Sec 50C Not Apply to Transfer of FSI & TDR

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INCOME TAX APPELLATE TRIBUNAL, MUMBAI

ITA No.5803/Mum/2009 – (Assessment year: 2006-07)

Income-tax Officer

Vs

Shri Prem Rattan Gupta

Date of Pronouncement: 28.03.2012

 

Assessee has given the right of the additional FSI/TDR which the assessee was otherwise entitled to get from the local body / Government for the acquisition of the land if the assessee has not taken any consideration. So far as issue of the TDR is concerned, the value of the TDR cannot be the subject matter of sec. 50C and admittedly, the assessee gets additional FSI / TDR only after the acquisition of the land. As per the Land Acquisition Act once the notification is issued then assessee loses the title of the land or property. Ultimately, what has to be considered is the net area available with assessee for transferring to the Developer.

The Ld. D.R. relied on the decision of the Hon’ble High Court of Bombay in the case of Chedda Housing Development vs. Babijan Shekh Farid – 2007 (3) ML 402 (Bom) in which their Lordships have interpreted the definition of ‘immovable property’ under General Clauses Act, 1897. In our humble opinion, the term ‘immovable property’ has a very wide meaning then the words ‘land and building’. Sec.50C refers to land and building and not to immovable property as whole. Hence, the reliance placed by the Ld. D.R. on the decision of the Hon’ble jurisdictional High Court in case of Chedda Housing Corporation (supra) is not helpful to the revenue.