TMI Blog2017 (11) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the gain arising from the said property will be assessed under the head Short term capital gain. In case it is found that the said company has not clamed any depreciation under the Income tax Act, the gain so arising shall be assessed under the head Long term capital gain. Eligibility of cost of indexation as per the provisions of section 48 - Held that:- The assessment of the said income shall be made on the assessee in the like manner and the same extent as it would have been made on the predecessor i.e. M/s. Super Leasing Ltd, the demerger company. Now the question arises if the return has to be filed by M/s. Super Leasing Ltd, naturally it would have been entitled to claim indexation in view of the provisions of section 48 from the financial year in which it had purchased the said property. The reliance on Explanation 3 to section 48 by the Revenue, in our view, will not assist the Revenue. It is case where the said property has not been sold by the assessee but, in fact, it has been sold by M/s. Super Leasing Ltd. vide sale deed executed on 16.07.2010 i.e. date prior to the order passed by the Hon’ble Bombay High Court. It is a fact that Bombay High Court has approved th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isted be disregarded at all. 3. The authorities below also erred in ignoring the fact that the appellant company had not sold the capital asset but it was sold by the predecessor company namely, Super Leasing Ltd. on 15.7.2010 and the appellant had not claimed any exemption u/s 47 in respect of capital gain and the appellant being the successor, is sought to be taxed u/s 170 on the capital gain of: the predecessor relating to the year of succession and therefore, the entire approach of the lower authorities is unsustainable. 4. The authorities below also erred in not rectifying the mistake in calculation of tax and interest wrongly worked u/s 115JB as ₹ 73,44,900/- and had thereby raised the illegal demands impermissible in law. Ground nos. 1 to 3 relate to the issue whether the gain arising to the assessee on the sale of building for a consideration of ₹ 2,70,00,000/- will be assessable under the head Long term capital Gains as claimed by the assessee or will be assessable as per the provisions of section 50 of the Income tax Act. 3. The brief facts of the case that the assessee while filing income tax return has shown income from house property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any has claimed depreciation on the transfer of capital assets being the building and computed the capital gain by deduction of actual cost of ₹ 34,40,000/- out of the sale consideration. The assessee went in appeal before the CIT(A), who confirmed the order of the Assessing Officer determining the Short term capital gain at ₹ 2,35,60,000/- 4. We have heard the rival submissions and carefully considered the same along with the orders of the tax authorities below. We noted that as per the scheme of arrangement u/s. 391 to 394 of the Companies Act to transfer investment and property management business of Super Leasing Ltd. on a going concern basis to the assessee became effective on 19.02.2011 on getting requisite approvals and completion of necessary formalities. The Hon ble High Court approved the said scheme of demerger vide its order dated 23.12.2010. The said property being C-676, New Friends Colony, New Delhi, was sold for a consideration of ₹ 2,70,00,000/- which was earlier acquired by M/s. Super Leasing Ltd by virtue of separate sale deed dated 11.12.1997. The sale deed of the said property was executed by M/s. Super Leasing Ltd. on 16.07.2010 i.e. befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that the Assessing Officer has applied the provisions of section 50 on the basis of the statement of deprecation as on 01.10.2010, which according to the assessee represent the depreciation claimed under the Companies Act. We, therefore, in the interest of justice and fair play to both the parties set aside this issue and restore the matter to the file of the Assessing Officer with the direction that the Assessing Officer shall re-decide the issue after going through the facts of the case i.e. whether M/s. Super Leasing Ltd. has claimed depreciation under the Income tax Act in respect of the said property sold by the assessee or not. In case, it is found that M/s. Super Leasing Ltd. has claimed depreciation under the Income tax Act, the provisions of section 50 would apply and the gain arising from the said property will be assessed under the head Short term capital gain. In case it is found that the said company has not clamed any depreciation under the Income tax Act, the gain so arising shall be assessed under the head Long term capital gain. 6. Now the next question arising in this appeal is in case of the gain so arising as to be assessed under the head Long term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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