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2016 (3) TMI 1385 - AT - Income TaxAdditional depreciation claim @ 50% - HELD THAT:- It is not in dispute that the assessee has installed the machinery during the earlier assessment year and the machinery installed is entitled for additional depreciation. However, the Assessing Officer restricted additional depreciation @ 10% since the machinery was used by the assessee for less than 180 days. The question arises for consideration is whether the balance 10% of the additional depreciation can be allowed during the year under consideration or not. This issue was examined by the Cochin Bench of this Tribunal in Apollo Tyres Ltd. [2014 (1) TMI 33 - ITAT COCHIN]. The Cochin Bench found that the additional depreciation can be allowed in the next year in case the same cannot be allowed in the earlier year. Assessee is eligible for additional depreciation which was not allowed in the earlier year. Accordingly, the orders of the lower authorities are set aside and the Assessing Officer is directed to allow the balance additional depreciation. Computation of capital gains - ‘transfer’ u/s 2(47) - year of assessment - HELD THAT:- The physical possession of the property was handed over for carrying out the development activities. The assessee has also granted exclusive right to the developer to sell the property to various prospective purchasers. A bare reading of this agreement clearly shows that the assessee can get back 30% of the constructed area in lieu of 70% of the undivided share in the land given to the developer. Therefore, by way of an arrangement, the property was handed over to the developer for development. This kind of arrangement may not be ‘transfer’ under common law. However, Income-tax Act, 1961, specifically defines an arrangement between the parties as ‘transfer’ u/s 2(47) of the Act. This arrangement enables the developer to enjoy the property as its own or to sell the property as its own. Therefore, in view of this specific definition in sec. 2(47)(vi) of the Act, this Tribunal is of the considered opinion that there was a transfer of property during the year under consideration within the meaning of sec. 2(47) of the Act. Therefore, the capital gain has to be assessed only during the year under consideration. This Tribunal do not find any reason to interfere with the order of the CIT(A). Accordingly, the same is confirmed.
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