2019 (3) TMI 1555 - HC - Income Tax

Capital gain on Property sold u/s 50 - existence of building on land - Statement in survey indicate superstructure - 20 years old assessment records neither available with department nor with assessee - HELD THAT - The Tribunal by the impugned judgment held that there was no super structure on the land, which could be subjected to depreciation. The Tribunal noted that the property remained as land and minimum structure of as shed and compound wall was constructed when the property was given on rent to L & T for parking their vehicles. Perusal of the documents on record and in particular the impugned judgment of the Tribunal would show that the entire issue is factual. The Tribunal having considered the relevant materials on record has come to conclusion which has not shown to be perverse. No question of law arises - Decided against revenue

Summary

Issues:
1. Whether the property sold consisted of a building and land appurtenant to the building needed to be taxed as a single property?
2. Whether the Income Tax Appellate Tribunal (ITAT) was justified in holding that there did not exist any building on the sold property?

Analysis:

1. The appellant, the Revenue, filed an appeal against the judgment of the Income Tax Appellate Tribunal raising questions regarding the taxation of a property sold by the assessee during the assessment year 2010-11. The Revenue contended that a factory building situated on the land should be considered for depreciation in calculating capital gains. However, the Tribunal held that there was no super structure on the land that could be subjected to depreciation. The Tribunal observed that the property remained as land with a minimum structure of a shed and compound wall. It further noted that the assessee had let out the land for parking vehicles and received rent for the same. The Tribunal found that the assessee did not carry out any manufacturing activity on the property in question. The absence of assessment records prior to a certain period was also considered, leading the Tribunal to conclude that the tax authorities were not justified in taking an adverse view. The Tribunal dismissed the Revenue's contentions, emphasizing that the property was essentially land with minimal structures, and no depreciation could be claimed.

2. The Tribunal's decision was based on a factual analysis of the evidence presented. It noted that the property in question had not been used for factory purposes and that the assessee had not produced assessment records dating back several years. The Tribunal found that the Revenue's argument regarding the existence of a factory building on the property was not substantiated by the facts on record. The Tribunal held that the Revenue's contentions were based on surmises and conjectures, and there was no justification for allowing depreciation on the property in question. The Tribunal concluded that the Revenue's appeal lacked merit as the issue was essentially factual, and no question of law arose. Therefore, the Income Tax Appeal was dismissed by the Tribunal, upholding its earlier decision.

In summary, the High Court of Bombay upheld the Tribunal's decision, emphasizing that the property sold by the assessee was primarily land with minimal structures, and the Revenue's contentions regarding the existence of a factory building for depreciation purposes were not supported by the evidence on record. The Tribunal's factual analysis and conclusion were found to be reasonable, leading to the dismissal of the Revenue's appeal.