ASSET ACQUIRED BY INHERITANCE IS THE COST TO THE PREVIOUS OWNER. IT I S A SINE QUA NON THAT THE CAPITAL ASSET ACQUIRED BY THE ASSESSEE BY INHER ITANCE SHOULD BE THE SUBJECT MATTER OF TRANSFER AND NOT ANY OTHER ASSET. ONCE THE INHERITED CAPITAL ASSET IS TRANSFERRED AND ANOTHER CAPITAL AS SET IS ACQUIRED, S. 49(1) DOES NOT APPLY TO SUCH CONVERTED ASSET. WHILE THE ASSESSEE HAD INHERITED THE AGRICULTURAL LAND, HE HAD NOT INHERIT ED THE RIGHT TO GET THE LEASE OF THE PLOT AND SO THE VALUE OF THE LAND WAS NOT THE COST OF THE RIGHT TO GET LEASE; (III) TO DETERMINE THE COST OF ACQUISITION OF THE L EASE RIGHTS, THE MARKET VALUE OF THE LEASE RIGHTS ON THE DATE OF ALLOTMENT HAS TO BE TAKEN. THIS IS BECAUSE THE ALLOTMENT OF THE LEASE RIGHTS CONSTI TUTED FULL VALUE OF CONSIDERATION FOR THE TRANSFER OF THE AGRICULTURAL LAND AND ONCE A PARTICULAR AMOUNT IS CONSIDERED AS FULL VALUE OF CO NSIDERATION AT THE TIME OF ITS PURCHASE, THE SAME SHALL AUTOMATICALLY BECOMES THE COST OF ACQUISITION AT THE TIME WHEN SUCH CAPITAL ASSET IS SUBSEQUENTLY TRANSFERRED; (IV) S. 50C IS A DEEMING PROVISION WHICH EXTENDS ON LY TO A CAPITAL ASSET WHICH IS LAND OR BUILDING OR BOTH. A DEEMIN G PROVISION CANNOT M/S. PAWASKAR SHIPPING & TRADING CO. P. LTD. ITA NO.872/M./2008 7 BE EXTENDED BEYOND THE PURPOSE FOR WHICH IT IS ENAC TED. IF A CAPITAL ASSET CANNOT BE DESCRIBED AS LAND OR BUILDING OR B OTH, S. 50C CANNOT APPLY. A LEASE RIGHT IN A PLOT OF LAND IS NEITHER LAND OR BUILDING OR BOTH. THE DISTINCTION BETWEEN A CAPITAL ASSET BEIN G LAND OR BUILDING OR BOTH AND ANY RIGHT IN LAND OR BUILDING OR BOTH IS WELL RECOGNIZED. LAND OR BUILDING IS DISTINCT FROM ANY RIGHT IN L AND OR BUILDING. CONSEQUENTLY, S. 50C DOES NOT APPLY TO LEASEHOLD RI GHTS. 9. RESPECTFULLY FOLLOWING THE AFORESAID FINDINGS OF TH E TRIBUNAL, WE UPHOLD THE ORDER OF THE COMMISSIONER (APPEALS) AND DISMISS THE GROUND RAISED BY THE REVENUE. 10. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.7.2011 SD/- ASHA VIJAYRAGHAVAN JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 29.7.2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, K BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI