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TMI Blog2017 (12) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (in short "the Act") dated 31.12.2007 for the Assessment Year 2005-06. 2. The first issue to be decided in this appeal is as to whether the Ld. CIT(A) was justified in confirming the disallowance of depreciation in the sum of Rs. 8,20,000/- by the Ld. AO, in the facts and circumstances of the case. 3. The brief facts of this issue is that the assessee purchased a showroom comprising of land and building at No. 8, Elgin Road on outright basis for Rs. 3,28,00,000/-. The assessee claimed depreciation on the entire sum of Rs. 3,28,00,000/- at the rate applicable to building. The Ld.AO sought for bifurcation of the total consideration towards land and building separately in view of fact that the assessee is not entitled for depreciation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the AO that Column no. 14 and Annexure A are missing from the Tax Audit Report with regard to the depreciation. On demand, assessee has provided the annexure showing the details of depreciation claimed by it on two properties i.e. "Ownership flat" @5% and "ownership shop" @ 10%. Here AO observed that depreciation has been claimed on land as well which is not allowed. Assessee submitted that price paid was for specific area of built up space. Nothing was paid specifically for land and thus depreciation is allowed on entire value. However, the AO relying on the judgment of Hon'ble Supreme Court in the case of CIT Vs. AIPS Theatre 65 ITR 377 and ITAT Bench Delhi in the case of DCIT Vs Capital Car Private Limited reported 114 ITD 286 (Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee appealed to the AAC. The AAC upheld the order of the ITO. The assessee then appealed to the Tribunal which accepted the appeal. In accepting the appeal it observed as follows : "You cannot conceive of a building without the land beneath it. It is not possible to conceive of a building without a bottom. What s. 10(2)(vi) of the Act says is that depreciation will be allowed on the building. The word "building" itself connotes the land upon which something has been constructed. It was, therefore, wrong on the part of the authorities below to exclude the valve of the land upon which some construction was made. The true meaning of the word 'building' means the land upon which some construction has been made. The two must ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of Ld. CIT(A) should be allowed. Hence, this ground of Revenue's appeal is allowed for statistical purpose." Respectfully following the same, we deem it fit and appropriate to remand this issue to the file of the Ld. AO with direction to the assessee to furnish the evidence in support of bifurcation of consideration towards land and building. We agreed with the fact that the assessee is not entitled for depreciation on the land portion. Hence, bifurcation of the consideration into land and building separately becomes necessary, for which purpose we are remanding this issue to the file of Ld. AO. Accordingly, ground no. 1 raised by the assessee is allowed for statistical purposes. 5. The next issue to be decided in this appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by the assessee except making an oral statement thereon. Accordingly, he confirmed the disallowance of Rs. 76,732/- made u/s 40a(ia) of the Act. Similarly, with regard to payment of Rs. 40,000/- to the Times Internet he observed that the assessee has not established with evidences that provision of 194C of the Act are not applicable to this payment. Accordingly, he upheld the disallowance made u/s 40a(ia) of the Act. Aggrieved, the assessee is in appeal before us on the following grounds: 2.a) That on the facts and circumstances of the case, Ld. CIT(A) is wrong in confirming disallowance of Rs. 76,732/- u/s 40a(ia) without appreciating the explanation regarding non-deduction of TDS from payments to M/s Crossword Bookstore Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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