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TMI Blog2016 (3) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject, the learned Commissioner of Income-tax (Appeals) has erred...... 2. The appellant craves leave to amend, alter or add to the above grounds of appeal. 1. Ld. CIT (A) erred in law and on facts in confirming action of AO in adopting FMV (Fair Market Value) of Rs. 20/- per sq ft in place of Rs. 30/- adopted by the appellant as on 01/04/1981. Ld. CIT (A) further erred in not appreciating the fact that AO ought to have referred the valuation to DVO instead of estimating FMV himself. Ld. CIT (A) ought to have accepted FMV adopted by the appellant based on valuation report and comparable sale instance instead of confirming ALV taken by AO unprofessionally. 2. Ld. CIT (A) erred in law and on facts in not admitting sale instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4B/234C & 234D of the Act is not justified. 6. Initiation of penalty u/s 271 (l)(c) of the Act is not justified. 2. Briefly stated facts are that the case are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order dated 02/12/2011, thereby the Assessing Officer (AO in short) computed the Long Term Capital Gain (LTCG) of Rs. 7,43,86,860/- against the claim of assessee of Rs. 6,67,55,289/-, while adopting a different cost of acquisition @ Rs. 20 per sq.ft. as on 01/04/1981. The assessee being aggrieved by the assessment order, preferred an appeal before the ld.CIT(A), who after considering the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee shall not given sufficient opportunity and the authorities below have adopted the different cost of acquisition unilaterally without being supported by any evidence. 3.1. On the contrary, the ld.Sr.DR Shri A.K. Pandey opposed the submissions of the ld.Sr.counsel for the assessee and submitted that there is no illegality into the action of the authorities below. The assessee had itself had not given any justification for adopting the value at Rs. 30/- per sq.ft. The AO has adopted the valuation on the basis of sale instances. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. The assessee has placed Valuation Report by an authorized valuer who has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1. On the other hand, the ld.Sr.DR supported the orders of the authorities below. 7. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has given direction in respect of unabsorbed depreciation at page No.12 of his order, which read as under:- (1) Brought forward depreciation for and upto AY 1996-97 (termed as 'First unadjusted depreciation allowance' by Hon'ble (ITAT), i.e. for AYs 1990- 91, 1991-92, 1993-94, 1995-96 & 1996-97 as per chart above could have been set off upto AY 2004-05 only. The same cannot be set off in AY 2008-09. (2) Unabsorbed depreciation pertaining to AYs 1997-98, 1993-94 & 1999- 2000 (termed as Second un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years for carry forward and set off of unabsorbed depreciation. The amendment is applicable from assessment year 2002-03 and subsequent years. This means that any unabsorbed depreciation available to an assessee on 1st day of April, 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001 and not by the provisions of section 32(2) as it stood before the said amendment. Had the intention of the Legislature been to allow the unabsorbed depreciation allowance worked out in A.Y. 1997-98 only for eight subsequent assessment years even after the amendment of section 32(2) by Finance Act, 2001 it would have incorporated a provision to that effect. However, it does not contain any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absorption from the profits and gains from any other business or business, if any, carried on by the assessee. If a balance is left even thereafter, that becomes deductible from out of income from any source under any of the other heads of income during that year. In case there is a still balance left over, it is to be treated as unabsorbed depreciation and it is taken to the next succeeding year. Where there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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