TMI Blog2008 (8) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... llant/petitioner Mr. Anjay Kothari, for the respondent JUDGMENT [KISHAN SWAROOP CHAUDHARI, J.] - Appellant has filed this appeal against the order of learned ITAT dated 01.06.2005, by which the appeal of respondent was allowed and appeal of appellant was dismissed. Brief facts of the case are that assessee-respondent submitted Return of Income for the Assessment Year 1997-98, and on scrutiny, Assessing Authority found that assessee sold land as per sale-deeds at a low price aggregated at Rs.18.66 per sq.ft whereas rate was atleast Rs.40 per sq.ft. and thus he added Rs.17,14,418 in assessee's income on this count. Further, he disallowed depreciation of Rs.5,86,344 on three tankers on the ground that these tankers were not gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land at a higher price than shown in sale-deeds and further submitted that without any reliable evidence on record regarding lease and use of tankers, CIT(A) as well as learned Tribunal committed error in allowing depreciation on 3 tankers, whereas learned counsel for the respondent submitted that learned ITAT has come to correct conclusion after elaborate discussion and has rightly allowed appeals of the assessee, hence appeal is liable to be dismissed. So far as question No.1 is concerned, Assessee sold his plots at an average rate of Rs.18.66 per sq.ft. The Assessing Officer mainly relied on the statement of Shri S.L. Dak and the rates taken by the Sub Registrar, and adopted value of the plots at Rs.40 per sq.ft. Learned ITAT has men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis for computation of capital gains. It was further held that capital gains tax is intended to tax the gains of the assessee, not what an assessee might have gained, and what is not gained cannot be computed as gained. He also placed reliance on two judgments of this Court. In the case reported in (2008) 3 DTR (Raj) 115 (CIT Vs. Bhanwarlal Murwatiya), it was held that the question whether any higher consideration than the one mentioned in the sale deed did pass from the assessee to the seller is a pure question of fact and the department having failed to show that any relevant material has been ignored or misread by the CIT(A) or the Tribunal while deleting the addition made by AO, such questions, in any case, are required to be answ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eers, as per bill dated 28.03.1997 and these vehicles were got registered on 29.03.1997. Insurance of these vehicles were effective from 31st March 1997. Assessee claimed depreciation on these tankers, which was disallowed by assessing authority on the ground that assessee did not file any evidence to show the use of these vehicles during the year. CIT(A), while accepting appeal of the assessee, on this count, observed that these vehicles were handed over to M/s. Shree Carriers on 30th March 1997 and diesel was purchased vide bill dated 30th March 1997. Bill was produced before the assessing authority. In such circumstances, there was no basis before the assessing authority to base his finding that the vehicles were neither given on lease n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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