TaxTMI 
TaxTMI 
2011 (4) TMI 146
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.... outgoing of Rs. 64,750 out of interest income. On the ground that confirmation was not filed before date of assessment. The A.O disallowed the claim. The Ld. CIT(A) confirmed the addition. 3. The Department has taken following grounds of appeal :- (i) The Ld. CIT(A) erred in not appreciating the facts and circumstances of the case because, the case law cited in the appellate order does not relate to the section 54EC, whereas the claim of the assessee was made under section 54EC. Moreover, it cannot be denied that the Plant & Machinery are depreciable assets although the same were taken over by the assessee from partnership firm. The Ld. CIT(A) remained silent on this point. 4. First, we shall take up appeal filed by assessee in ITA No. 609/Kol./2010. 5. In respect of ground No. 1 of appeal, the relevant facts are that assessee sold land and claimed capital gains. The assessee stated that there were trees which were self grown on the said land and these were also sold alongwith land computed its value at Rs. 2,00,000. The assessee stated that there was no cost of acquisition and as such, sold value of trees is capital gain to assessee. The assessee stated that the....
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....e alongwith land and claimed capital gain. He submitted that income arisen on sale of trees has right been held as "income from other sources" by Ld. CIT(A). He further submitted that the cases relied upon by Ld. Authorised Representative for the assessee are not applicable to the case of assessee as the case of Hon'ble Punjab & Haryana High Court (supra) states that if an asset on which no depreciation is claimed and there is no cost of acquisition of asset, capital gain should not be computed. He further submitted that the case of Hon'ble Apex Court in the case of Srinivasa Setty (supra) has no relevance to the case of assessee. 9. We have carefully considered the orders of the authorities below. We have also gone through the cases cited by Ld. Authorised Representative for the assessee (supra). We agree with Ld. Departmental Representative that the sale proceeds on sale of trees, which were self grown on the land of assessee, is not capital asset. We are of the considered view that Ld. CIT(A) has rightly held that sale proceeds on sale of trees is to be assessed under the head "income from other sources" and Assessing Officer was not justified to hold that it is to be held unde....
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....hat assessee had shown receipt of advances from B. Roy i.e. Smt. Bharti Roy of Rs. 8,00,000 and Late S. Roy of Rs. 9,90,000. We observe that assessee filed confirmation from Smt. Bharti Roy and Smt. Sutapa Sharma daughter of Late S. Roy confirming receipt of interest of Rs. 40,000 & Rs. 24,750 from assessee in respect of advances given by them to assessee. We observe that Ld. CIT(A) did not consider the said confirmations on the ground that assessee failed to produce the same before Assessing Officer. Considering the facts of the case and in the interest of justice, we consider it prudent and as prayed by Ld. Authorised Representative for the assessee to restore this issue to the file of Assessing Officer with a direction that he will decide it afresh after giving due opportunity of hearing to assessee and also considering such evidences as may be placed before him. Hence ground No. 2 of the assessee is allowed for statistical purposes. 15. Now, coming to appeal filed by Department being ITA No. 629/Kol./2010, we observe that assessee sold land, plant and machinery, building and staff quarters and other plant and equipments, the details of which are given at pages 2 & 3 of the ord....
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....gain arisen from sale of plant and machinery, building & staff quarters and other plant and machinery as the cases stated by assessee did not relate to section 54EC of the Act and also section 54EC was introduced with effect from assessment year 2004-05 and the judgments relied upon by assessee are in respect of period prior to introduction of section 54EC. It is relevant to state that cases relied upon by assessee before Assessing Officer are mentioned at page 6 of assessment order wherein the issue decide was that under section 50 was not applicable as depreciation had not been claimed on those assets. We observe that Ld. CIT(A) has reversed the finding of Assessing Officer by accepting the contention of assessee that section 50 has no application, if no depreciation has been allowed under the Act in respect assets sold by assessee and placed reliance on the decision of Hon'ble Madras High Court in the case of Kali Aerated Water Works v. CIT [2000] 242 ITR 79 (Mad.) 19. We observe that authorities below have not considered the issue in right perspective and as per provisions of the Act as applicable to assessment year under consideration. 20. It is a fact that provisions of sec....