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TMI Blog2015 (1) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent this Court from considering the questions, because they are indeed the substantial questions of law. He submits that on each one of them there were reasons assigned by the Assessing Officer and by the Commissioner. The Tribunal does not refer or deal with them. It comes to the conclusion and in relation to the question at page 4, which did not either approve or modify the view of the Assessing Officer and the Commissioner. It is this approach of the Tribunal, which raises the substantial questions of law. 3. For instance, our attention is invited by Mr.Sureshkumar to the claims covered by these grounds to submit that the Tribunal erred in holding that the Assessee is entitled to capital gain on sale of the property, in respect of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 October 2001. The Assessing Officer observed that the Assessee had transferred land and building at Colaba for consideration of Rs. 8 crores and the agreement in that regard has been referred to. The property was purchased in the year 1973. The Assessee computed Long Term Capital Gain separately in respect of land and in respect of building, treating the building as non depreciable asset. The capital gain claimed was exempted under section 54EC, as the Assessee has made investment in NABARD Bonds. The Assessing Officer observed that the land and the building was purchased as composite unit and the sale was also composite. In such circumstances, the bifurcation or segregation was made in Assessment Year 2001-02 and earlier years no bifur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Rs. 1.5 lakh was not liable under section 35DDA. However, the deduction could have been claimed and allowed under section 37 of the Act only in the relevant year. Hence, merely invoking wrong provisions should not disentitle the Assessee from claiming the deduction if the same can be otherwise claimed and granted and with recourse to another provision in the Income Tax Act, 1961. In the present case, that was permitted and the reasons for the same as assigned in para 9.2 cannot be termed as vitiated by any error of law apparent on the face of the record. The Tribunal's approach also cannot be termed as perverse. We are of the view, therefore, that questions (a) & (b) cannot be said to be substantial questions of law. 8. With regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us. 9. The Division Bench in the case of Ace Builders (supra) deals with the situation where there was a firm in which the Assessee was a partner. It was dissolved. The Assessee was allotted a flat against the balance standing to its credit in the capital account with the firm. That flat was shown as capital asset in the books of account and depreciation was claimed and allowed from year to year. In the previous year relevant to the assessment year 1992-93 that flat was sold and net sale proceeds were invested in `UTI capital gains scheme' with view to claim deduction. Nil income was declared under the head "income from capital gains" for the assessment year 1992-93. There also the Assessing Officer denied the relief and on identic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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