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TMI Blog2021 (12) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment year 2006-07. The revenue has framed the following questions of law for consideration :- "(a) Whether on the facts and in the circumstances of the case the Learned Income Tax Appellate Tribunal, "A" Bench, Kolkata erred in law in upholding the order of CIT(A) in allowing fluctuation loss of Rs. 534.58 lacs without having ascertained the purpose for loan ? (b) Whether on the facts and in the circumstances of the case the Learned Income Tax Appellate Tribunal, "A" Bench, Kolkata erred in law in not considering the deeming provisions of Section 50 of the Income Tax Act, 1961, which starts with non obstante clause "Notwithstanding anything contained in Clause (42A) of Section 2" and, therefore, definition of capital asset unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the final statements drawn by the assessee are in compliance with the statutory requirements, such as, the Companies Act and the computation of the total income has been done in accordance with the Act. Furthermore, the tribunal rightly noted that the liability was contingent in nature and has not crystallised into actual liability and will not be allowed as deduction while computing the total income. Thus the tribunal after re-examining the facts upheld the finding of the CIT(A). Thus, we find that no substantial question of law arising therefrom. The second issue was with regard to whether the CIT(A) was correct in deleting the disallowance on account of foreign exchange fluctuation. On this issue, the tribunal perused the facts, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. G. Venkataswami Naidu reported in 35 ITR 594(SC) wherein the Hon'ble Supreme Court held that the question whether gain made out of purchase and sale of the land, is an accretion or capital profit which may depend on particular facts and circumstances. After noting the said decision, the tribunal on facts, held that the view taken by the CIT(A) was fully justified. Thus, we find that there is no error in the manner in which the tribunal has approached the matter on all the aforementioned issues and we find that there is no question of law much less substantial questions of law arising for consideration in this appeal. In the result, the appeal (ITAT/96/2017) fails and stands dismissed. Consequently, the stay petition (IA No.GA/2/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E of the Act on the ground that the assessee had claimed depreciation on this asset and, therefore, provisions of Section 50 were applicable. Though this was upheld by the Commissioner of Income Tax(Appeals), the Income Tax Appellate Tribunal allowed the appeal of the assessee herein holding that the assessee shall be entitled for exemption under Section 54E of the Act. The High Court has confirmed the view of the Commissioner of Income Tax (Appeals) and dismissed the appeal of the Revenue. While doing so the High Court has relied upon its own judgment in the case of CIT v. ACE Builders (P.) Ltd. [2006] 281 ITR 210/[2005] 144 Taxman 855 (Bom.). The High Court has observed that Section 50 of the Act which is a special provision for computing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat case, the Service Rules framed by the bank provided for granting extension of service to those appointed prior to 19.07.1969. The respondent therein who had joined the bank on 1.7.1972 claimed extension of service because he was deemed to be appointed in the bank with effect from 26.10.1965 for the purpose of seniority, pay and pension on account of his past service in the army as Short Service Commissioned Officer. In that context, the Apex Court has held that the legal fiction created for the limited purpose of seniority, pay and pension cannot be extended for other purposes. Applying the ratio of the said judgment, we are of the opinion, that the fiction created under Section 50 is confined to the computation of capital gains only an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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