TMI Blog2010 (12) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8,91,460 continues to remain the same since its purchase in 1999. It shows that no depreciation was ever claimed or allowed on this property - In that view of the matter the provisions of s. 50 cannot be applied - Decided in favour of the assessee - ITA No. 5396/Mum/2009; - - - Dated:- 20-12-2010 - R.S. Syal, Vijay Pal Rao, JJ. P. Daniel and S.M. Makhija for the Appellant Jitendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled upon the assessee to explain as to why provisions of s. 50 be not applied. The assessee tendered its explanation stating that though the property was included in the block of assets but neither it was used for the purpose of business nor any depreciation was claimed thereon. It was also stated that the assessee was carrying on its business from a rented premises at Bandra (East) and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (42A) of s. 2, where the capital asset is an asset forming part of a block of assets in respect of which depreciation has been allowed under this Act or under the Indian IT Act, 1922 (11 of 1922), the provisions of ss. 48 and 49 shall apply subject to the following modifications:- (1) where the full value of the consideration received or accruing as a result of the transfer of the asset togeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital assets in the circumstances mentioned in the section as short-term capital gain, it is necessary that the conditions mentioned in the opening lines of s. 50 be fulfilled viz.:- (i) the capital asset should be an asset forming part of block of assets, and (ii) depreciation should have been allowed on it under this Act or under the Indian IT Act, 1922. It is only on the fulfilmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et for assessment year under consideration at Rs. 8,91,460 continues to remain the same since its purchase in 1999. It shows that no depreciation was ever claimed or allowed on this property. In that view of the matter the provisions of s. 50 cannot be applied. We, therefore, overturn the impugned order on this issue and hold that the long-term capital gain declared by the assessee be accepted as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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