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TMI Blog2015 (3) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on facts in upholding the estimated addition of Rs. 25,29,412 on account of Short-Term capital gain u/s 50 on sale of factory building and structure constructed on the lease hold land made by the Assessing Officer on the basis of payment of additional stamp duty of Rs. 1,50,500 without properly appreciating the facts of the appellant. 2. He has erred in law and on facts in upholding the addition of short term capital gain without appreciating the facts that the provisions of section 50C were not applicable to the facts of the appellant who has sold depreciable asset constructed on lease hold land. 3. On the facts and in law no additional addition of Rs. 25,29,412 toward short term capital gain on the basis of payment of additional stam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound in this appeal is against the confirmation of the estimated addition of Rs. 25,29,412/- on account of short-term capital gain by invoking the provisions of section 50C of the Income Tax Act. The ld.counsel for the assessee submitted that the AO was not justified in adopting the value of the property as per the Sub-Registrar, SRO-Ahmedabad-5. He submitted that even the ld.CIT(A) has failed to take note of the fact that the building being a depreciable asset and WDV of the same was reflected in the balance-sheet of the earlier years as well as in the year in question. Therefore, the capital gain will be calculated as per the provisions of section 50 and not as per provisions of Section 48 and 49 of the Income-tax Act, 1961. Section 50C a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is sale of building on which depreciation was claimed, section 50 is applicable and computation is to be made under section 48 subject to modification mentioned in section 50. However for sale of building, the sale consideration for the purpose of section 48 is to be replaced by value adopted by stamp valuation authority under section 50C. Therefore it can be concluded that section 50 is not in exclusion of all other sections. Except section 2(42A), all other sections are applicable to section 50. This section was excluded because it defines short-term capital asset which is held for less than three years. However block of asset can be more than three years and therefore to treat the same as short-term capital gain, this exception was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 48 & 49 shall be subjected to certain modification. This aspect has not been considered by the ld.CIT(A) while deciding the issue. Therefore, this issue is restored to the file of ld.CIT(A) for decision afresh in accordance with provisions of law. Thus, this ground is allowed for statistical purposes. 7. Regarding the additional ground raised by the assessee, the ld.counsel for the assessee submitted that this being a legal ground and can be raised at the appellate stage. He submitted that the assessee cannot be denied legal claim merely because he did not raise the issue before the AO or the first appellate authority. 7.1. On the contrary, ld.Sr.DR opposed the contention of the ld.counsel for the assessee. 8. We have heard the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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