2013 (2) TMI 122 - AT - Income Tax

Computation of short-term capital gains u/s. 50 - whether deposits to MIDC, BSES, BMC and Gas Authority, license fees paid , prepaid expenses and properly tax paid in advance form part of the cost of the industrial galas in the computation all aggregating to Rs. 72,60,184/- - Held that - From the material examined it is find that none of the grounds, as agitated by the assessee is/are particularly and specifically against the valuation difference of Rs. 2,27,48,713 (Rs. 11,20,81,000 Rs. 8,93,32,286). Therefore, there in no issue relating to the valuation of sale consideration of the Galas. However, the AR, maintains that the sale consideration includes the value relating to other blocks and deposits. However, assesse/AR did not file any evidence to substantiate the same. Therefore, in these circumstances, the arguments advanced by the assessee, primarily based on the valuation of the galas are non maintainable, hence not going into the valuation aspect. Nevertheless, there is not one clue, which points towards lump sum sale, as has been reiterated by the AR at every stage. Thus lump sum sale would, under all circumstance give one single comprehensive figure, not exact figure, going down to rupees and paise. Assessee has also not filed any evidence to suggest that the deposits are part of the cost of the assets in various blocks, therefore, we have to reject both the pleas of the AR. As such, neither there is any clarity as to what is the nature of the advances, as to when and in what head these advances were paid or whether these were principal amounts or were in the nature of penalties/fee/fines, nothing had been brought on record, neither before the revenue authorities - in favour of revenue. Non allowance of the write off of WDV on safes, computer programme on jewellery, CPU at office equipments connecting TV monitoring - Held that - The assessee has not at any stage, discharged its onus to prove the correctness and justification for write off. Even today assessee has simply produces some photographs, showing the interiors done somewhere, i.e. no authentication, that those photographs pertained to the demised galas. Even if those were presumed and accepted to be of demised galas, even then, those photographs does not prove anything with regard to the impugned items. In these circumstances, the views taken by the revenue authorities can be sustained - in favour of revenue. Deletion of values of office equipments and fixtures - CIT(A) allowed 50% of the WDV to be added to the cost as determined by the AO - Held that - The orders of the revenue authorities and the relevant clause in the tripartite agreement, the orders of CIT(A) had been reasonable. As seen from the photographs which are only presuming to be taken of the demised galas, it is found that the fittings and glass facade/partitions were intricately fixed and a fair presumption can be made that, if the assessee vacated the premises and new entrants took over the possessions of the galas immediately, these fittings would have gone with the possession as well. In these circumstances, the values adopted by the CIT(A) are very reasonable. Concessions given by the CIT(A) on electric fittings, gas pipe line, furniture & fixtures - relief fully in respect of the WDV claim of electric fittings and gas pipelines & 50% on the block relating to furniture and fixture - Held that - CIT(A) granted relief considering the fact that the electric fittings and gas pipelines are concealed ones and they cannot be easily separated and sold for consideration. Regarding the furniture and fixture the photographs filed before us indicate the inseparability of these items from the galas - observation of the CIT(A) is proper and it does not call for any interference.

Summary

Issues Involved:
1. Inclusion of deposits and prepaid expenses in the cost of industrial galas for short-term capital gains computation.
2. Treatment of written down value (WDV) of various assets in the computation of short-term capital gains.
3. Jurisdictional issues.
4. General grounds.

Detailed Analysis:

1. Inclusion of Deposits and Prepaid Expenses in the Cost of Industrial Galas:
The assessee argued that deposits made to MIDC, BSES, BMC, and Gas Authority, along with license fees, prepaid expenses, and property tax paid in advance, should be included in the cost of industrial galas for short-term capital gains computation. The Commissioner (Appeals) and the Assessing Officer (AO) rejected this claim, stating that these deposits and expenses were not part of the sales consideration for the industrial units. The CIT(A) found no clause in the sub-lease deeds indicating that these deposits and expenses were included in the sales consideration. The Tribunal upheld this view, noting that no evidence was provided to show that these deposits were part of the cost of the assets in various blocks, and thus, they could not be allowed as business loss either.

2. Treatment of Written Down Value (WDV) of Various Assets:
The assessee claimed that the WDV of safes, computer CPUs, and office equipment should be considered in the short-term capital gains computation. The AO and CIT(A) rejected this claim, except for allowing 50% of the WDV of furniture and fixtures and the full WDV of electric fittings and gas pipelines. The Tribunal upheld the CIT(A)'s decision, noting that the electric fittings and gas pipelines were intrinsically attached to the industrial units, while movable items like tables, chairs, and office equipment were not. The Tribunal found the CIT(A)'s approach reasonable and sustained the findings.

3. Jurisdictional Issues:
The assessee raised a jurisdictional issue in Ground No. 9, but it was not agitated during the hearing. Therefore, the Tribunal refrained from giving any findings on this ground and rejected it.

4. General Grounds:
Ground No. 10 raised by the assessee and Grounds No. 2 and 3 raised by the department were general in nature and did not require specific adjudication. These grounds were dismissed.

Conclusion:
Both the appeal filed by the assessee and the appeal filed by the department were dismissed. The Tribunal upheld the CIT(A)'s decision to exclude the deposits and prepaid expenses from the cost of the industrial galas and to allow partial relief on the WDV of certain assets. The Tribunal found the CIT(A)'s approach reasonable and sustained the findings.