2023 (11) TMI 785 - AT - Income Tax

Carry forward of unabsorbed depreciation or business loss - belated filing of Return - DR said return filed by the assessee was belated one and it is not specifically forth coming whether the loss claimed by the assessee is unabsorbed depreciation or the business loss - HELD THAT - It is found from the record that the assessee suppose to file its return of income u/s 139(1) of the Act on or before 30 th September, 2010 but the assessee had filed return of income on 28/01/2013, further it is also observed that though the assessee AR contended that assessee has not claimed business loss and the claim of assessee was unabsorbed depreciation, but it is found that as per the assessment order, the assessee had claimed loss and it is not coming forth clearly as to the loss claimed by the Assessee was either business loss or unabsorbed depreciation. Therefore, in our opinion, the issue involved in Ground No. 1 requires to be adjudicated afresh by the A.O. Accordingly, the issue involved in the Ground No. 1 of the Assessee s appeal remanded to the file of the A.O. for de-novo adjudication with a direction to the assessee to substantiate its claim of unabsorbed depreciation. Accordingly, the Ground No. 1 of the assessee is partly allowed for statistical purpose. Depreciation on land computed by estimating the cost of land out of the total consolidated cost of hotel building complex - assessee vehemently submitted that the entire hotel building complex was purchased at consolidated value vide a registered deed without any mention of separate cost of hotel land, therefore, the reduction of depreciation made by the A.O. is bad in law - HELD THAT - Merely because the parties have not specified the separate value of the land and building in the conveyance deed for the reasons based known to them, the same would not enable an Assessee to claim the depreciation on the land on which the assessee is not eligible to claim the depreciation. If the assessee is allowed to claim the depreciation on the land in the manner contended by the assessee herein, which would promote the mischief of not specifying the value separately which is basis on which valuation is normally done and which could possibly lead to creation of loophole by deliberately not mentioning value of the land and building and by way of paying composite value to the land and building only to claim depreciation contrary to the law. Therefore, in our considered opinion, the assessee is not eligible for depreciation on land cost as per Section 32 of the Act. Since, the assessee himself has bifurcated the value of the land and the building during the registration of conveyance deed and the stamp duty has been collected by State Government based on the circle rate on the value of the land and the building which are identifiable separately, the judicial pronouncements relied by the assessee are not applicable to the present case, Thus, we dismiss the Ground No. 2 of the assessee.

Summary

Issues Involved:
1. Rejection of the claim of carry forward of unabsorbed depreciation.
2. Disallowance of depreciation on land.
3. Non-consideration of a specific ground of appeal.

Summary:

Issue 1: Rejection of the Claim of Carry Forward of Unabsorbed Depreciation
The Assessee contended that the claim of carry forward of unabsorbed depreciation should be covered under Section 32(2) and not Section 139(3) of the Income Tax Act. The Tribunal found that the Assessee did not clearly specify whether the claimed loss was business loss or unabsorbed depreciation. Consequently, the Tribunal remanded the issue back to the Assessing Officer (A.O.) for fresh adjudication, directing the Assessee to substantiate its claim of unabsorbed depreciation. This decision applied to both Assessment Years 2010-11 and 2011-12.

Issue 2: Disallowance of Depreciation on Land
The Assessee argued that the entire hotel building complex was purchased at a consolidated value without a separate cost for the land, hence depreciation should not be reduced. The Tribunal upheld the A.O.'s decision, stating that land does not qualify for depreciation as per Section 32 of the Act. The Tribunal noted that the Assessee had, during the registration of the conveyance deed, bifurcated the value of land and building and paid stamp duty accordingly. Thus, the disallowance of depreciation on land was justified. This ruling was consistent for both Assessment Years 2010-11 and 2011-12.

Issue 3: Non-consideration of a Specific Ground of Appeal
The Tribunal noted that the Assessee did not press this ground during the appeal. Consequently, this ground was dismissed as not pressed for both Assessment Years 2010-11 and 2011-12.

Conclusion:
The appeals for both Assessment Years 2010-11 and 2011-12 were partly allowed for statistical purposes, with the issue of carry forward of unabsorbed depreciation remanded for fresh adjudication and the disallowance of depreciation on land upheld.