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TMI Blog2008 (4) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... enue's appeal was also connected with this ground and the issues raised in this ground were to be adjudicated in the light of the decision of the Special Bench of the Tribunal in the case of AMWAY Enterprises vs. DCIT as reported in 114 TTJ 476, hence, the matter could be restored to the file of the AO to decide the same accordingly. 6. The Ld. Departmental Representative also agreed. 7. Hence, Ground No. 1 of the assessee's as well as the Revenue's appeal stands allowed for statistical purposes. 8. In Ground No. 2 the assessee is aggrieved by the decision of the Learned CIT (A) in confirming the decision of the AO in respect of disallowance of the claim of Bad Debts to the tune of ₹ 28,13,116/- as Bad Debts. The Ld. Counsel contended that this issue was also raised in Ground No. 3 in Revenue' appeal because the Learned CIT (A) gave partial relief. 9. The facts, in brief, are that the Assessee company claimed sum of ₹ 61,71,622/- as Bad Debts. The AO asked the assessee to explain the nature of these items. Based upon the enquiries made by him, the AO held that the Assessee-Company failed to establish the fact that these debts had become bad debts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t claims were less than 1% of the gross receipts of the assessee and these bad debts mainly arose out of legal disputes/commercial claims made by the assessee upon the clients which were not accepted by the clients. The Ld. Counsel further contended that the department's interests were duly protected because as and when the assessee would receive the payments, it would offere the same as income. 11. The Ld. Departmental Representative, on the other hand, contended that the assessee did not show the Books of Account to establish the fact that these amounts had been shown as income of the assessee earlier, hence, the claim of the assessee was rightly rejected by the Assessing Officer. The Ld. Departmental Representative also stated that the Learned CIT (A) deleted the clam of the assessee in respect of small amounts, however, the amount was insignificant as against the principle of law whereby the assessee was required to prove the fact that the debt had actually become bad. The Ld. Departmental Representative further contended that the Hon'ble High Court in the decision as reported in 162 Taxman page 114 and the Hon'ble Madras High Court in the case of South India Surgi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm capital gin of the assessee on Sale of property amounts to ₹ 98,81,480/- in stead of ₹ 35,33,936/- as claimed by the Appellant." 14. The facts, in brief, are that the Assessee acquired property in the Financial Year 1993-94 for a total consideration of ₹ 3,91,984,301/- which was paid during the period beginning from that year till the Financial Year 200-01. The assessee also incurred certain expenses towards cost of improvement of this property and paid the property tax. The assessee, accordingly, worked out the total cost of acquisition at ₹ 4,36,009,330/-. This property was sold in the year under consideration for a sale consideration of ₹ 7,54,00,000/-. In working 9ut the capital gain, the assessee computed the Index Cost of Acquisition in regard to the cost of the property by taking 1993-94 as base year for the total consideration agreed to be paid by the assessee and in respect of Cost of Improvement by indexing the same based upon incurrence of the expenditure in respective years. The AO, however, was of the opinion that as per the Provisions of Explanations (iii) and (iv) of section 48, indexed cost had to be worked out based upon yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by following the decision of the Tribunal in the case of Charan Bir Singh Jolly (supra). In this view of the matter, we hold that the Order of the Learned CIT (A) is not correct in law and, therefore, we reverse the same and direct the AO to accept the amount of the Long Term Capital Gain, as worked out by the assessee. Thus, this ground of the assessee is accepted. 17. Ground No. 4 reads as under: "4. On the facts and in the circumstances of the case, the learned C ('CIT (A)' has legally erred in holding that the interest under section 234D would be chargeable even in cases where the refund was granted prior to June 1, 2003 and the assessment order under section 143(3) was passed after the said date." 18. Both the parties agreed that this issue was pending before the Special Bench of the Tribunal, hence, this issue could be restored to the file of the AO to decide the same in accordance with the decision of the Special Bench of the Tribunal when pronounced and also to take into consideration the decision of the higher judicial forum, if any, available at that time. Thus, this ground of the assessee stands disposed of in terms directed above. 19. These g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed depreciation of ₹ 13,66,148/- on the residential flats belonging to the company which were occupied by the Directors/Employees of the Assessee Company . The AO relying on the various judicial decisions and the provisions of Section 38 held that these residential flats could not be held as used business purposes, hence, he rejected the claim of the assessee regarding allowance of depreciation thereon. Aggrieved by this, the assessee carried the matter into appeal before the Learned CIT (A) wherein it was submitted that the judicial decisions, relied on by the AO, were related to the provisions of Section 40(c) and 40A(5) of the Act, hence, not relevant. It was also contended that the provisions of Section 38 were also not applicable as these flats were utilized by its employees all the times. The Learned CIT (A) agreed with the submissions of the assessee and directed the AO to allow depreciation thereon. Aggrieved by this, the Revenue is in appeal before us. 27. The Ld. Departmental Representative narrated the facts and placed strong reliance on the Order of the Assessing Officer. 28. The Ld. Counsel for the Assessee narrated the facts and contended that the expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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