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TMI Blog2012 (9) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... hembur P. Ltd.(2005 (1) TMI 13 - SUPREME COURT ) that the surrender of tenancy rights amounted to transfer and hence, being a capital receipt, on the facts thus placed before this Court that the amount paid on account of surrender of tenancy rights being given by the assessee to the builder, there is no exchange of one property for the other. Hence no hesitation in accepting the plea of the assessee to hold that the assessee is entitled to depreciation - in favour of assessee. - Tax Case (Appeal) Nos.1184, 1185 and 2694 of 2006 - - - Dated:- 3-9-2012 - MRS.JUSTICE CHITRA VENKATARAMAN, MR.JUSTICE K.RAVICHANDRABAABU, JJ. For appellant : Mr.M.P.Senthil Kumar For respondent : Mr.T.Ravikumar Standing Counsel for Income Tax J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. As far as the first question of law in respect Tax Case (Appeal) Nos.1184 and 1185 of 2006 is concerned, even though the order passed at the time of admission refers to the legality of the order passed under Section 147, by reason of notice under Section 143(2) not being issued, only two substantial questions of law i.e., Questions 2 and 3, arise in T.C.Nos.1184 and 1185 of 2006 survive. 4. As far as the second substantial question of law on the expenditure allowable under Section 37(4) is concerned, both counsel agree that the said question is covered against the assessee by reason of the decision of the Apex Court reported in [2005] 278 ITR 546 (SC) (Britannia Industries Ltd. Vs. CIT). Hence, the first question is answered agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ender of tenancy rights and the said sum was agreed to be paid to the builder towards part purchase price. The sale agreement with the construction company M/s.Harsaran Singh Constructions Pvt. Ltd., was between the assessee and the said construction company and the landlord had nothing to do with the same. Thus, the money paid by the landlord towards the surrender of tenancy rights, instead of it being given to the assessee, was directed to be paid to the Construction company towards the consideration for purchase of property by the assessee; as such, there is no exchange of property. Learned counsel pointed out that the order passed by this Court on 30.03.2012 had not taken note of any of these agreements. Hence, in the light of the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty for the other. Hence, we have no hesitation in accepting the plea of the assessee, thereby rejecting the Revenue's contention raised in all these Tax Cases. Consequently, we hold that the assessee is entitled to depreciation. 8. In the light of the above, the second substantial question of law in T.C.Nos.1184 and 1185 of 2006 relating to expenditure under Section 37(4) and renting of guest house is answered against the assessee and the third substantial question of law in T.C.Nos.1184 and 1185 of 2006 and the only substantial question of law in T.C.(A) No.2694 of 2006 on depreciation under Section 32, is answered against the Revenue. 9. Although learned counsel appearing for the assessee submitted that the name of the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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