HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 105 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Imperial Motor Stores ... Respondent Mr.S.M. Shah for the Appellant. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL,JJ. K.U.CHANDIWAL,JJ. K.U.CHANDIWAL,JJ. DATED: JULY 02, 2008 DATED: JULY 02, 2008 DATED: JULY 02, 2008 P.C. P.C. P.C. . The question of law is as framed in Para No. 4 of the Appeal Memo. The admitted facts are that the assessee had sold two office premises viz. G2 and G2A on the basement of Prasad Chambers Premises CHS Ltd. Opera House, Mumbai 400 004. The Assessing Officer on the basis that the depreciation is leviable for those properties, passed an order which was impugned before the C.I.T.(A). The C.I.T. (A) noted that Section 50 of the Income Tax Act consists of two provisions for capital gains for depreciable assets and therefore, it has to over ride the general procedure for computing the capital gains under section 48. It has further held that the fiction created under section 50 for deeming any provision arising on transfer of a depreciable asset as short term capital gain is for purposes of section 48 only. Relying on the judgment of Guwahati High Court and Gujarat High Court, it was held that long term capital asset has been transferred. This order was taken in appeal by Revenue. The tribunal followed the decision of Guwahati High Court in the case of CIT Vs. Assam Petroleum Industries, 262, ITR 587 (Gauhati). Revenue has been unable to show that on immovable properties depreciation is allowed and that in fact the respondent herein had claimed depreciation. . In our opinion, it is not possible to take a view different from the I.T.A.T. In the light of that, the question of law as framed would not arise. Hence, appeal dismissed. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)