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TMI Blog2016 (9) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant. 2) The learned CIT(A) erred in confirming the action of the AO regarding substitution of full value consideration from Rs. 1200/- per square meter to 1300/- per square meter without considering the facts that asset is transferred through unregistered document therefore provision of section 50C is not applicable because assessable word is introduced w.e.f. 1.10.2009. 3) The learned CIT(A) failed to consider that the Assessing Officer has not give any opportunity of being heard before using Rs. 1300/- as full value consideration. Hence, enhancement of consideration is bad in law. 3. Facts of the case are that the assessee is a private limited company engaged in the activities of letting out of property and providin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding over the land of the assessee is not a depreciable asset. Section 50 ipso facto cannot covert nondepreciable asset into depreciable asset. Learned AR further submitted that CIT(A) has wrongly confirmed the findings of the Assessing Officer wherein the Assessing Officer has wrongly mentioned that as per Explanation 5 of section 32 deemed depreciation is allowable on business asset applicable in the case of the assessee. Whereas building of the assessee was not being used for the purpose of business and therefore earning of rent from the premises/building was being treated as income from house property. Learned AR referred that rent received from the tenants was shown in the return and the same was being assessed under the head income fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and income derived from rent is being taxed as house property, therefore the assessee is not entitled for deprecation on the building and since the assessee is not entitled for depreciation on the building therefore, provisions of section 50 are not applicable as the same being a special provision for computation of capital gains in the case of depreciable assets. In the present case no asset is depreciable asset, hence provisions of section 50 are not applicable and since plot and construction being an investment, for earning rent therefore, for the purpose of calculating long term capital gain indexed cost is to be calculated for both plot as well as structure. We rely upon the decision in the case of Divine Construction Co. Vs. ACIT (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ground No. 2&3 are taken together. Regarding these grounds learned AR submitted that learned CIT(A) erred in confirming the action of the Assessing Officer regarding substitution of full value consideration from Rs. 1200/- per square meter to Rs. 1300/- square meter. The Assessing Officer has no power to substitute value shown by the assessee. Learned AR further submitted that since the asset was transferred through unregistered document therefore provision of section 50C is not applicable because the word 'assessable' was introduced w.e.f. 1.10.2009 and without giving opportunity of being heard before using Rs. 1300/- per square meter as full value consideration is bad in law. Therefore findings of learned CIT(A) deserves to be aside. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod as the sale agreement in question was unregistered document and was not assessed by the stamp valuation authorities. The word "assessable" has been incorporated only w.e.f. 1.10.2009 (Finance Act 2009), therefore, provision of section 50C will not apply on unregistered documents. Hence learned CIT(A) wrongly confirmed the action of the Assessing Officer regarding substitution of full value consideration from Rs. 1200/- per square meter to Rs. 1300/- square meter by applying provisions of section 50C of the Income Tax Act. Even otherwise no opportunity of being heard was granted before switching over from Rs. 1200/- per square meter to Rs. 1300/- per square meter which is even otherwise bad in law and against the principles of natural ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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