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TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1351
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....nfirming 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 Industrial Premises". d. The CIT(A) erred by isolating Of....
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....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 possession was taken by the assessee from the developer to create ....
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.... 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 Kharghar office. To verify the same, A.O. issued summons to Mr. Vinod Shankar More but the concerned person did not attended before the AO and could not be produced by the assessee before the A.O. Summons were also issued by the AO to M....
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....29839 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 assessee submitted that the ITAT has decided the appeal vide order in ITA No. 3992/Mum/2010 and accepted the office premises to be a depreciable asset and upheld the relief given by the ld. CIT(A). It was submitted that the said office premises were put to use in the assessment year 2007-08 and was part of block of asset on....
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....ain 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 part of block of asset on which rate of depreciation prescribed is 10% being building not used for residential purposes. It was submitted that the assessment order for the assessment year 2008-09 was passed on 28th December, 2010 , which was prior to the afore-stated order of the Tribunal dated 24.02.2012. It was submitted....
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....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 office premises i.e. shop no. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai is excluded to be included in block of asset, still no capital gain can be 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. 10. We hav....
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....-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 constructed prior to the end of the financial year and there is no question of having any physical possession with the assessee with respect to the said office premises i.e. shop No. 8(A), Plot No. 260, Sector 10, Kharghar, Navi Mumbai which was not even built prior to end of the financial year, no depreciation can be allowed on t....