TMI Blog2013 (5) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and in the circumstances of the case and in law the ld.CIT(A) has erred in deleting the addition made by the A.O. on account of Long Term Capital Gain at for A.Y. 2003-2004 ₹ 2,44,58,768/- and for A.Y.2004-05 ₹ 8,06,06,944/-. by relying upon the decision of the Hon ble ITAT in the assessee's case which in turn had erroneously relied upon the decision of Hon'ble Supreme Court in the case of K.P. Varghese (1981) 131 ITR 597 (SC) which is inapplicable to the unique l acts and circumstances of the case. 2. On the facts and in the circumstances of the case and in lass the ld.CIT(A) has erred in deleting the addition of for A.Y. 2003-2004 ₹ 2,44,58,768/- and for A.Y.2004-05 ₹ 8,06,06,944/- without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration is covered in favour of the assessee with the decision of the ITAT, Ahmedabad in assessee s own case for the subsequent assessment years 2005-2006 in ITA No.3381/Ahd/2008 order dated 17-2-2009, and also for the assessment year 2006-2007 in ITA No.1396/Ahd/2009 in ITA No.1396/Ahd/2009 dated 1-7-2009 wherein in identical facts the issue was decided in favour of the assessee. He submitted that even after deleting the provision of section 52(1) from the statute, the ratio of K.P.Varghese s case is still applicable, and for making a valid addition, some material has to be brought on record by the department to prove that the assessee has received some more consideration, over and above apparent consideration, as mentioned in the regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08. It is also undisputed fact that during the period from 1999 to 2007, the assessee has sold out its machinery and has also demolished all the factory building, and cleared the land. The assessee was under heavy liability of payment of dues to its ex-employees. The matter has travelled till the level of the Hon ble High Court, which has directed and empowered the President of the Employees Union to sell the land in question. In the facts of the case, there seems to be no justification for substituting the apparent sale consideration of the land in question with an estimate of the fair market value of the land in question, and particularly so, in view of absence of any material brought on record to suggest the understatement of the sale c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the expenses incurred by the assessee should have been allowed as deductible under the head Business Income of the assessee. The learned DR submitted that the assessee has not conducted any business, and therefore no expenses could be allowed to be claimed as deduction by the assessee. 9. We have considered rival submissions and have perused the orders of the AO and the CIT(A). We find that there is no merit in the CO of the assessee. There was complete stoppage of business in the year 1999 and the assessee has admitted that no business was transacted till the year 2007. In these facts, we hold that the CIT(A) was justified in not allowing the expenses as deductible in the hands of the assessee. Accordingly, the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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