TaxTMI 
TaxTMI 
2016 (12) TMI 1351
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....The CIT (Appeals)- 33, Mumbai has erred in confirming the addition made by learned A.O. on account of Profit on Sale of office premises as Short Term Capital Gain - Rs. 9,25,880/-(Addition no.3 of the A.O.) for the A. Y. 2008-09 and the assessee prays to delete the said additions on the following grounds:- a. The CIT(A) erred in appreciating the fact that the Block of Asset under the head "Office Preemies" & under the head "Industrial Premises" are under the same block of asset claiming depreciation @10%. b. The CIT(A) erred in appreciating the fact that the opening balance of the Block of Asset claiming depreciation @ 10% under the head "office premises and Industrial Premises" collectively as on 1/4/2007 was Rs. 72,76,169.50 and after deducting Rs. 25,25,000/- on account of sale of the office premises and after additions of assets and deductions on account of depreciation there was still a balance left of Rs. 78,78,179.50 as closing W.D.V. as on 31/3/2008 and that there was no surplus so as to have "short capital gains". c. The CIT(A) erred in appreciating the fact that there are two types of premises under the collective block under the head "office premises and Industr....
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....aring Shop No. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai which was used during the year for the purpose of business and claimed depreciation on office 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai for which the assessee produce evidence for transfer of files to office 8(A) Plot No. 260, Sector 10, Kharghar, Navi Mumbai supported by an affidavit of Sh. Vinod Shankar More, Peon stating that the files have been transferred by him to the office 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai and hence it was claimed that the said office 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai was part of block of asset for the year under consideration. It was submitted that there was a dispute with the developer and the assessee, however, the assessee has taken forceful possession of the said shop in the year 2007-08 and the ownership was claimed in the books of account, while no formal conveyance or agreement was executed between the assessee and the developer. It was submitted that in financial year 2007-08, the building was under construction and there was no light or electricity in the building. The said premise was situated in the ground floor and forceful posse....
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....ises (2007-08) 10% 6184 6210850 1231250 0 683266 6765018 It was observed by the A.O. that the assessee's intention to transfer the value of Rs. 59,30,490/- during financial year 2006-07 was purposely made to 'office premises' to evade tax on profits on sale of shop No. 605, 6th floor, Maithili's Signet, Plot No. 39/4, Sector-30A, Vashi, Navi Mumbai in subsequent assessment year. It was also observed that to keep the block of assets of office premises alive, the assessee has made additions to office premises of Rs. 15 lacs showing purchase of office No. 8(A), Plot No. 260, Sector 10, Kharghar,Navi Mumbai and the details of payments are as under:- 17-12-2007 Rs. 10,00,000/- 04.02.2008 Rs. 5,00,000/- It was observed that the assessee had tried to show the transaction as business in order to claim depreciation in respect of office No. 8A, Plot No. 260, Sector 10 , Kharghar ,Navi Mumbai by producing the evidence of transfer of files to Office NO. 8A, Plot No. 260, Sector 10, Kharghar,Navi Mumbai and to this effect affidavit of Mr. Vinod Shankar More,Peon was also furnished stating that the files have been transferred by him to K....
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....ice Premises' as under:- Description of assets Rate of depreciation WDV as on 1.4.2007 Additions Apr-Sep Additions Oct-Mar Sales Depreciation allowable WDV as on 31.3.08 A B C D E F G H Office premises (2006-07) 10 129839 0 7529610 0 389464 7269985 Office premises (2007-08) 10% 7269986 115400 - 84,55,490 - (1070104) Thus, it was held by the AO that there is no block of assets 'office premises' existed as on the date of sale of office No. 605, 6th Floor, Maithili's Signet, Plot No.39/4, Sector-30A, Vashi, Navi Mumbai and as such the assessee is liable to pay short term capital tax on the said transaction and the A.O. worked out the same as under , vide assessment order dated 28-12-2010 passed u/s 143(3) of the Act:- Sale consideration (19-12-2007) Rs. 25,25,000/- Less: Purchased value (21-10-2007) Rs. 15,99,120/- Short term capital gains Rs. 9,25,880/- 4. Aggrieved by the assessment order dated 28-12-2010 passed by the A.O. u/s. 143(3) of the Act , the assessee filed first appeal before the ld. CIT (A). 5. Before the ld. CIT(A) , the asse....
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....i-Tech Infra Projects (India) Pvt. Ltd. for a consideration of Rs. 25,25,000/- on 19th December, 2007. The said office premises were purchased by the assessee on 21st February, 2007 for a total consideration of Rs. 15,99,120/- , and the gain arising from the sale of the said office was brought to tax as short term capital gain by the Revenue . The ld. Counsel submitted that the said asset being office premises was used for business purposes on which depreciation of 10% is available being a building not used for residential purposes and since the block of asset is continuing even after the sale of the said office and the block of asset is not empty, hence, no income can be brought to tax on the depreciable asset as it forms part of the block of asset of buildings which are not used for the purposes of residential . It was submitted that in the preceding year , the said asset was acquired which was put to use and the Tribunal in ITA No. 4662/Mum/2010 for the assessment year 2007-08 vide orders dated 24.02.2012 , whereby the Tribunal upheld the disallowance made by the ld. CIT(A) of Rs. 84,000/-. Thus, it was submitted that the Tribunal allowed the depreciation on the said asset being....
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....e brought to tax as per scheme of the Act as contained in provisions of Section 50 of the Act because there will still be positive figure in the block of assets. It was submitted that the findings of authorities with respect to holding that repair is included in block of asset is perverse, as the same is stamp duty paid on transfer of asset. 8. The ld. D.R. submitted that the assessee has purchased new asset being office premises i.e. shop No. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai for which payment of Rs. 15 lacs was made and the commencement certificate was received on 19th March, 2008 only and thus there was no question of forceful possession of said premises on 6th February, 2008 of the said premises because the building got commencement certificate for construction only on 19th March, 2008. The assessee has sold office premises No. 605, 6th floor, Maithili's Signet, Vashi Navi Mumbai to M/s Hi- Tech Infra Projects on 19th December, 2007. The short term capital gain was rightly brought to tax by the authorities below and he relied on the orders of the authorities below. 9. The learned counsel for the assessee submitted in the rejoinder that even if the said ....
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.... Delhi High Court in the case of Ansal Properties and Infrastructure Limited(supra). Thirdly, with respect to the contention of the assessee that assessee has paid Rs. 15 lacs for the purchase of office shop No. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai, whereby the possession was forcefully taken by the assessee on 06-02-2008 against which building commencement certificate to start construction was received by the Builder Hi-tech Infra Projects (India) Private Limited on 19th March, 2008 and no conveyance deed was executed by the builder in favour of the assessee, rather the assessee has treated the said office premises i.e. shop No. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai as part of the block of asset being the building which is not used for residential purposes on which depreciation @ 10% was provided under the scheme of the Act against which the depreciation was claimed by the assessee as it was claimed that the said asset was put to use by the assessee, we reject the afore-stated contention of the assessee as the said asset i.e. office premises i.e. shop No. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai has not been proved by the assessee to be c....