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TMI Blog2008 (4) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... nected with this ground and the issues raised in this ground were to be adjudicated in the light of the decision of the Special Bench of the Tribunal in the case of AMWAY Enterprises vs. DCIT as reported in 114 TTJ 476, hence, the matter could be restored to the file of the AO to decide the same accordingly. 6. The Ld. Departmental Representative also agreed. 7. Hence, Ground No. 1 of the assessee's as well as the Revenue's appeal stands allowed for statistical purposes. 8. In Ground No. 2 the assessee is aggrieved by the decision of the Learned CIT (A) in confirming the decision of the AO in respect of disallowance of the claim of Bad Debts to the tune of ₹ 28,13,116/- as Bad Debts. The Ld. Counsel contended that this issue was also raised in Ground No. 3 in Revenue' appeal because the Learned CIT (A) gave partial relief. 9. The facts, in brief, are that the Assessee company claimed sum of ₹ 61,71,622/- as Bad Debts. The AO asked the assessee to explain the nature of these items. Based upon the enquiries made by him, the AO held that the Assessee-Company failed to establish the fact that these debts had become bad debts and also the Books of Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after several decisions of various High Courts wherein the same view had been taken. Accordingly, he contended that the claim of the assessee was liable to be allowed in this legal background. The Ld. Counsel thereafter contended that the assessee recovered the amounts due from M/s. Gujarat Pipavav Limited. Subsequently, offered the same for taxation accordingly, hence, it was not the intention of the assessee to claim any good debt as bad debt to avoid tax. The Ld. Counsel further submitted that the total bad debt claims were less than 1% of the gross receipts of the assessee and these bad debts mainly arose out of legal disputes/commercial claims made by the assessee upon the clients which were not accepted by the clients. The Ld. Counsel further contended that the department's interests were duly protected because as and when the assessee would receive the payments, it would offere the same as income. 11. The Ld. Departmental Representative, on the other hand, contended that the assessee did not show the Books of Account to establish the fact that these amounts had been shown as income of the assessee earlier, hence, the claim of the assessee was rightly rejected by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of opinion on this aspect among various High Courts However, in such a situation, view favourable to the assessee, has to be adopted as held by the Hon'ble Supreme Court in the case of Vegetable Products as reported in 88 ITR 192. Accordingly, we accept the ground of the assessee and dismiss the ground of the Revenue. 13. Ground No. 3 of the assessee's appeal reads as under: 3 On the facts and in the circumstances of the case, the learned C (CIT (A)' has legally erred in holding that the Long term capital gin of the assessee on Sale of property amounts to ₹ 98,81,480/- in stead of ₹ 35,33,936/- as claimed by the Appellant. 14. The facts, in brief, are that the Assessee acquired property in the Financial Year 1993-94 for a total consideration of ₹ 3,91,984,301/- which was paid during the period beginning from that year till the Financial Year 200-01. The assessee also incurred certain expenses towards cost of improvement of this property and paid the property tax. The assessee, accordingly, worked out the total cost of acquisition at ₹ 4,36,009,330/-. This property was sold in the year under consideration for a sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16. We have considered he submissions made by both the sides, material on record and orders of the authorities below. We find that this issue is directly covered by the aforesaid decision of the Tribunal. Hence, the Indexed Cost of Acquisition as computed by the assessee is liable to be accepted. We would further like to add that in ITA Nos. 1883, 1884 and 1885/Mum/2007 (AY 2004-05) in the case of Smt. Lata G. Rohra and Ors. vs. DCIT, Mumbai, where one of us .e. Accountant Member, is a party, same view has been taken by following the decision of the Tribunal in the case of Charan Bir Singh Jolly (supra). In this view of the matter, we hold that the Order of the Learned CIT (A) is not correct in law and, therefore, we reverse the same and direct the AO to accept the amount of the Long Term Capital Gain, as worked out by the assessee. Thus, this ground of the assessee is accepted. 17. Ground No. 4 reads as under: 4. On the facts and in the circumstances of the case, the learned C ('CIT (A)' has legally erred in holding that the interest under section 234D would be chargeable even in cases where the refund was granted prior to June 1, 2003 and the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Accordingly, we hold that the Order of the Learned CIT (A) is correct in law. Thus, this Ground of the Revenue is dismissed. 25. Ground No. 4 of the Revenue reads as under: (iv) On the facts and in the circumstances and in law, the learned CIT(A) erred in deleting the disallowance of depreciation 13,66,148/-on residential premises used by the Managing Director held as used for the purpose of business without appreciating the facts of the case . 26. The facts, in brief, are that the Assessee company claimed depreciation of ₹ 13,66,148/- on the residential flats belonging to the company which were occupied by the Directors/Employees of the Assessee Company . The AO relying on the various judicial decisions and the provisions of Section 38 held that these residential flats could not be held as used business purposes, hence, he rejected the claim of the assessee regarding allowance of depreciation thereon. Aggrieved by this, the assessee carried the matter into appeal before the Learned CIT (A) wherein it was submitted that the judicial decisions, relied on by the AO, were related to the provisions of Section 40(c) and 40A(5) of the Act, hence, not relevant. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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