New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (9) TMI 1183 - ITAT MUMBAI

2016 (9) TMI 1183 - ITAT MUMBAI - TM - Applicability of section 50 on transfer of building - non-depreciable asset - calculation of short term capital gain against long term capital gain claimed by the appellant - Held that:- 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 b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aluation 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 ₹ 1200/- per square meter to ₹ 1300/- square meter by applying provisions of section 50C of the Income Tax Act. Even otherwise no opportunity of being heard was granted be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

umbai dated 19.7.2010 for A.Y. 2006-07. 2. Following additional grounds raised by the assessee :- 1) The learned CIT(A) erred in confirming the applicability of section 50 on transfer of building and accordingly calculated short term capital gain against long term capital gain claimed by the appellant. 2) The learned CIT(A) erred in confirming the action of the AO regarding substitution of full value consideration from ₹ 1200/- per square meter to 1300/- per square meter without considerin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tting out of property and providing services such as supplying water, continuous electricity, maintenance of garden and other facilities that may be required. The assessee filed its return of income on 17.1.2006 declaring income of ₹ 6,09,698/- which was processed u/s. 143(1) and thereafter the assessment has been completed u/s 143(3) on 30.10.2008 determining total income at ₹ 42,53,560/-. During the course of assessment proceedings the Assessing Officer treated the income from capi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

/- per square meter to ₹ 1300 per square meter. Aggrieved by the order of learned CIT(A), the assessee filed the appeal before us on the grounds mentioned herein above. Ground No. 1: 4. At the very outset, learned AR appearing on behalf of the assessee submitted that learned CIT(A) grossly erred in confirming the applicability of section 50 on transfer of building and accordingly calculated short term capital gains against long term capital gains. Learned AR submitted that section 50 is ap .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssessee 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 from house property and the assessee has never claimed depreciation on the building and even no depreciation was allowed by the Department and therefore there is no application of section 50 of the Act. La .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Act, 1961 which reads as under :- Depreciation : In respect of depreciation of : (i) Buildings, machinery, plant or furniture, being tangible assets; (ii) Know-how, patents, copyrights, trademarks, licences, franchisees or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1st day of April, 1998, owned wholly and partly, by the assessee and used for the purposes of the business or profession the following deductions shall be allowed. Afte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rovisions 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 Divin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

long term capital gain declared by the assessee be accepted as such . We also rely upon the decision in the case of CIT Vs. Santosh Structural & Alloys Ltd. (20 taxmann.com 501)(Punjab & Har), wherein it was held that whether once Tribunal had recorded a categorical finding of fact that plant and machinery, which is covered by section 50, would be a depreciable asset and not one on which no depreciation was ever claimed, then such assets, which were not depreciable, could not ever be ass .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

than 36 months. Ground No. 2&3 : 7. 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 ₹ 1200/- per square meter to ₹ 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 there .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the Income Tax Act, 1961 it is apparent on the face of the record that the word assessable was introduced w.e.f. 1.10.2009 and the asset in the present case was transferred through unregistered documents therefore from bare perusal the provisions of section 50C are not attracted in the case of the assessee. In the instant case the assessee has transferred the asset through unregistered Deed of assignment the said fact is undisputed as the same has been mentioned by the Assessing Officer in t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version