The Commissioner Of Income Tax v. M/S.rendezvous Estate Pvt. Ltd

(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1065 OF 2007 The Commissioner of Income Tax..Appellant Vs. M/s.Rendezvous Estate Pvt. Ltd. ..Respondent Mr. Suresh Kumar with Mr. P.S. Sahadevan, for the Appellant Mr. J.D. Mistri with Ms.S. Vedpathak i/b.Maneksha & Sethna, for the Respondent. CORAM: F.I.REBELLO&R.S.MOHITE, JJ.DATED: 16th March, 2009 CORAM: F.I. R.S.MOHITE, JJ. DATED: 16th March, 2009 P.C.: P.C.: . Revenue is in Appeal on the following questions:- (i) Whether in the facts and circumstances of the case and in law the ITAT is right in deleting the addition of Rs.63,15,653/- on account of income on transfer of land. (ii) Whether in the facts and in the circumstances of the case and in law in ITAT is right in confirming the order of CIT (A) by holding that the lease in perpetuity is not a transfer, when u/s.269UA such leases are treated as transfer. 2. In the instant case, firstly, there is a (-2-) finding of fact recorded by C.I.T. (A) holding that the grant of lease by the assessee amounts to transfer within the meaning of Section 2(47). This finding which was against the assessee was not in issue before the Tribunal. In other words the finding that there is a transfer is not in dispute. The Tribunal notes that the controversy in the Appeal was whether the sum of Rs.72.00 lakhs taken by the assessee as a deposit, from which 50% of the rent would be adjusted every month can be considered to be premium or salami. The Tribunal noted that what has been deposited with the assessee is advance rent which would be adjusted towards the rent due and payable for the period of the lease. Considering the nature of the deposit it held that such deposit does not amount to a premium or salami and as such is not the subject to capital gains tax. 3. Our attention was also invited to the fact that in proceedings under Wealth Tax Act, the Wealth Tax Officer proceeded on the basis that the deposit was not a premium or salami. In our opinion, the finding of fact recorded by the Wealth Tax Officer and the finding of fact recorded by the Tribunal it cannot be said that the said findings are perverse considering the material on record. Under these circumstances the question of law as framed would not arise and consequently appeal is dismissed. (-3-) (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.)