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TMI Blog2012 (4) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition of ₹ 40,00,000/- made by Assessing Officer as income from other sources. 2. The appellant craves to amend, modify, alter, add or forego any ground of appeal at any time before or during the hearing of this appeal." 2. During the year under consideration the assessee sold land measuring 16 Kanal 1 Marla land at Bhondsi village, Haryana to Smt. Usha Rao and Smt. Sushma Rao for ₹ 15,00,000/-. Besides the said amount, another receipt of ₹ 40,00,000/- was shown on account of sale of building constructed on the said land. The Assessing Officer referring to section 3 of The Transfer of Property Act, 1882 which suggests that immovable property shall include land, benefits arising out of land and things attached to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects, the learned CIT(A) has concluded that against the sale of aforementioned property the entire consideration received by the assessee is ₹ 65 lakhs, therefore, there was nothing on record to support the separate addition of ₹ 40 lakhs. He directed the Assessing Officer to take the sale consideration as per the value determined by DVO and deleted the addition of ₹ 40 lakhs and directed the Assessing Officer to allow the set off of brought forward long term loss of ₹ 7,38,093/- (subject to verification), from the Long Term Capital Gain assessable in the hands of the assessee. 5. The Department is aggrieved with these findings of the learned CIT(A). 6. The learned D.R. after narrating the facts vehemently pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RACT OF FAIR MARKET VALUE S. No. Particulars Amount (Rs.) 1. Cost of land 15,00,000/- 2. Cost of construction 41,74,600/- GRAND TOTAL (1+2) 56,74,600/- 10 From the above calculation it is seen that cost of land has been taken at Rs..15 lakhs which is which is not objected to by the DVO and cost of construction has been taken at ₹ 41,74,600/-. For holding the sale consideration of land at ₹ 15 lakhs the observations of DVO are as under: Property:16 Kanal 1 Marla land in Mauza Bhonsdi, Tehsil Sohna, Distt Gurgaon Assessee: M/s Sahiwal Investment & Trading Co. The above mentioned property is in the shape of Farmland with high stone-boundary walls and gate Area of plot (A) = 16 kanal 1 marla Construction on plo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at ₹ 40 lakhs. Both these figures are very near to the estimates made by approved valuer as well as by DVO. The matter of fact remains that both the valuers have accepted the value of land at ₹ 15 lakhs and this value is also supported by the sale deed, copy of which has been submitted by the assessee at pages 5 to 7 of the paper book. The copy of receipt of ₹ 40 lakhs is also submitted at page 8. The land and building both are separate assets as on the value of land no depreciation is admissible and as against that building is a depreciable asset. It was admitted by learned AR that depreciation has been claimed on the value of building. According to provisions of section 50 of the I.T. Act notwithstanding anything contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is also necessary for the reason that learned CIT(A) has combined all these issues and has directed the Assessing Officer to allow set off of brought forward long term loss of ₹ 7,98,083/- which can be adjusted only against Long Term Capital Gain computed in respect of sale of land which is non depreciable asset. The same cannot be adopted against the sale consideration of building which has necessarily to be assessed as Short Term Capital Gain in view of section 50 of the I.T. Act, 1961. Therefore, the entire issue is restored back to the file of the Assessing Officer to correctly compute the gains arising to the assessee out of aforementioned sale of assets which comprised of land and building. 12. In the result, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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