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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 ..... e Hon ble High Court of Bombay in Commissioner of Income Tax versus ACE Builders (P) Ltd. [ 2005 (3) TMI 36 - BOMBAY HIGH COURT] . The said decision was noted with approval in the case of Commissioner of Income Tax, Panji versus V.S. Dempo Company Limited [ 2016 (10) TMI 62 - SUPREME COURT] - Substantial question no.(b) is also answered against the revenue. - ITAT/233/2018 IA NO: GA/2/2018(Old No.GA/2095/2018) - - - Dated:- 30-11-2021 - THE HON BLE JUSTICE T.S. SIVAGNANAM And THE HON BLE JUSTICE HIRANMAY BHATTACHARYYA Mr. Smarajit Roychowdhury, Mr. Ashok Bhowmick, Advs. For Appellant Mr. Asim Choudhuri, Advs. For Respondent ORDER The Court : This appeal by the revenue filed under Section 260A of the Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) have been answered against the appellant revenue in the respondent assessee s own case being ITAT No. 96 of 2017 dated 29th November, 2021, which reads as follows : On going through the order passed by the tribunal, we find that the tribunal was considering six issues in all. The revenue has raised three substantial questions of law before us which are covered in the six issues which were before the tribunal. The first of the issues was whether the Commissioner of Income Tax (Appeals) (in short CIT(A)) was correct in deleting the disallowance made by the assessing officer under Section 43B of the Act on account of provisions for leave encashment written back. The tribunal had re-appreciated the factual position and examined the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock written off by the assessee; whether the CIT(A) was right in deleting the disallowance of expenses for shifting of Chennai plant; and, whether CIT(A) was correct in deleting the disallowance on account of upfront fees, paid to ICICI Bank. We have perused the finding recorded by the tribunal and we find that the tribunal has elaborately discussed the facts before affirming the view taking by CIT(A). We find that no question of law much less substantial question of law arising for consideration. The last ground was with regard to whether CIT(A) was correct in holding that the sale of factory land at Guindy, Chennai gave rise to capital gain and not to business profit. On this issue, the tribunal after noting the finding rendered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Commissioner of Income Tax, Panji versus V.S. Dempo Company Limited reported in [2016]74 taxmann.com 15(SC). The operative portion of the judgment reads as follows:- 1. In the return filed by the respondent/assessee for the Assessment Year 1989-90 the assessee had disclosed that it had sold its loading platform M.V. Priyadarshni for a sum of ₹ 1,37,25,000/- on which it had earned some capital gains. On the said capital gains the assessee had also claimed that it was entitled for exemption under Section 54E of the Income Tax Act. Admittedly, the asset was purchased in the year 1972 and sold sometime in the year 1989. Thus, the asset is almost 17 years old. Going by the definition of long term capital asset contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 49 relates to cost with reference to certain mode of acquisition. This aspect is analysed in the judgment of the Bombay High Court in the case of ACE Builders (P.) Ltd. (supra) in the following manner: In our opinion, the assessee cannot be denied exemption under Section 54E, because, firstly, there is nothing in Section 50 to suggest that the fiction created in Section 50 is not only restricted to Sections 48 and 49 but also applies to other provisions. On the contrary, Section 50 makes it explicitly clear that the deemed fiction created in sub-section (1) (2) of Section 50 is restricted only to the mode of computation of capital gains contained in Section 48 and 49. Secondly, it is well established in law that a fiction create ..... X X X X Extracts X X X X X X X X Extracts X X X X
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