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Primarc Story Venture Pvt Ltd (Formerly Tiger Commerce Pvt Ltd) Versus ACIT, Circle-3, Kolkata

2017 (12) TMI 530 - ITAT KOLKATA

Disallowance of depreciation - bifurcation of the total consideration towards land and building separately in view of fact that the assessee is not entitled for depreciation on land portion - Held that:- As relying on case ITO Ward-7 (3) , P-7, Kolkata Versus M/s Shree Banke Behari Enterprises Pvt. Ltd [2016 (10) TMI 582 - ITAT KOLKATA] we deem it fit and appropriate to remand this issue to the file of the Ld. AO with direction to the assessee to furnish the evidence in support of bifurcation of .....

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that:- DR fairly agreed for setting aside this issue to the file of the Ld. AO. Accordingly, we remand this issue to the file of the Ld. AO to decide the same in the light of the second proviso to section 40a(ia) of the Act and in the light of decision rendered by the Hon’ble Delhi High Court in the case of Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] - Ground no. 2 raised by the assessee is allowed for statistical purposes. - I.T.A No. 2049/Kol/2014 - Dated:- 6-12-201 .....

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ax Act, 1961 (in short the Act ) dated 31.12.2007 for the Assessment Year 2005-06. 2. The first issue to be decided in this appeal is as to whether the Ld. CIT(A) was justified in confirming the disallowance of depreciation in the sum of ₹ 8,20,000/- by the Ld. AO, in the facts and circumstances of the case. 3. The brief facts of this issue is that the assessee purchased a showroom comprising of land and building at No. 8, Elgin Road on outright basis for ₹ 3,28,00,000/-. The assesse .....

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onsideration amounting to ₹ 1,64,00,000/- towards land and disallowed depreciation thereon at 5% in the sum of ₹ 8,20,000/- (1,64,00,000 * 5%) in the assessment. This action was upheld by the Ld. CIT(A). Aggrieved, the assessee is in appeal before us on the following grounds: 1.i) That on the facts and circumstances of the case, Ld. CIT(A) has erred in relying the judgment in CIT vs Alps Theatre, 65 ITR 377 (SC) since the assessee purchased showroom at 8, Elgin Road on outright basis .....

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this Tribunal in the case of ITO vs. M/s Shree Banke Behari Enterprises Pvt. Ltd. in I.T.A. No. 350/Kol2013 for assessment year 2009-10 dated 26.08.2016 in support his arguments. We find the fact before this Tribunal in the aforesaid case are as under: 8. It was observed by the AO that Column no. 14 and Annexure A are missing from the Tax Audit Report with regard to the depreciation. On demand, assessee has provided the annexure showing the details of depreciation claimed by it on two properties .....

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14 ITD 286 (Delhi) has assumed the one third value of property as land and thus disallowed the proportionate depreciation on both the property amounting to ₹ 2,65,903/- (114648.00 plus 1,51,255). It has been held by this Tribunal as under: 11. We have heard the rival contentions and perused the materials available on record. At the outset, we find that assessee claimed to have made the investment in the aforesaid properties by paying composite amount. However, this fact has not been brough .....

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estion arose out of the following facts : The respondent, M/s Alps Theatre, hereinafter referred to as the assessee', carries on business as exhibitor of films. The ITO initiated proceedings under s. 34(1)(b) of the Indian IT Act, 1922, on the ground that in the original assessment depreciation was allowed on the entire cost of ₹ 85,091 shown as cost of the building which included ₹ 12,000 as cost of land. The ITO, by his order dt. 22nd Feb., 1959, recomputed the depreciation, ex .....

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mething has been constructed. It was, therefore, wrong on the part of the authorities below to exclude the valve of the land upon which some construction was made. The true meaning of the word building' means the land upon which some construction has been made. The two must necessarily go together." From the above details it is clear that the facts are different with the instant case. Similar facts were there in the case of DCIT Vs Capital Car Private Limited reported. However we find t .....

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to the vendor can be made and the entire amount is qualified for depreciation. However, if there is a clear cut identity in respect of price paid to the land and building (i.e. sale deed indicates price of land and building separately), then depreciation is available only on the building. In the instant case, the ld. AR has not brought produced the details of the payment of the composite payment. But he requested to restore the issue to the AO for verification and the ld. DR raised no objection .....

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AO with direction to the assessee to furnish the evidence in support of bifurcation of consideration towards land and building. We agreed with the fact that the assessee is not entitled for depreciation on the land portion. Hence, bifurcation of the consideration into land and building separately becomes necessary, for which purpose we are remanding this issue to the file of Ld. AO. Accordingly, ground no. 1 raised by the assessee is allowed for statistical purposes. 5. The next issue to be deci .....

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fore the Ld. CIT(A), the assessee pleaded that the assessee is engaged in the business of real estate and apart from this, it has a franchisee license of the book stores Crossword which is located at No. 8, Elgin Road, Kolkata. It was pleaded that this amount of ₹ 76,732/- represents Crossword Book Reward Programme Card printing charges on which no tax is liable to be deducted u/s 194C of the Act. In other words, it was pleaded that the same represents purchase of printing cards and not pr .....

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32/- together with supporting evidences were submitted by the assessee except making an oral statement thereon. Accordingly, he confirmed the disallowance of ₹ 76,732/- made u/s 40a(ia) of the Act. Similarly, with regard to payment of ₹ 40,000/- to the Times Internet he observed that the assessee has not established with evidences that provision of 194C of the Act are not applicable to this payment. Accordingly, he upheld the disallowance made u/s 40a(ia) of the Act. Aggrieved, the a .....

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