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TMI Blog2016 (4) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... as justified in restricting the claim to the extent of ₹ 81,32,684/-. Accordingly, we uphold the order of Ld CIT(A) on this issue. - Decided against assessee - I.T.A. No.7875/Mum/2010 - - - Dated:- 2-3-2016 - SHRI B.R.BASKARAN, AM AND AMARJIT SINGH, JM For The Appellant : Shri Nishit Gandhi For The Respondent : Mrs.Radha Narang ORDER Per B R Baskaran, AM: The appeal filed by the assessee is directed against the order dated 14.09.2010 passed by Ld CIT(A)-7, Mumbai and it relates to the assessment year 2006-07. 2. The assessee is aggrieved by the decision of the ld.CIT(A) in confirming the assessment of amount received on sale of premises as Short Term Capital Gain (STCG). 3. The facts relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kenilworth Investments Ltd as Cost of transfer on the reasoning that the loan amount is a charge on the property and accordingly computed the Short term capital gain. Against the STCG declared by the assessee, the assessee had set off of business loss of the current year and also brought forward unabsorbed depreciation. 4. It is pertinent to note that the assessee had taken certain alternative contentions before the AO, i.e., the assessee had claimed that the sale consideration of the property was not taxable, since it was not transferor of the assets, it did not derive any benefit from such sale and hence no real income had accrued to it. The assessee also put up another claim that brought forward business loss should have been allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the AO took the view that the sale proceeds to the extent of ₹ 81,34,682/- represents recovery of depreciation and accordingly held that the brought forward business loss can be allowed to be set off against STCG to the extent of ₹ 81,34,682/-. Accordingly the AO allowed set off of current year‟s business loss, brought forward depreciation and brought forward business loss to the extent of ₹ 81,34,862/-. 7. In the appellate proceedings, the ld.CIT(A) upheld the view taken by the AO and hence the assessee has filed this appeal before us. 8. The ld. AR appearing for the assessee reiterated the contentions made before the tax authorities. He submitted that the loan amount of ₹ 3.25 crores taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the assessee did not derive any benefit from the sale of the property and hence no real income has accrued to it. However, as observed by the AO, the liability of the assessee against the loan taken from M/s Kenilworth Investments Limited has stood satisfied upon the sale of premises of the assessee, meaning thereby, the assessee has actually derived benefit from the sale. Even though the assessee has not signed the transfer documents, the property should be considered to have been sold on behalf of the assessee only by virtue of the court decree. Hence these contentions of the assessee are liable to be rejected. 12. The Ld A.R, in the alternative, submitted that the sale proceeds of the asset actual represents business income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 15. The claim of the assessee is that the entire amount of STCG should be considered as business income and accordingly set off of brought forward business loss should be allowed against it. We are unable to agree with the said contentions. The claim of the assessee may be accepted, if otherwise the sale proceeds are considered as business income under the commercial principles. Following observations made by Hon‟ble Supreme Court in the case of CIT Vs. Chugandas Co. (1965)(55 ITR 17) are relevant here:- The heads described in section 6 and further elaborated for the purpose of computation of income in section 7 to 10 and 12, 12A, 12AA and 12 B are intended merely to indicate the classes of income: the heads do not exhau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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