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TMI Blog2022 (11) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act that the capital asset has to be part of block of assets in respect of which depreciation has been allowed. Before us, the parties have agreed that the matter may go back to the file of the ld. A.O for verification whether at all depreciation has been allowed in respect of the property in question and then the matter may be decided in accordance with the provision of section 50 - In the interest of justice, we set aside the order of the ld. CIT(A) and remand the matter to the file of the ld. A.O to verify as per above terms whether the assessee has been allowed depreciation and then re-adjudicate the issue as per law in terms of section 50 of the Act. Grounds of appeal are allowed for statistical purposes. - ITA No. 397/PUN/2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT(A) in the case of Shakti Metal Depot 189 Taxman 329 is not at all applicable to the facts of the appellant. The appellant craves leave to add, alter, amend or delete any of the above grounds. 2. That as per the grounds of appeal, grievance of the assessee is the addition made by the ld. A.O under the head capital gain arising out of sale of property under the head short term capital gain u/s 50 of the Income-tax Act, 1961 (hereinafter referred to as the Act ). It is the contention of the assessee that the addition has been made u/s 50 of the Act disregarding the contention of the assessee that the property in question was never included in the block of assets and neither the assessee had claimed depreciation and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming part of block of asset within the meaning of sec. 2(11) of the Act cannot seize to be the part of block of assets. The description of the assets by the assessee in the balance sheet as in investment asset according to the ld. A.O was meaningless and was only to avoid payment of tax on short term capital gain on sale of building. The ld. AO held that so long as the assessee continued business, the offices forming part of the block of assets would retain its character as such, no matter one or two of the assets in one or two years were not used for business purposes and disentitled the assessee to depreciation for those years. The ld. AO therefore, concluded that on the sale of these assets on which depreciation has been claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Pamnani Vs. CIT (2017) 86 taxmann.com 175 (Bom) and held that once it is proved that the properties in question were business assets then it must form part of block of assets eligible for depreciation and the ld. A.O was correct in assessing the same as short term capital gain u/s 50 of the Act. 5. At the time of hearing, the ld. Counsel for the assessee submitted that as per basic requirement for invoking section 50 of the Act the property must form in the block of assets and the depreciation should be allowed but in the case of the assessee, the property in question was never included in the block of assets and that depreciation has not been allowed. The ld. Counsel further submitted that the matter may be remanded back to the file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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