TMI Blog2013 (5) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be computed only in accordance with the provisions of section 50. It is also a fact that the CIT (A) should have granted an opportunity to the AO while invoking the different provisions for the first time, deviating entirely from the manner of assessment done by the AO. It is also a fact that there is no dispute about the applicability of provisions of section 50C to the depreciable assets referred to in section 50 of the Act. Of course, assessee made a concession that for want of finality of the litigation he shall not make an issue regarding the adoption of the FMV of the land and building. Considering the above there is need for re-computation of the capital gains in accordance with the provisions of section 50 of the Act - appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the date of sale is 24.2.2009. 3. Even though the valuation u/s 50C was challenged by assessee before Assessing Officer requested Assessing Officer to refer the matter to valuation officer which was neither considered by Assessing Officer nor CIT (A)." 3. At the outset, bringing our attention to the grounds raised by the assessee, Shri B.R. Majithia, Ld Counsel for the assessee mentioned that the assessee aggrieved against the order of CIT (A) primarily for his arbitrarily decision of dividing the sale consideration of Rs. 1.35 Cr in the ratio of WDV of movable and immovable assets, when the said consideration is otherwise received on different grounds. Assessee is also aggrieved against invoking of provisions of section 50C of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) dated 24.11.2011 made the following additions under the head Capital Gain (Short Term). Particulars Amount added to Total Income Land and building valued u/s 50C-stamp Value, despite the fact that the sale transactions is attracted under slump sale u/s 50B as also agreed by the Assessing Officer. Less: Actual Short Term Capital Gains as claimed in return. Rs. 1,06,77,667/- Rs. 72,66,789?- Rs. 34,10,885/- STCG on sale of other assets (other than land and building) calculated as per section 50B ie Net Worth Method. The cost ie Net Worth of other assets is wrongly considered as Short Term Capital Gains instead of considering the same as Short Term Capital Loss against which no separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The proposition of full value of consideration received on all 12 assets (please refer para 2.4.13) Rs. 51,97,500/- WDV of all the assets as per Blanace Sheet Rs. 24,04,064/- Short term capital gain Rs. 27,90,436/- The total short term capital gain out of sale of land and building together with all the assets is now worked out as under:- STCG on Land and Building Rs. 1,06,77,667/- STCG on transfer of other assets Rs. 27,90,436/- Total Rs. 1,34,68,103/- The Assessing Officer is accordingly directed to assess the short term capital gain of Rs. 1,34,68,103/- as per provisions of section 50 of the IT Act. This ground of appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties as well as the paper book filed before us. There is no dispute on the facts and figures that the sale consideration of the movable and immovable assets of the restaurant is Rs. 1.35 Crs. Is it a case of slump sale? In our opinion, the answer is negative considering the retention of certain assets undisputedly. In such circumstances, we confirm the finding of the CIT(A) that it is not the case of a slump sale. Ex consequenti, we dismiss the AO's manner of invoking the provisions of section 50B of the Act relating to the slump sale. In the result the capital gains have to be computed only in accordance with the provisions of section 50 of the Act. It is also a fact that the CIT (A) should have granted an opportunity to the AO while invok ..... X X X X Extracts X X X X X X X X Extracts X X X X
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