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TMI Blog2021 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable in section 43(6) - assessee relied on the decision of Hon ble Bombay High Court in the case of Cable Corporation of India Ltd. [ 2011 (6) TMI 233 - BOMBAY HIGH COURT ] Thus we are of the view that the provision of Section 50C of the Act will not apply and the claim of the depreciation is allowable. Hence, we allow the claim of the assessee and set aside the order of the lower authorities on this issue. - Decided in favour of assessee. - ITA No. 5358/Mum/2019 - - - Dated:- 15-3-2021 - Sri Mahavir Singh, VP And Sri S Rifaur Rahman, AM For the Appellant : Shri Vipul Joshi, AR For the Respondent : Shri. V.Vidyadhar, DR ORDER PER MAHAVIR SINGH, VP: This appeal of assessee is arising out of the order of the Commissioner of Income Tax (Appeals)]-16, Mumbai, [in short CIT(A)], in ITA No. CIT(A)-16.10192/ACIT-9(3)(1)/2018-19 dated 28.06.2019. The assessment was framed by the Asst. Commissioner of Income Tax (in short ACIT/ITO/ AO), Central Circle-9(3)(1), Mumbai for the A.Y. 2016-17 vide order dated 10.12.2018 under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ). 2. The first issue in this appeal of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciable capital asset. The provision of section 5OC contains a special provision for determining full value of consideration and as per provisions of section 5OC when the consideration received or accruing as a result of the transfer by an appellant of capital asset being land or building or both, is less than the value adopted or assessed by an authority of the State Government for the payment of stamp duty in res pert of such transfer, the value so adopted or assessed shall. for the purpose of Section 48, be the full value of consideration received or accruing as a result of such transfer. 4.2.4 Further, Section 50C is a measure provided to bridge the gap as it was found that the appellant were not correctly declaring the full value of consideration or in other words resorting to the practice of under valuation. Further, the decision of jurisdictional ITAT Special Bench in the case of ITO vs. United Marines Academy (2011)138 TTJ 129(Mum) has made it clear that section SOC will be applicable on the sale value of depreciable asset. 4.2.5 Also, Under Section SOC when stamp duty valuation of a property is higher than apparent sale consideration shown in the instrument of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections are not applicable in section 43(6) of the Act. The learned Counsel for the assessee relied on the decision of Hon ble Bombay High Court in the case of Cable Corporation of India Ltd. (2011) 336 ITR 56 (Bom.), wherein, vide Paras 6, 7 and 8 the Hon ble High Court has held as under:- 6. When an asset is sold, section 43(6)(c)(i )(B) of the Act provides that the written down value of the block of assets shall be reduced by moneys payable in respect of the asset that is sold. The expression moneys payable as per Explanation 4 to section 43(6) shall have the meaning as in the Explanation below sub-section (4) of section 41. 7. As per Explanation below section 41(4) the expression moneys payable in relation to the sale of a building, machinery, plant or furniture would be the price for which it is sold and not the fair market value of the asset. Therefore, on a plain reading of the above provisions, it is clear that the written down value of all the assets falling within that block of assets at the beginning of the previous year has to be adjusted by the amount at which the asset is actually sold and not by the fair market value of the asset that is sold. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lock of assets. After such reduction, none of the blocks ceased to exist and therefore only with reference to the resultant reduced WDV, the assessee was granted depreciation u/s 32 of the Act. In particular, our attention was drawn to Page 190 of the paper book, which contained Schedule of depreciation allowance u/s 32 of the Act, certified by the tax auditor. We find that WDV of the non-residential building block at the beginning of the relevant year, was ₹ 26,35,55,506/- from which the sale consideration of ₹ 8,03,94,934/- was reduced and the resultant reduced WDV was ₹ 18,36,16,633/- against which depreciation at the rate of 10% was allowed by the AO. We therefore find that in respect of sale of factory building, no income under the head 'Capital Gain' was assessed. We also find merit in the ld. AR's submission that for computing the WDV in terms of Section 43(6)(c) of the Act, the Act did not permit the AO to reduce the stamp duty value of the property from the opening WDV. In terms of Section 43(6)(c), the AO was permitted to reduce from the WDV of the block only the monies payable. As per the explanation under sub section (4) of Section 41 the ..... 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