TaxTMI 
TaxTMI 
2023 (11) TMI 785
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.... & facts of the case. 2. Whether the CIT(A) has erred in confirming the disallowance Rs. 2,16,45,449/- being the depreciation on land computed by AO by estimating the cost of land out of the total consolidated cost of "Hotel Building Complex" by segregating the total cost into the estimated cost of "Hotel Land" & "Hotel Building, while the "Hotel Building Complex was purchased at a consolidated value vide a Registered Deed without any mention of separate cost of "Hotel Land", hence the reduction of depreciation claim by Ld. AO is bad in law & facts of the case. 3. The Ld. CIT (A) has erred in not dealing with the third ground of appeal reproduced as under: "That without prejudice to above Ground of Appeal and in consideration of the following case facts- That the return of income was filed with following facts - • Business Loss :Rs.52,30,679/- The C/f of the same was not claimed u/s 139 (3) of the Act, since return was filed after prescribed due date u/s 139 (1) of the Act). • Un-absorbed Depreciation : to be carried forward (The claim of un-absorbed depreciation is Covered u/s 32 (2) of the Act and ....
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....IT (A) has erred in not dealing with the third ground of appeal reproduced as under: "That without prejudice to above Ground of Appeal and in consideration of the following case facts- That the return of income was filed with following facts - • Business Loss :Rs.3,02,39,961/- The C/f of the same was not claimed u/s 139 (3) of the Act, since return was filed after prescribed due date u/s 139 (1) of the Act). • Un-absorbed Depreciation : to be carried forward for the year plus unabsorbed depreciation b/f Rs. 15,82,50,015/- (The claim of un-absorbed depreciation is covered u/s 32 (2) of the Act and not 139 (3), hence its c/f was claimed, accordingly in the return of income. :Rs.29,92,74,700/- ii) Out of total depreciation in para (i) above, claim of depreciation dis-allowed by AO: Rs. 4,11,26,450/- iii) Remaining claim of un-absorbed deprecation to be c/f Rs. 25,81,48,250/- On above case facts, the Ld. AO grossly erred: • Firstly, erred in making the dis-allowance of the claim of carry forward of un-absorbed depreciation under in-applicable section 139 (3), while c/f of u....
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....as belated one and it is not specifically forth coming whether the loss claimed by the assessee is unabsorbed depreciation or the business loss. Therefore submitted that, the Ground No. 1 requires to be rejected. 6. We have heard both the parties and perused the material available on record. It is found from the record that the assessee suppose to file its return of income u/s 139(1) of the Act on or before 30^th September, 2010 but the assessee had filed return of income on 28/01/2013, further it is also observed that though the assessee Ld. AR contended that assessee has not claimed business loss and the claim of assessee was unabsorbed deprecation, but it is found that as per the assessment order, the 'assessee had claimed loss of Rs. 15,82,50,014/-', and it is not coming forth clearly as to the loss claimed by the Assessee was either business loss or unabsorbed depreciation. Therefore, in our opinion, the issue involved in Ground No. 1 requires to be adjudicated afresh by the A.O. Accordingly, the issue involved in the Ground No. 1 of the Assessee's appeal remanded to the file of the A.O. for de-novo adjudication with a direction to the assessee to substantiate its claim of ....
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....thority. The assessee has also included the cost of stamp duty proportionately. Since the land does not qualify for depreciation, Rs. 2,16,45,449/- is disallowed being 50% of the amount calculated @ 10% as the assessee has put to use the said hotel for business purposes for a period less than 180 days." 11. The assessee filed appeal before the CIT(A), the Ld. CIT(A) has confirmed the disallowance made by the A.O. and observed that "the land cost are not being eligible for depreciation was rightly covered out of the total consideration for the purpose of depreciation u/s 32 of the Act". During the year under consideration, the assessee purchased a built-up hotel building complex for Rs. 197,39,24,155/- and claimed depreciation of Rs. 99,86,96,208/- at 10% on the purchase of hotel building complex. During the assessment proceedings, the A.O. bifurcating the cost of hotel building complex into the land and building and disallowed depreciation of Rs. 2,16,45,499/- out of the total depreciation claimed in the 'building complex'. It is the specific case of the assessee that the building complex purchased in a composite sale agreement, wherein a particulars of payment mentioned in a st....
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....and to hold the same unto and to the use and benefit of the Vendee absolutely and forever for a lumpsum amount of Rs. 171,00,00,000/- (Rupees one hundred seventy one crores only) (hereinafter referred to as the 'Sale Consideration'). On this date hereof, the Vendee has paid the entire sale consideration thereof as follows:" 12. Further in the said conveyance deed dated 17/07/2019, it is admitted by the parties thereon that the assessee had acquired the ownership for the plots at measuring 1.9903 acres (equal to 15 caan 19 marlas) and also acquired ownership over the building constructed thereon. Though the parties for the conveyance deed have not specified the actual amount paid to the land and the building separately, the land and building are separately identifiable by going through the recitals of the sale deed. Apart from the same, the assessee himself for the purpose of registration of the conveyance deed, paid stamp duty proportionately to the building and to the land. Further, the assessee himself vide his reply dated 08/03/2013 had furnished the cost of land as Rs. 43,29,09,957/- @ Rs. 42,000/- per square yard. 13. Even the land despite forming part of composi....