TaxTMI 
TaxTMI 
2015 (12) TMI 1914
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.... the Registered Valuers Valuation by taking into consideration of the facts and circumstances explained by the assessee. On the facts and circumstances of the case and in law the action is not justified. (2) That the learned Assessing Officer erred in law and on facts in taking income of Rs. 24,01,479/- which represents deduction in loan of Sales Tax Department on account of pre payment scheme of Government and the learned CIT (A) erred in confirming the action of the Assessing Officer. On the facts and circumstances of the case and in law and the explanation offered the action of the authorities is not justified. (3) That the learned Assessing Officer erred in law and on facts in not considering the written off amount of Rs. 5,48,648/- for allowing the same as bad debts or trading loss and the learned CIT (A) erred in confirming the action of the Assessing Officer. On the facts and circumstances of the case and in law and the explanation offered the action of the authorities is not justified. (4) That the learned Assessing Officer erred in law and on facts in not adjusting deemed Short Term Capital Gain on depreciable assets u/s. 50 against brought forwa....
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....tion report, the Valuation Officer has stated that sale instance method adopted is based on the MIDC, Hingna approved rates. It is also necessary to note that before the Valuation Officer, the assessee wanted one particular sale instance to be adopted, which is of a sale that has taken place on 8^th June, 2005 subsequent to the date of sale in the appellant's case, which is 30^th August, 2004. The appellant has taken a contradictory stand at the time of furnishing the registered valuer's report before the A.O. It is seen that vide submissions dt. 30^th November, 2009, the appellant's representative made out a case that the registered valuer's report had to be accepted as the registered valuer has determined the FMV considering the size of the plot and its location. In para-4 of the said submission it has also been stated that no comparable sale instances were available with the registered valuer and hence the registered valuer has adopted the best possible method of valuation of the impugned property. It is, therefore, seen that the appellant is making contradictory submissions since according to the appellant the registered valuer's report is to be accepted in toto. I, therefore, ....
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....istinguished the assessee's reliance on the decision of the Tribunal in the case of Geeta Packaging holding that in that case the issue was whether the assessee is entitled to benefit u/s 43B when the sales tax liability is deferred and converted into a loan. He observed that in the present case the issue is whether when the loan liability is settled and discharged for a lesser amount, the amount of loan thus waived would be chargeable as remission of liability u/s 41(1). In this regard learned CIT(Appeals) referred to the decision of ITAT, Mumbai Bench in the case of Schenectady Specialities Asia (P) Ltd. vs. ACIT (2009) 29 SOT 1 wherein it was held as under: "According to the provisions of section 41(1) when an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee and subsequently during any previous year, the first mentioned person, i.e., the original assessee has obtained whether cash or any other manner whatsoever any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained b....
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....tarts giving corresponding benefit to the state. That opportunity is granted by deferring the remittance of the Sales Tax collected by the unit like the Assessee. In that regard, we have perused the compilation of admitted documents placed on record by Shri. Dastur. From a perusal thereof, it is apparent that the Government Resolution dated 4th May, 1983 evolves a package of incentives to disperse the industries from Bombay-Thane-Pune belt and to attract them to underdeveloped and developing areas of the State of Maharashtra. This package evolves several measures to achieve this object. Then, there is a New Package Scheme of incentives, 1988. Both Schemes have clauses and paras containing Sales Tax deferral incentives. To carry this object further and also to achieve the purpose of early remittance of deferred Sales Tax collected by the units availing of the Schemes, the statutory option was incorporated in section 38 by substituting the 4th proviso to subsection 4 of section 38 of the Bombay Sales Tax Act, 1959. That is informed by the Trade Circular dated 12th December, 2002 issued by the Commissioner of Sales Tax, Maharashtra. A combined reading of the Schemes and this Circular ....
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....ssets for brought forward business loss. On this issue learned CIT(Appeals) has noted that it is the plea of the assessee that the AO has erred in not adjusting the deemed short term capital gain on depreciable assets u/s 50 against the brought forward business loss. Learned CIT(Appeals) did find this claim of the assessee acceptable. He held that as per section 72, the appellant's claim is not admissible. That the appellant's contention that short term capital gain on sale of depreciable assets are to be treated as business loss because it is to be deemed as capital gains and, therefore, for practical purposes, business profit is not borne out by the statutory provisions. That it is an accepted position in law that a legal fiction created by the Act, cannot be extended beyond the purpose for which it is enacted. That Section 50 has created a legal fiction to bring consideration received on transfer of depreciable assets to tax as short term capital gain. That there is no scope for treating this as business profit as claimed by the appellant. 15. Against the above order, the assessee is in appeal before us. 16. In this regard learned counsel of the assessee has submitted that....