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TMI Blog2018 (12) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... remanded back to the Tribunal to consider the issue afresh. We do this despite the fact that the assessee has not filed an appeal, which was not necessary since the Tribunal had allowed the appeal on a different ground which we have answered against the assessee following the Division Bench judgment of this Court. Disallowance of employees' contribution to Provident Fund and Welfare Fund made u/s 36(1) (va) and Section 224(1) - Held that:- Question to be decided against the assessee and in favour of the Revenue in Popular Vehicles and Service (P) Ltd. v. Commissioner of Income Tax [2018 (8) TMI 133 - KERALA HIGH COURT]. Hence the aforesaid question has to be answered in favour of the Revenue and against the assessee. Whether the sale of Boyce Estate has to be treated as capital gain under Section 50B - Held that:- on a reading of the said decision, we find that therein also the consideration agreed was the aggregate value for the land, building, machinery and all equipment with liability specifically mentioned in the agreement entered into between the parties. The facts are quite distinct in this case. The liabilities were not sold and the sale agreement did not include inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the applicability of Section 14A can only be from the assessment year 2007-08 has to be noticed. We, hence, answer the question in favour of the assessee and against the Revenue, upholding the order of the Tribunal. Treating the consideration received on sale of shade trees as long term capital loss entitled to be carried forward from the earlier years - We see that the Tribunal had considered the facts and had held that the order of the CIT (Appeals) directing deletion of such deduction in the capital gains has to be set aside, on facts. The Tribunal has also held that it being long term capital loss, is entitled to be carried forward. We do not see any question of law arising from the order of the Tribunal and, hence, uphold the order to that extent. Income from the sale of old rubber trees, the decision to treat it as subjected to Central Income Tax would go contrary to the findings of a Division Bench of this Court in CIT v. Thiruvambadi Rubber Company [2011 (6) TMI 452 - KERALA HIGH COURT]. We, hence, do not think that any interference can be caused to the order of the Tribunal on that count. Issue of indexation allowed of sale proceeds of Grevellea trees - t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner under Section 263 of the Income Tax Act, 1961 ('Act' for short). ITA Nos . 101 of 2012, 213 of 2014 1752 of 2009 3. The common question arising in ITA Nos. 101/2012 and 213/2014 as also 1782 of 2009 is as to whether in the facts and circumstances of the case, the proceeds from the sale of agricultural land and rubber trees could be deemed to be agricultural income under Section 10 of the Act and the same granted exemption from computation of income as per Section 115JB of the Act. 4. Section 115JB is akin to Section 115JA of the Act; as held by the Honourable Supreme Court in 2010 (327) ITR 305(SC) [Ajanta Pharma Limited v . Commissioner of Income Tax] . It was declared that Section 115JA and the successor Section 115JB are self-contained codes the application of which is notwithstanding any provisions in the Act. 5. The question arose before this Court; when the proceeds received out of the sale of rubber trees, for reason of the trees having become old and unyielding; whether the amounts credited in the profit and loss account could be included in the computation of book profits as per Section 115JA. The contention raised before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andards. We see that the Assessing Officer had considered the aspect and ruled against the assessee. However, the Tribunal has not considered this specific issue and had merely followed the decision in Harrisons Malayalam Ltd. to grant exemption to the profit received on sale of estate from computation of the book profits. In such circumstances, we are of the opinion that the aforesaid appeals have to be remanded back to the Tribunal to consider the issue afresh. We do this despite the fact that the assessee has not filed an appeal, which was not necessary since the Tribunal had allowed the appeal on a different ground which we have answered against the assessee following the Division Bench judgment of this Court. 8. In the above circumstances, in ITA Nos. 101/2012 and 213/2014 there would be a remand for consideration of the aforesaid question, which question of exemption alone arises in the two appeals filed by the Revenue before the Tribunal. I . T . A . No . 1782 of 2009 9. I. T. A. No. 1782 of 2009, as we noticed herein above, is from the order of the Tribunal to the extent it allowed the assessee's appeal. One of the questions rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l err in allowing set off of long term capital gains on sale of land with long term capital loss on sale of shares; ( b) is not the Tribunal wrong in finding that the loss on sale of shares is not a speculation loss? 10. On the first question herein before framed, this Division Bench has answered the question against the assessee and in favour of the Revenue in Popular Vehicles and Service (P) Ltd . v . Commissioner of Income Tax [2018 (406) ITR 150 (Ker) . Hence the aforesaid question has to be answered in favour of the Revenue and against the assessee. 11. The second question arising herein before is on whether the sale of Boyce Estate has to be treated as capital gain under Section 50B of the Act. The learned Senior Standing Counsel for the Revenue admits that it cannot be treated both as being included under the Minimum Alternate Tax (MAT) and under Section 50B, but prays that the alternate contention be left open for consideration, if at all the Hon'ble Supreme Court interferes with the finding of this Court that it is possible of computation under the MAT Scheme as provided in 115JB. 12. Having gone through the order of the Tribunal, we do not th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench of this Court in Accelerated Freeze Drying Co . Ltd . v . International Creative Foods (P) Ltd . [( 2011) 337 ITR 440 (Ker)] . However, on a reading of the said decision, we find that therein also the consideration agreed was the aggregate value for the land, building, machinery and all equipment with liability specifically mentioned in the agreement entered into between the parties. The facts are quite distinct in this case. The liabilities were not sold and the sale agreement did not include investments and deposits was the clear finding of the Tribunal. All the investments, deposits, receivables, stock and such other current assets in the form of financial and other assets remained with the assessee Company along with the liabilities. Only those assets enumerated in the Schedules and Annexure were sold to the vendee. The consideration had also been specifically assigned to the sale of immovable property and separate consideration has been assigned to the sale of movable properties including vehicles, buildings and so on and so forth. We do not find any reason to interfere with the finding of fact by the Tribunal that there is no case of slump sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the CIT (Appeals) deleting the addition made by the AO invoking the provisions of Sections 37 and 14A of the IT Act, being re-plantation expenses. The AO found that the expenditure was dis-allowable under Section 14A of the Act. In this context, the decision of the Hon'ble Supreme Court in Commissioner of Income Tax v . Essar Teleholdings Ltd . [(2018) 401 ITR 445], which held that the applicability of Section 14A can only be from the assessment year 2007-08 has to be noticed. We, hence, answer the question in favour of the assessee and against the Revenue, upholding the order of the Tribunal. 18. The further question raised is on the justification in treating the consideration received on sale of shade trees as long term capital loss entitled to be carried forward from the earlier years. We see that the Tribunal had considered the facts and had held that the order of the CIT (Appeals) directing deletion of such deduction in the capital gains has to be set aside, on facts. The Tribunal has also held that it being long term capital loss, is entitled to be carried forward. We do not see any question of law arising from the order of the Tribunal and, hence, uphol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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