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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
आदेश / O R D E R भहावीय स िंह, उऩाध्मक्ष के द्वाया / PER MAHAVIR SINGH, VP: This appeal of assessee is arising out of the order of the Commissioner of Income Tax (Appeals)]-17, Mumbai, [in short CIT(A)], in dated 14.03.2018. The assessment was framed by the Asst. Commissioner of Income Tax, Circle 10(3)91) Mumbai (in short ACIT/ITO/ AO) for the A.Y. 2014-15 vide
At the outset, the learned Counsel for the assessee has raised the additional ground in regard to computation of capital gains under section 50 of the Act which is a legal ground and goes to the route of the matter. The relevant ground raised
read as under: -
1. The Ld. CIT(A) as well Assessing Officer failed to appreciate the computation of capital gain to be made under sec. 50 of the Act i.e. on Sale of any asset falling in the block of assets, the same has to be reduced for the WDV of the said block of Asset any not from the individual asset as done by Assessing Officer.
2. The Ld. CIT(A) as well Assessing Officer failed to appreciate that under section 50 of the Act the STCG arises only when the status of the block is negative.”
When these facts were confronted that the above ground relates to computation of capital gains under section 50C of the Act, this is purely a legal ground and goes to the route of the matter, the learned Sr. DR has not contested the admissibility of additional ground. Hence, we admit the ground and adjudicate.
3.5 Considering the above mentioned facts, as assessee has claimed depreciation till Working of STCG Sale consideration Date of Transfer (F.Y. 2013-14) 90,00,000 Financial year Written down value as on 01.04.2011 2009-10 26,06,080 Capital Gain 63,93,920 .
Aggrieved assessee preferred the appeal before Commissioner of Income Tax (Appeals).
The CIT(A) confirmed the action of the Assessing Officer by observing in Para 4.2.2 as under: - “4.2.2 Thus, it is very clear that the user test is „Block of assets”. If a particular Aggrieved, now assessee is in appeal before Tribunal.
We have heard the rival contentions and gone through the facts and circumstances of the case. We noted that the assessee has claimed depreciation on the property sold as Lunkard Sky Max of 17 units in AYs 2010-11 and 2011-12. But from AY 2012-13 i.e. Financial Year 2011-12 out of 17 units 7 units were given on rent and accordingly rental income was shown as income from house property and no depreciation was claimed on this property. As argued by the learned Counsel for the assessee that once the property let out it loses its character as a business asset and no depreciation was allowable on it. This fact has not been denied by the Revenue. We noted that this issue has been decided by Co-ordinate Bench of Mumbai in the case of M/s Prabodh Investment & Trading Company Pvt. Ltd. vs. ITO in wherein it is held as under: