TMI Blog2019 (10) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... al the learned AO has raised an issue that taking the valuation of land as per approved valuer s report means that the land purchased in 1993 has not been distinguished for the taxation purposes separately. However, no evidence has been produced before us that the impugned land sold by the assessee is acquired post 1 /4/1981. In view of this ground number 1 of the appeal is dismissed. Chargeable to tax as per the provisions of section 112 - HELD THAT:- The above issue now is squarely covered by the decision of Dempo Co Ltd [ 2016 (10) TMI 62 - SUPREME COURT] wherein it has been held that section 50 of the income tax act is a special provision for computing the capital gain in the case of depreciable asset is only restricted for the purpose of the provisions of section 48 of section 49 of the income tax act specifically. It has nothing to do with the exemption that is provided in totally different provisions. CIT- A while deciding the issue in para number 5.4.3 has relied upon the decision of the coordinate bench and granted relief to the assessee. - Decided against revenue. - ITA No. 4432/Del/2014 (Assessment Year: 2008-09) - - - Dated:- 5-9-2019 - SHRI SUDHANSHU SR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of building/factory shed. Thereafter the case was assessed u/s 143 (3) on 23/10/2009 on income of INR 5 3393280/ . 4. Subsequently the case of the assessee was reopened by issuing notice u/s 148 of the act on 29/12/2011 after recording the reasons. The assessee submitted that the original return filed u/s 139 (1) may be treated as return filed in response to notice u/s 148 of the income tax act. Subsequently a show cause notice was issued as to why the addition on account of shortterm capital gain arising on sale of land and building of INR 541,500,000 should not be taxed against the long-term capital gain shown by the assessee company. 5. The assessee objected to the same and stated that it is not correct to include land and building in the same block of assets and consider the transfer as short-term capital gain. Assessee also submitted that it has never claimed appreciation on the land however; the answer of the assessee on the issue of depreciation of building was silent. 6. Learned assessing officer noted that assessee company had sold its land and building shed to M/s Bhushan steels Ltd as per sale deed dated 12/03/2008 for IN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of building and factory shed as short-term capital gain as the assessee company has been claiming depreciation regularly in the books of accounts and the net value of building was shown at rupees 6698248/ on 31/3/2008. He held that factory building is a depreciable asset on which the appellant has been claiming depreciation. This issue has not been agitated by the assessee before us and therefore it is now concluded. However, the revenue has raised this ground as per ground number 2 of appeal. 8. On the issue of inclusion of stamp duty of INR 1 0105000/ in the amount of sale consideration he held that appellant has paid the stamp duty as per the sale agreement and therefore according to the provisions of section 48 the expenditure incurred wholly and exclusively in connection with the transfer of the capital asset the assessee deserves the deduction of the above amount. Therefore, he allowed the claim of the assessee. On this issue, also revenue is not in appeal before us. 9. On the issue of the action of the learned assessing officer in taking the cost of the land as per the audited balance sheet for the purpose of arriving at the indexed cost o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1 of the appeal of the assessing officer 14. The ld AR , With respect to ground number 2 of the appeal of the assessee he submitted that as per para number 5.4.2 of the order of the learned CIT A the above addition has been confirmed and therefore there is no grievance of the revenue. He further submitted that issue is not squarely covered by the decision of the honourable Supreme Court in case of CIT vs. V.S Dempo Co Ltd 74 taxmann.com 15 (SC). 15. We have carefully considered the rival contention and perused the orders of the lower authorities. Brief facts of the case are that the business of the appellant Company was to manufacture of steel and P.V.C. pipes at its works at Ghaziabad (UP). The appellant company filed its return of income for the assessment year 2008-2009 declaring the total income at ₹ 12,09,46,810. The appellant company sold part of the immovable property consisting of land and building on 12th March, 2008 for ₹ 18,37,00,000 and ₹ 9,09,45,000, respectively. The appellant in its return of income had shown ₹ 11,77,91,426 as Long Term Capital Gain from sale of land and 'Nil as Short Term Capital Gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of appeal the learned AO has raised an issue that taking the valuation of land as per approved valuer s report means that the land purchased in 1993 has not been distinguished for the taxation purposes separately. However, no evidence has been produced before us that the impugned land sold by the assessee is acquired post 1 /4/1981. In view of this ground number 1 of the appeal is dismissed. 16. The second ground of appeal is against treatment given by the learned CIT A of rupees to 3377352/ by admitting the additional ground holding that same is chargeable to tax as per the provisions of section 112 of the income tax act. The above issue now is squarely covered by the decision of the honourable Supreme Court in Commissioner of income tax vs VS Dempo Co Ltd 387 ITR 354 wherein it has been held that section 50 of the income tax act is a special provision for computing the capital gain in the case of depreciable asset is only restricted for the purpose of the provisions of section 48 of section 49 of the income tax act specifically. It has nothing to do with the exemption that is provided in totally different provisions. The learned CIT A while deciding the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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