Endeavour Estates P. Ltd. vs Assistant Commissioner of Income Tax

Deepak Varma, J.—Heard Sri Parthasarathi, learned Counsel for the appellant on the question of admission. By perusing the records and after having heard learned Counsel for the appellant we are of the considered opinion that this appeal has no substantial question of law:

The short facts are as under:

The appellant-assessee had executed a sale deed in favour of M/s. McDowell and Co. Ltd. on March 30,1999, for sale of three acres of land together with building constructed thereon for a total sum of Rs. 2,50,00,000. On the same date a separate agreement was entered into between the parties granting right of way to M/s. McDowell and Co. Ltd. to gain access to the land and building purchased by it. This agreement was valued at Rs. 42,00,000. According to the assessee, both the transactions were different.

At the time of assessment u/s 144 of the Act, long-term capital gain was computed at Rs. 42,77,421. After the assessment was reopened on March 17, 2004, on the ground that for the assessment year 2001-02, the assessee had shown an amount of Rs. 41,00,000 under the head liabilities. On enquiry, it was clarified that this amount relates to sale of right to gain access to the property purchased by M/s. McDowell and Co. Ltd. According to the Assessing Officer, the assessee should have a sale proceeds of Rs. 2,92,00,000 which includes the right to access of Rs. 42,00,000 also, since Rs. 42,00,000 was being disclosed by the assessee as sale proceeds. In the reassessment proceedings, it was explained by the assessee that Rs. 42,00,000 received by the assessee towards the rental charges for permanent use of road which is advanced for maintenance charges and the ownership of this piece of land has never been transferred to M/s. McDowell and Co. Ltd.

The Assessing Officer considered the sale deed executed by the assessee in favour of M/s. McDowell and Co. Ltd. and referred to para 2 thereof which mentions that the right of way for the ingress and egress between the schedule property and the nearest road with all other privileges, easements, rights, incidental to the ownership and enjoyment of the schedule property has been provided. Thus, considering the different clauses of the sale deed, it was held that it is a composite sale deed of land, building and right of way.

In this view of the matter receipt of Rs. 42,00,000 said to have been received by the assessee from M/s. McDowell and Co. Ltd. for use of road was considered for purposes of computing long-term capital gain. Against this finding the assessee filed the appeal before the Tribunal. The Tribunal also considered the matter from all angles and thereafter came to the conclusion that since the sale deed itself mentions with regard to right of use of the road by McDowell and Co. Ltd., therefore, there was no reason why separate agreement for a sum of Rs. 42,00,000 granting right to use the road should have been executed between the parties. Thus, the Tribunal was of the view that appeal of the assessee before it did not have any merit and substance, hence the same came to be dismissed. Against this order, the assessee is before us challenging the correctness, propriety and legality of the same u/s 260A of the Act.

In our considered opinion, the appeal does not show or reflect any substantial question of law, which may be required to be answered by us. It is pure finding of fact, which has been recorded by the Tribunal and other lower authorities. Thus, no case for interference. The appeal is devoid of the merits.

Hence, the appeal is dismissed.