TaxTMI 
TaxTMI 
2025 (7) TMI 592
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....ed a premise on lease and claimed depreciation on the cost of improvements made by it for utilization of the impugned property. 3. Per contra the ld DR placed reliance upon the order of ld AO. 4. The ld counsel for the Assessee submitted that the ld CIT(A) has given it relief by relying upon the order of this Tribunal in its own case vide ITA No. 6431/Del/2014 of Skylark Hospitality India (P) Ltd Vs. DY CIT. it was argued that consequently there is no error in the order ld first appellate authority. 5. We have heard rival submissions in the light of the materials available on the record. We have noted that a coordinate bench of this Tribunal in Assessee's own case vide ITA No. 6431/Del/2014 (supra) have decided that the Assessee is entitled for claim of depreciation qua lease hold premises. It was held that the test of ownership would be satisfied in such cases. The relevant part comprising para 4 of the order is reproduced as under:- "16. We have carefully considered the rival contention and perused the orders of the lower authorities. In fact after the order u/s 154 of the act passed by the Ld. assessing officer the exact amount of depreciation disallowed by the....
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....business satisfying the user test, the depreciation thereon cannot be disallowed. In view of the above facts we direct the Ld. assessing officer to delete disallowance of depreciation on various expenditure incurred for of the business which are capital expenditure in nature and qualifies as building and furniture and fixture amounting to Rs. 2625414/-. Accordingly, we reverse the finding of the Ld. CIT (A) and allow ground No. 2 of the appeal of the assessee." 6. We have also noted that the facts of the present case are identical to those adjudicated by the Hon'ble coordinate bench in ITA No. 6431/Del/2014 (supra). The ld DR could not establish any distinguishment of facts of the present case. Accordingly, in respectful compliance to the said decision as well as for the principles of consistency we hold that the Assessee is entitled for its claim of depreciation on improvements on lease hold premises. Accordingly, we confirm the order of the ld CIT(A) and direct the ld AO to delete the impugned addition. Grounds of appeal Nos. 1 and 2 raised by the revenue are dismissed. 7. The next issue raised by the revenue vide grounds of appeal Nos. 3, 4 and 5 are regarding the deletion....
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....tment of all deduction etc provided for in the agreement dated 30.07.2011 (supra), the Assessee had received Rs. 12 crores and which was offered for taxation. 9. We have heard rival submissions in the light of the materials available on the record. We have noted that the conditions prescribed in the shares sale agreement dated 30.07.2011 are seminal to the controversy and hence, we deem it appropriate to reproduce relevant conditions herein below:- Clause B, C and D of the agreement ".............(B) The issued and paid up share capital of the Company presently comprises 40,00,000 (Four Million Only) fully paid up equity shares (the "Equity Shares") having a face value of Rs. 10/- (Rupees Ten only) each, aggregating to a total of Rs. 4,00,00,000/- (Rupees Forty Million Only) as set out in Appendix A. (C) The Seller holds 24,00,000 (Two Million Four Lakhs) Equity Shares of the Company representing 60% of entire equity shareholding of the Company, the details whereof are more particularly described in Appendix-A hereto: (D) The Purchaser is desirous of purchasing the entire shareholding in the Company held by the Seller. The Seller has agreed to....
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....ime after the invocation and realization of bank guarantee, in such an event Purchaser shall remit the same to the Seller........" "SCHEDULE 2 of the agreement or ALLOCATION OF PURCHASE CONSIDERATION Total Consideration Rs. 160.000,000/- INR 160 Million) Less: 60% of the Net Current Liabilities (As per Audited Accounts of the Statutory Auditors as on 31.7.2011 to be crystallised) Less: Retention Money 30% of purchase consideration, in case pledged shares are not endorsed in favour of Purchaser on the SPA Completion Date, till the time same is not endorsed in favour of the Purchaser. * Net Current Liabilities shall mean all current liabilites and provisions less all current assets. 10. A perusal of the above extracts of the agreement dated 30.07.2011 shows that the sale consideration agreed for sale of 24 lacs shares of M/s DSSH was agreed at Rs. 16 crores. The same has been clearly written in item 'D' extracted hereinabove. The same amount has further been reproduced and reiterated in Schedule 2 of the agreement again extracted herein above. Thus, it is clear that the agreed sales consideration was Rs. 16 crores. The Assess....
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....tional upon non payment of amounts from UBS/ USL. There could have been a situation that amounts were received by the buyer from UBS/ USL and hence necessity for bank guarantee did not arise. 12. The ld counsel for the Assessee has placed heavy reliance upon case laws concerning taxation of income on accrual or receipt basis. We do not find sufficient force in the argument as the judicial precedents relied upon by the Assessee have been found to be un-contextual. In the present case the amounts have not been added by the revenue on account of any hypothetical supposition or any deeming provisions but purely on account of a contractual agreement where the Assessee is a seller. Thus, the controversy of any accrual of income etc. is not seminal to the present facts of the case. The Assessee has also argued that the amount of Rs. 12 crores was paid after arriving at all the deductions etc. agreed between the contracting parties and which were clearly stipulated in the agreement. It was vehemently stated that the amount of Rs. 12 crores was arrived at after such deductions and hence, cannot be doubted. We are again constrained to subscribe to the argument of the appellant Assessee si....