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TMI Blog2004 (9) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 48(1) of the IT Act, 1961, ignoring the fact that the contribution made by the assessee to the Anita Cooperative Housing society ltd was voluntary contribution towards the repairs fund of the society and the charity is not admissible under Section 48(1) of the IT Act. 2. On the facts and in the circumstances of the case and in law the CIT(A) erred allowing the above disallowance made by AO ignoring the fact that Section 49(1) deals with computation of long term capital gains by deducting from the value of consideration or acquiring by expenditure incurred wholly or exclusively or acquisition or cost of improvement of property and does not deals with charity 2. During the year under consideration, the assessee sold a house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with charity or voluntary contribution as made by the assessee towards the repair fund of the Cooperative Housing Society. The learned DR has further submitted that the case laws relied on by the CIT(A) to decide the issue in favour of the assessee, are not applicable. Rather, the following decisions, which are in favour of the department, apply to the present case : i) Escorts ltd v. CIT (2002) 257 ITR 468 (Del) ii) CIT v. Orrisa Cement Ltd (2002) 258 ITR 365(Del) iii) CIT v. CCC Holdings (2003) 260 ITR 433(Mad) Lastly, it has been submitted by the learned DR that the learned CIT(A) has not discussed any thing in his order, for which reason, it needs to be cancelled and that of the AO is required to be restored. 4. On the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of the society, irrespective of the nomenclature employed. The learned counsel for the assessee has, therefore, requested that the order of the learned CIT(A) being a valid one, it needs to be maintained while dismissing the appeal. 5. Section 48 of the Act, which deals with the mode of computation of the income from capital gains, reads as under: Mode of computation. 48. The income chargeable under the head Capital gains shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely :-- (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) the cost of acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the long-term capital gain arising from the transfer of a long-term capital asset being bond or debenture other than capital indexed bonds issued by the Government:] 6. Thus, as per this section, the income chargeable under the head capital gain shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset, expenditure incurred wholly and exclusively in connection with such transfer, the cost of acquisition of the asset and the cost of any improvement to it. 7. The case of the department is that the voluntary contribution of Rs. 6,16,250/- made by the assessee towards the repair fund of the Cooperative Housing Society, is not admissible under the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court, on a reference, held that the refund was not to be made by the reason of the order of the appellate authority, which order was to be given effect to on evidence to be furnished by the assessee. The order of refund was passed as and when the evidence was furnished by the assessee and that to that extent , there was no delay in making a refund of the amount which the assessee was entitled to. The AO could not be blamed for completing the assessment in the absence of any evidence furnished by the assessee. So, the refund became payable on 29.8.1977, i.e., the date of passing of the order of assessment. Therefore, the assessee had rightly been held to be not entitled to interest on the refund by the Tribunal. 9. A perusal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was not supported by evidence to show the nature of the transaction the assessee had with the foreign exporter. The Hon'ble High Court held that the Tribunal was wrong in presuming that the bank got reimbursement from the assessee of the bill amount along with the interest which the bank paid to the foreign exporter. 12. Clearly, the said ratio was laid down by Hon'ble Madras High Court considering the facts of the case before them. These facts, we find are again at variance with the facts in the present case. Here, it is not at all the case of the department that the transfer of the capital asset in question would have taken place or could have taken place if the amount of Rs. 6,16,250/- had not been paid by the assessee. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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