THE ITO 3(3)(2), MUMBAI V. M/S. SHRIRAM INVESTMENT SERVICES LTD, MUMBAI

ITA 4076/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1308 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 05-05-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 06-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Depreciation; Additional evidence; Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NOS. 4076 TO 4079/MUM/2008 (ASSESSMENT YEARS: 1995-96 TO 1998-99) INCOME TAX OFFICER - 3(3)(2) M/S. SHRIRAM INVESTME NT SERVICES LTD. ROOM NO. 602, 6TH FLOOR 101/102, DALAMAL TOWER AAYAKAR BHAVAN, M.K. ROAD VS. NARIMAN POINT, MUMBAI 400021 MUMBAI 400020 PAN - AABCS 1989 E APPELLANT RESPONDENT APPELLANT BY: SHRI SANDEEP GOEL RESPONDENT BY: SHRI S.L. JAIN O R D E R PER BENCH THESE FOUR APPEALS FOR ASSESSMENT YEARS 1995-96 TO 1998-99 ARE AGAINST THE ORDERS OF THE CIT(A) XXXII, MUMBAI DATE D 22.02.2008 IN RESPECTIVE YEARS. SINCE COMMON ISSUES ARE RAISED IN ALL THE YEARS THESE ARE HEARD TOGETHER AND DECIDED BY THIS COMMON ORDER. 2. BRIEFLY STATED, THE GROUNDS RAISED REVENUE FOR ALL THE YEARS ARE AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING DEPRECIATION ON BU ILDING INCLUDING COST OF LAND CONTRARY TO THE JUDGEMENT OF THE APEX COURT IN THE CASE OF ALPS THEATRES 65 ITR 377 (SC). 3. BRIEFLY STATED, THE ASSESSEE HAD CLAIMED DEPRECIATI ON ON THE OFFICE PREMISES. THE A.O. CONSIDERED THAT THE VALUE OF OFF ICE PREMISES PURCHASED BY THE ASSESSEE ALSO INVOLVED VALUE OF LAND AND AFT ER REFERRING TO THE VALUATION, THE A.O. INITIALLY ESTIMATED THE VALUE O F SUPER STRUCTURE AT RS.19,61,200/- AND BALANCE AMOUNT OUT OF THE TOTAL COST OF RS.43,31,743/- CLAIMED BY THE ASSESSEE, TOWARDS COST OF LAND. THIS MATTER HAS ULTIMATELY REACHED UP TO THE LEVEL OF ITAT AND ITAT VIDE ITS O RDER IN ITA NO. 2517/MUM/2000 DATED 14.05.2004 RESTORED THE MATTER TO THE FILE OF THE ITA NO. 4076 TO 4079/MUM/2008 M/S. SHRIRAM INVESTMENT SERVICES LTD. 2 A.O. WITH REGARD TO THE ISSUE OF DEPRECIATION WITH A DIRECTION TO DE NOVO ADJUDICATE THE ISSUE IN THE LIGHT OF THE ADDITIONAL EVIDENCES THAT WAS PRODUCED BY THE ASSESSEE BEFORE THE TRIBUNAL IN THE PAPER BOOK. THE A.O. IN THE REASSESSMENT HAS REPEATED THE SAME ADDITION AND RESTRICTED THE CLAIM OF DEPRECIATION MADE IN 1995-96 (BEING THE FIRST YEAR) TO RS.1,96,854/- AND IN LATER YEARS ON WDV. IN DOING SO THE A.O. RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ALPS THEATRES 65 ITR 377 (SC) WHEREIN IT WAS HELD THE DEPRECIATION IS ADMISSIBLE IN THE C ASE OF SUPER STRUCTURE ONLY AND NOT IN RESPECT OF COST OF LAND. BEFORE THE CIT( A) IT WAS SUBMITTED THAT THE A.O. ERRED IN BIFURCATING THE COST OF OFFICE PR EMISES OF RS.43,31,743/- IN TWO PARTS NAMELY COST OF THE SUPER STRUCTURE AT RS. 19,61,200/- AND BALANCE COST TO THE LAND, WHILE IN FACT THERE IS NO BIFURCA TION OF COST IN THE AGREEMENT FOR PURCHASE OF THE OFFICE PREMISES AND TOTAL COST OF RS.43,31,743/- RELATE TO OFFICE PREMISES ENTITLED FOR DEPRECIATION. THE A.O. ALSO FAILED TO APPRECIATE THAT THE PROMOTER OF THE SOCIETY M/S. DALAMAL & SON S AGREED TO ACQUIRE INTEREST IN THE PLOT ON LEASE FROM THE GOVERNMENT O F MAHARASHTRA, ADMEASURING 4875 SQ. MTR, ON WHICH LEASE RENT WAS F IXED TO BE PAID AT 6.5% OF THE MARKET OF THE PLOT FIXED AT 7,200/- PER SQ. MTR. AND ACCORDINGLY LEASE RENT IS BEING PAID. THE A.O. FAILED TO APPRECIATE T HAT TILL THE TIME OF PURCHASE OF THE OFFICE NO LEASE WAS GRANTED TO THE SOCIETY B Y THE GOVERNMENT OF MAHARASHTRA AND HENCE NEITHER THE SOCIETY NOR THE A SSESSEE HAS ANY INTEREST IN THE LAND. OTHERWISE ALSO, SINCE NO PREM IUM IS BEING PAID FOR ACQUISITION OF LAND, NO VALUE CAN BE ASSIGNED TO TH E LAND. 4. THE FACTUAL MATRIX AS RECORDED BY THE CIT(A) VIDE P ARA 7 OF THE ORDER IS AS UNDER: - 7. THE APPELLANT WAS HEARD BY MY PREDECESSORS. THE APPELLANT FIELD ITS WRITTEN SUBMISSION DATED 11.05.2006 AND 26.09.2 006. THE FACTS OF THE CASE ARE THAT UNDER AN AGREEMENT DATED 31.01.19 95, OFFICE PREMISES AT DALAMAL TOWER CO-OPERATIVE SOCIETY WERE ACQUIRE D BY THE APPELLANT FOR RS.4,33,17,431/-. ASSESSEE ACQUIRED 5 SHARES OF THE SAID SOCIETY AND BECAME A MEMBER OF THE SAID SOCIETY. ASSESSEE P URCHASED THE SAID OFFICE PREMISES FROM MOHANLAL VASWANI FAMILY TRUST. MOHANLAL VASWANI FAMILY TRUST ACQUIRED THE SAID PREMISES FROM DALAMA L & SONS INVESTMENT COMPANY UNDER A SALE AGREEMENT DATED 11. 06.1980. A COPY OF THE SAID AGREEMENT HAS BEEN PLACED BY THE APPELL ANT IN COMPILATION AT PAGE NO. 18-35. IT IS POINTED OUT IN THE AGREEMENT THAT GOVT. OF ITA NO. 4076 TO 4079/MUM/2008 M/S. SHRIRAM INVESTMENT SERVICES LTD. 3 MAHARASHTRA AGREED TO PROVIDE A PLOT OF LAND ADMEA SURING 5,.831 SQ. YARDS EQUIVALENT TO 4,875 SQ. METERS ON LEASE OF 99 YEARS ON A LEASE RENT OF 6 % ON THE VALUE OF PLOT TO BE LEASED @RS.5,400 /- PER SQ. METER. THEREAFTER, CERTAIN LITIGATIONS WERE ENTERED IN TO BETWEEN THE PARTIES AND THE SUPREME COURT DETERMINED THE LEASE RENT AT 6.5% OF THE MARKET VALUE TO BE ADOPTED AT RS.7,200/- PER SQ. METER. IT WAS ARGUED THAT NO LEASE HAS BEEN EXECUTED TILL DATE. MY ATTENTION WAS DRAWN TO THE ACCOUNT OF DALAMAL TOWER CO-OPERATIVE SOCIETY LTD., AS REFE RRED IN ITAT ORDER, WHICH IS PLACED AT PAGE NO. 41-49 OF THE COMPILATIO N. THIS WAS PRODUCED BEFORE ITAT AS ADDITIONAL EVIDENCE. ON THE STRENGTH OF THIS ACCOUNT IT WAS ARGUED THAT THE COLLECTOR OF MUMBAI DEMANDED A PREMIUM OF RS.202.32 LACS FOR GRANTING LEASE OF THE LAND, AND STAMP DUTY AND OTHER CHARGES OF RS.23.62 LACS AND RS.75.56 LACS RESPECTI VELY. HENCE NO LEASE IS GRANTED IN FAVOUR OF SOCIETY TILL PURCHASE OF OF FICE PREMISES BY THE ASSESSEE ON 31.01.1995. SIMILAR DEMANDS WERE RAISED BY GOVT. OF MAHARASHTRA IN REGARD TO OTHER PLOTS OF LAND AT NAR IMAN POINT. WRIT PETITIONS WERE FILED AGAINST SUCH DEMANDS BEFORE BO MBAY HIGH COURT. MY ATTENTION WAS ALSO DRAWN TO THE DECISION IN THE CASE OF ATUL INDIA (P) LTD., AS DELIVERED BY HON'BLE SUPREME COURT (1994) (S.C.) (497). IN PARA 25 OF THE SAID DECISION THE COURT HAS REFERRED TO T HE DISTINCTION BETWEEN THE AGREEMENT OF LEASE AND AGREEMENT FOR LEASE. IN PARA 29 OF THE SAID JUDGEMENT IT IS HELD THAT RELATIONSHIP OF THE LESSOR AND LESSEE IS NOT ESTABLISHED AS THERE IS NO ACTUAL DEMISE ON THE DAT E OF ACCEPTANCE OF TERMS FOR LEASED PLOT OF LAND. THEREFORE IT IS ONLY AN AGREEMENT OF LEASE AND IT IS ONLY WHEN THE LEASE IS EXECUTED SUCH PLOT OF LAND IS DEMISED AND AVAILABLE TO THE PARTY. FOR THESE REASONS IT IS ARGUED BY THE APPELLANT THAT AS NO AGREEMENT OF LEASE HAS BEEN EX ECUTED TILL DATE IN FAVOUR OF THE SOCIETY, THE SOCIETY DOES NOT HAVE AN Y INTEREST IN THE PLOT OF LAND . ASSESSEE SUBMITTED THAT IF THE SOCIETY IS NOT HAV ING ANY INTEREST IN THE POT OF LAND ASSESSEE ALSO CANNOT HAVE ANY INTER EST IN THE PLOT OF LAND. 5. ASSESSEE ALSO FILED OPINION OF M/S. KANGA & CO. WIT H REFERENCE TO TENANT OWNERSHIP HOUSING SOCIETY AND RIGHT OF THE A SSESSEE IN THE SAID SOCIETY AND OTHER LEGAL POSITION WITH REFERENCE TO RIGHT OF THE A.O. TO REFER TO THE VALUATION OFFICER IN THE LIGHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SMT. AMIYA BALA PAUL VS. CIT 2 62 ITR 407 AND FURTHER MADE AN ALTERNATE ARGUMENT THAT THE ENTIRE EXPENDIT URE SHOULD HAVE BEEN ALLOWED AS REVENUE EXPENDITURE IN THE LIGHT OF VARI OUS LEGAL PRINCIPLES. AFTER CONSIDERING ASSESSEES DETAILED SUBMISSIONS THE CIT (A) ALLOWED THE CLAIM OF THE ASSESSEE BY STATING AS UNDER: - 15. I HAVE CONSIDERED THE FACTS OF THE CASE, ADDIT IONAL EVIDENCE AND ALSO THE SUBMISSION OF THE APPELLANT. IN THIS REGAR D, FOLLOWING OBSERVATIONS CAN BE MADE: - ITA NO. 4076 TO 4079/MUM/2008 M/S. SHRIRAM INVESTMENT SERVICES LTD. 4 (A) THE LAND ON WHICH THE BUILDING IS CONSTRUCTED IS OWNED BY THE GOVT. OF MAHARASHTRA. THE LAND WAS AGREED TO BE GIV EN TO THE SOCIETY ON LEAS FOR A PERIOD OF 99 YEARS. HOWEVER, THE LESE DEED HAS NOT BEEN EXECUTED SO FAR. HENCE, IN VIEW OF HON 'BLE SUPREME COURTS JUDGEMENT IN THE CASE OF ATUL INDIA (P) LTD ., EVEN THE SOCIETY DOES NOT HAVE ANY INTEREST IN LAND IN ABSEN CE OF LEASE DEED. HENCE, APPELLANT OBVIOUSLY HAD NO RIGHT OR IN TEREST IN THE LAND. (B) SINCE DALAMAL TOWER CO-OP. HOUSING SOCIETY IS A TENANT OWNERSHIP HOUSING SOCIETY, EVEN AFTER THE EXECUTIO N OF LEASE DEED THE LAND WILL BE HELD (AS FREEHOLD OR LEASEHOL D) BY THE SOCIETY AND THE APPELLANT BEING A MEMBER WILL OWN ONLY THE SUPER STRUCTURE. (C) THE RATIO OF APLS THEATRES 65-ITR-377(SC) CASE, IS NOT APPLICABLE TO THE CASE OF THE APPELLANT BECAUSE IN THAT CASE, THE COST OF LAND WAS SEPARATELY AVAILABLE IN THE TOTAL COST OF THE P ROPERTY. THE APPELLANT HAS NOT PAID ANY CONSIDERATION FOR LAND W HILE PURCHASING THE SAID OFFICE PREMISES. (D) FIRSTLY, IN VIEW OF SUBMISSION OF THE APPELLANT , THE VALUATION OF LAND AND BUILDING MADE BY THE VALUATION OFFICER IS NOT CORRECTLY MADE AND SECONDLY, THE VALUATION IS ALSO REDUNDANT BECAUSE APPELLANT IS NEITHER THE OWNER OF LAND, NOR HAS RIG HT IN IT, NOR THE APPELLANT HAS PAID ANY PRICE FOR IT. THE PRICE WAS PAID ONLY FOR THE SUPER-STRUCTURE. AT PRESENT, EVEN THE SOCIETY HAS N O LEASEHOLD OR FREEHOLD RIGHT IN THE LAND. (E) SINCE THEREFORE, THE APPELLANT HAS OWNERSHIP OVER T HE SUPER-STRUCTURE ONLY ITS COST IS LIABLE TO BE TREATED AS PER THE PU RCHASE PRICE OF RS.4,33,17,431/- AND DEPRECIATION @ 10% ON THIS AMO UNT SHOULD BE ALLOWED IN THE CURRENT YEAR AND ON WDV IN SUBSEQUEN T YEARS. THE REVENUE IS AGGRIEVED 6. BEFORE US THE LEARNED D.R. SUBMITTED THAT THE BUILD ING CANNOT EXIST WITHOUT LAND BELOW AND IF THE ASSESSEE HAS PAID LAR GE AMOUNT OF MONEY FOR ACQUIRING THE PROPERTY THE VALUE INVOLVES THE PRICE PAID FOR THE LAND ALSO. HE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ALPS THEATRES AND ALSO THE DECISION OF THE ITAT IN DCIT VS. CAPITAL CARS (P) LTD. 113 TTJ (DEL) 1120/114 ITD 286. IT WAS HIS SUBMISSI ON THAT THE EFFECTIVE USE OF BUILDING AND THE OWNERSHIP OF LAND AND INTER EST IN COMMON AREA AND SERVICE AREA WAS OF EQUAL IMPORTANCE. SINCE THE ASS ESSEE PURCHASED THE OFFICE PREMISES THE COST FOR THE UNDIVIDED SHARE OF THE LAND SHOULD BE EXCLUDED FOR THE PURPOSE OF DEPRECIATION. ITA NO. 4076 TO 4079/MUM/2008 M/S. SHRIRAM INVESTMENT SERVICES LTD. 5 7. THE LEARNED COUNSEL STATED THE FACTS AS RECORDED BY THE CIT(A) AND REPRODUCED THE CONTENTIONS MADE BEFORE THE CIT(A). 8. WE HAVE CONSIDERED THE ISSUE AND PERUSED THE RECORD . AS RECORDED BY THE CIT(A) THE FACTS ARE THAT THE LAND ON WHICH THE BUILDING WAS CONSTRUCTED IS OWNED BY THE GOVERNMENT OF MAHARASHTRA AND EVENT HOUGH GIVEN FOR A LEASE OF 99 YEARS THE LEASE DEED HAS NOT BEEN EXECU TED SO FAR EVEN WITH THE DALAMAL TOWER CO-OP. HOUSING SOCIETY. THE DALAMAL T OWER CO-OP. HOUSING SOCIETY IS A TENANT OWNERSHIP HOUSING SOCIETY AND E VEN IF THE LEASE DEED IS EXECUTED THE SOCIETY WILL HOLD THE LAND EITHER AS F REE HOLD OR AS LEASE HOLD AND THE INDIVIDUAL MEMBERS OF THE SOCIETY WILL OWN THE SUPER STRUCTURE ONLY. IN VIEW OF THIS FACT, THE VALUE OF THE PROPERTY PUR CHASED BY THE ASSESSEE CAN ONLY BE CONSIDERED FOR THE SUPER STRUCTURE ALONE. M OREOVER, THE SAID PURCHASE DEED ALSO STATES THE FOLLOWING: - 1. THE VENDOR HEREBY SELLS, TRANSFERS AND ASSIGNS, AND THE PURCHASER HEREBY PURCHASES AND ACQUIRES THE SAID FI VE SHARES BEARING NOS. 1116 TO 1120 AND THE SAID PREMISES NO. 118 ON THE 1 ST FLOOR IN THE BUILDING KNOWN AS DALAMAL TOWER SIT UATED AT 211, NARIMAN POINT, BOMBAY 400021 BOMBAY AT OR FOR THE PRICE OF RS.3,91,57,000/- (RUPEES THREE CRORES NINETY-ONE LA CS FIFTY- SEVEN THOUSAND ONLY). 2. THE VENDOR HAS APPLIED TO GET THE PURCHASER ADMI TTED AND ENROLLED AS A MEMBER OF THE SAID DALAMAL TOWERS PRE MISES CO- OPERATIVE SOCIETY LTD. AND AS OWNER OF THE PREMISES IN THE RECORDS OF THE SOCIETY AND AGREES TO EXECUTE IN FAVOUR OF T HE PURCHASER SUCH DOCUMENTS FOR ENROLMENT AS MAY BE REQUIRED BY THE PURCHASER FOR VESTING THE PREMISES IN THE NAME OF T HE PURCHASER. 3. THE VENDOR HAS HANDED OVER POSSESSION OF THE SAI D PREMISES TO THE PURCHASER AND HAS RECEIVED THE FULL PRICE IN AC CORDANCE WITH THIS DEED. 4. THE PURCHASER HAS PAID TO THE VENDOR RS.5,91,57, 000/- (RUPEES THREE CRORES NINETY-ONE LACS FIFTY-SEVERN THOUSAND) IN FULL CONSIDERATION OF THE SALE OF SHARES AND PREMISES. 5. THE VENDOR HEREBY COVENANTS WITH THE PURCHASER A S FOLLOWS: - I) THAT THE VENDOR IS THE SOLE AND ABSOLUTE OWNER OF THE SAID SHARES AS THE SAID PREMISES AND NO OTHER PERSON OR PERSONS HAS OR HAVE ANY RIGHT, TITLE, INTEREST, PROPERTY, C LAIM OR DEMAND OF ANY NATURE WHATSOEVER UNTO OR UPON THE SAID PREM ISES, EITHER BY WAY OF SALE, CHARGE, LIEN, GIFT, TRUST, L EASE, EASEMENT OR OTHERWISE HOWSOEVER AND HAS GOOD RIGHT, FULL POW ER AND ITA NO. 4076 TO 4079/MUM/2008 M/S. SHRIRAM INVESTMENT SERVICES LTD. 6 ABSOLUTE AUTHORITY TO SELL AND TRANSFER THE SAME TO THE PURCHASER. 9. AS PER THE ABOVE, WHAT THE ASSESSEE HAS PURCHASED I S ONLY A RIGHT TO OCCUPY THE SUPER STRUCTURE ALONGWITH SHARES IN THE SOCIETY. EVEN THE AGREEMENT FOR SALE ENCLOSED TO THE PURCHASE DOCUMEN T, ENTERED BETWEEN THE DEVELOPERS AND THE SELLER M/S. MOHANLAL VASWANI FAM ILY TRUST INDICATES THAT THE GOVERNMENT OF MAHARASHTRA GAVE THE PROPERT Y ON LEASE FOR 99 YEARS AND THE LEASE RENT WAS FIXED AT 6% OF THE VALUE THE RE AT RS.5,400/- SQ.MTR. AND THIS LEASE ASSIGNMENT WAS SUBJECT MATTER OF PET ITIONS AND ULTIMATELY THE MATTER WAS SETTLED BY THE ORDER OF THE HON'BLE SUPR EME COURT DATED 16.10.1978 AND THE DEVELOPER AGREED THAT THE LEASE RENTAL TO BE PAID AT 6% ON NOTIONAL VALUE OF RS.7,200/- PER SQ. MTR. AND TH E AMOUNTS WERE PAID AS REQUIRED BY THE GOVERNMENT IN 12 INSTALMENTS FROM 1 ST MAY 1980. IN VIEW OF THE ABOVE, IT IS VERY CLEAR THAT THE ASSESSEE DOES NOT HOLD ANY RIGHT IN THE LAND AND EVEN THE SOCIETY ALSO HOLDS ONLY LEASE HOL D RIGHTS AND NOT FULL OWNERSHIP. IN VIEW OF THIS, THE ASSESSING OFFICERS ACTION IN ALLOCATING THE COST TO THE SO CALLED LAND VALUE DOES NOT ARISE AT ALL. THE DECISION IN THE CASE OF ALPS THEATRES IS NOT APPLICABLE AS NO AMOUNT WAS PAID FOR ANY LAND. 10. NOT ONLY THAT THE DECISION RELIED UPON BY THE LEARN ED D.R. IN THE CASE OF DCIT VS. CAPITAL CARS (P) LTD. IS ALSO NOT APPLI CABLE.THE FACTS OF THE CASE WAS THAT THE ORIGINAL OWNER ACQUIRED THE LAND FROM THE GHAZIABAD DEVELOPMENT AUTHORITY WHICH PERMITTED THEM TO DEVEL OP AND CONSTRUCT A MULTI-STOREY SHOPPING-CUM-OFFICE COMPLEX AND SELL V ARIOUS CONSTRUCTED UNITS TO THE PROSPECTIVE PURCHASES. ON EXAMINATION OF VAR IOUS DEEDS THE HON'BLE ITAT HELD THAT WHEN THE DOCUMENTS WERE EXECUTED BY THE SELLER WITH THE GDA IT BECOMES CLEAR THAT THE SUBJECT MATTER OF SAL E WAS BUILDING AND PROPORTIONATE SHARE IN THE LAND ETC. ON THOSE FACTS THE ITAT HELD THAT THE BUILDING CANNOT STAND WITHOUT LAND BENEATH IT. THER EFORE, FOR EFFECTIVE USE OF THE BUILDING, THE OWNERSHIP OF LAND AND INTEREST IN COMMON AREAS AND SERVICE AREAS WAS OF EQUAL IMPORTANCE. THE SUBJECT MATTER OF AGREEMENT WAS LAND AND BUILDING FOR WHICH THE CONSIDERATION WAS P AID. ACCORDINGLY THE ITAT HELD THAT CONSIDERING THE AGREEMENT AS A WHOLE, THE ASSESSEE HAD PURCHASED BUILDING AND PROPORTIONATE UNDIVIDED PORT ION OF LAND, AND AO WAS ITA NO. 4076 TO 4079/MUM/2008 M/S. SHRIRAM INVESTMENT SERVICES LTD. 7 JUSTIFIED, IN THE ABSENCE OF VALUATION OF LAND SUBM ITTED BY ASSESSEE, TO TAKE 1/3 RD OF TOTAL CONSIDERATION AS COST OF LAND AND DISALLO WING DEPRECIATION THEREON . THIS DECISION WAS GIVEN IN THE PARTICULAR FACTS OF THE CASE WHEREIN THE SELLER HAD PURCHASED THE PROPERTY FROM GHAZIABA D DEVELOPMENT AUTHORITY AND COST OF THE BUILDING INCLUDES UNDIVID ED PART OF THE LAND AS AGREED. 11. IN THIS CASE THE ASSESSEE HAS PURCHASED THE SUPER S TRUCTURE ALONE WITH MEMBERSHIP IN THE SOCIETY IN THE TENANT OWNERS HIP HOUSING SOCIETY CALLED DALAMAL CO-OPERATIVE HOUSING SOCIETY, WHO IT SELF HAD ONLY A LEASE HOLD RIGHT AS THE LAND IS OWNED BY THE GOVERNMENT O F MAHARASHTRA. IN VIEW OF THIS, WE UPHOLD THE ORDER OF THE CIT(A) ON THE FACTS OF THE CASE. THERE IS NO NEED TO INTERFERE WITH THE FINDING GIVEN BY THE CIT(A). THE REVENUES GROUND IN ALL THE FOUR YEARS IS REJECTED. 12. IN THE RESULT, ALL THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE 2010. SD/- SD/- (N.V. VASUDEVAN) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 25 TH JUNE 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXXII, MUMBAI 4. THE CIT III, MUMBAI CITY 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.