IN THE HIGH COURT OF DELHI AT NEW DELHI 
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  31.05.2011 
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 Present:        Ms. Prem Lata Bansal, Sr. Advocate with Mr. Deepak Anand, 
 Advocate for the appellant. 
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 + ITA No. 782/2011 
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 1.       During the assessment proceedings, the Assessing Officer noticed 
 that the assessee had sold one property situated at Noida for a 
 consideration of `80 lakhs vide sale deed dated 16th September, 2005.  It 
 was further noticed that the land was purchased on 23rd November, 1995 
 for a stated consideration of `14,97,005/- on which, no depreciation had 
 been claimed and building was constructed by the assessee. Thereafter, 
 WDV of which as on 1st April, 2005 was declared at `20,01,285/-.  Further 
 assessee had bifurcated sale consideration of `80 lakhs towards land and 
 building at `54,02,000/- and `25,98,000/- respectively, in support of 
 which, assessee had filed Government Approved Valuer?s Report. 
 2.       The Assessing Officer further noticed that for stamp duty 
 purposes, property was valued at `87,62,000/- on which, assessee had paid 
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 stamp duty @ 8%.  As per this valuation, land value was determined at 
 `32,72,544/- and building value at `53,60,301/-. 
 3.       On being asked, assessee admitted to valuation at `66,32,845/- 
 and also the building valuation at `53,60,301/-. Thus, he re-determined 
 Short Term Capital Gain at `33,59,016/- as against `5,96,714/- declared 
 originally.Thus, addition of `27,62,302/- was made by the Assessing 
 Officer to the Short Term Capital Gain. 
 4.       Similarly, Assessing Officer required the assessee as to why 
 valuation attributed to land be not taken at `53,55,000/- as determined 
 by the Government Approved Valuer as he being the expert in valuation. 
 The valuation remained un-rebutted and therefore, Assessing Officer 
 treated the amount of `53,55,000/- as sale consideration towards land as 
 declared by the assessee itself and determined Long Term Capital Gain at 
 `27,07,272/-. 
 5.       The Assessing Officer also set off unabsorbed depreciation only 
 to the extent of `11,107/- being the business income and did not allow 
 the same against other income. 
 6.       In appeal filed by the assessee before the CIT(A), the CIT(A) 
 held additions.   Insofar as first in respect of sale of property with 
 respect to land at Noida is concerned, CIT(A) held that the provision of 
 Section 50-C of the Income Tax Act, applicable to the present case as 
 value of property determined by the Stamp Duty Authority was higher than 
 the value declared by the assessee.  However, we observe that the 
 Assessing Officer should not have taken sale consideration of 
 `1,07,15,301/- [`53,60,301/- value of building + `53,55,000/- for land]. 
 He also directed Assessing Officer to allow set off of unabsorbed 
 depreciation not only against the disclosed income but also against other 
 rights of income.  This order of the CIT(A) has been upheld by the ITAT 
 relying upon the judgments in CIT v. Jaipur China Clay (SC) 59 ITR 155 
 and CIT v. Mother India Refrigeration (SC) 155 ITR 711. 
 7.       We do not find any question of law which arises in this case. 
 8.       Dismissed. 
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 A.K. SIKRI, J. 
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 M.L. MEHTA, J. 
 MAY 31, 2011 
 AK 
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