Bai Kabibai & Hansraj Morarji Charity ... vs Department Of Income Tax

आयकर अपील य अ धकरण, बी खंडपीठ मुंबई INCOME TAX APPELLATE TRIBUNAL,MUMBAI-B,BENCH सव ी जो ग दर संह, या यक सद य एवं राजे , लेखा सद य Before S/Sh. Joginder Singh,Judicial Member & Rajendra,Accountant Member आयकर अपील सं/.ITA No.5842/Mum/2011, नधारण वष/Assessment Year-2008-09 Income tax Officer-(E) I(1) Bai Kabibai & Hansraj Morarji Room No.505, Piramal Chambers, Charity Trust,26, Bora bazar 5th Floor, Parel,Mumbai-400 012. Vs Street, Fort -Mumbai.

PAN:AAATB 0159 K (अपीलाथ /Appellant) ( यथ / Respondent) नधा रती ओर से/Assessee by :Shri Surendra Nijsure राज व क ओर से/ Revenue by :Shri Yogesh Kamat , Sr. AR सुनवाई क तार ख/ Date of Hearing : 16- 06 -2015 घोषणा क तार ख / Date of Pronouncement : 16-06-2015 आयकर अ ध नयम,1961 क धारा 254(1)के अ तगत आदे श

Order u/s.254(1)of the Inco me-tax Act,1961(Act) लेखा सद य राजे के अनुसार PER RAJENDRA, AM-

Challenging the order dt.8.5.2011 of CIT(A)-I, Mumbai, the Assessing Officer(AO), has raised following Grounds of Appeal:

"1.On the facts and in the circumstances of the case, and in law, the Learned Commissioner of Income Tax (Appeals) erred in directing the Assessing Officer to allow depreciation on fixed assets without appreciating the fact that the capital expenditure incurred on acquiring the assets has already been claimed as application of income u/s. 11 of the I. T.Act 1961 in the current / past years.

2.On the facts and in the circumstances of the case, and in law, the Learned Commissioner of Income Tax (Appeals) erred in not appreciating the fact that allowing of depreciation will result in double deduction which is contrary to the ratio laid down by the Hon'ble Supreme Court in the case of Escorts Ltd. v/s. Union of India 199 ITR 43 and J.K.Synthetics v/s. Union of India (1920 65 TAXMAN 420.)

3. On the facts and in the circumstances of the case, and in law, the Learned Commissioner of Income Tax (Appeals) erred in not appreciating the fact that the deficit arises out of expenditure out of income on which exemption has already been claimed and allowing of set off of deficit of earlier year against income of current year will result in double deduction which is contrary to the ratio laid down by the Hon'ble Supreme Court in the case of Escorts Ltd vs. UOI 199 ITR 43 and J.K. Synthetics v/s. Union of India (1992) 65 TAXMAN 420.

4.The Appellant craves leave to amend or alter any ground or add a new ground which may be necessary."

2.During the course of hearing before us, Representatives of both the sides agreed that in the earlier years identical issue has been decided in favour of the assessee by the Tribunal. We find that the Hon'ble Bombay High Court had also decided the issue in favour of the assessee for the 5842/11-Bai Kabibai

assessment year 2007-08. We will like to reproduce the order of the Tribunal for the AY 2009- 10( ITA No.5312/Mum/2012 dt.12.3.15) "2. At the outset it may be noticed that learned CIT(A) followed the decision , of Hon'ble Bombay High Court in assessee's own case for A.Y. 2003-04 in holding that the assessee is entitled to depreciation and does not amount to double deduction. Para 3.3 in this regard reads as under :-

"3.3 I have carefully considered the facts of the case, submission of the appellant and assessment order. I find that the appellant has taken up the matter for A. Y.2003-04 in writ before the Hon'ble Bombay high Court who has allowed the writ not only on issue of notice u/s. 148 for reopening the assessment, but also on the issue of allowing depreciation for computing application of income and confirmed the decision in the case of CIT vs. Institute Of Banking Personnel reported in 264 ITR 110. Respectfully following the. decision of Bombay High Court in the appellant's own case for A. Y.2003- 04 vide writ petition No.55 of 2011, the A.D. is directed to allow depreciation claimed by the appellant. Ground No. 1 is allowed ....

3. At the time of hearing learned counsel placed before us a copy of the order of Hon'ble High Court and also decision of the ITAT in assessee's own case for A.Y. 2007-08 (ITA No. 2019/Mum/2011 dated 13.1.2015) wherein identical issues were decided in favour of the assessee.

4. Since the views taken by learned CIT(A) are in consonance with the view taken by the ITAT,and Hon'ble High Court (supra), we do not find any infirmity in the order passed by the learned CIT(A) and dismiss the appeal filed by the Revenue ."

Respectfully,following the above, grounds of appeal raised by the Assessing Officer, are decided against him.

As a result,appeal filed by the AO stand dismissed.

फलतः नधा रती अ धकार वारा दा खल क गई अपील नामंजूर क जाती है.

Order pronounced in the open court on 16th,June,2015.

आदे श क घोषणा खल ु े यायालय म दनांक 16 जून,2015 को क गई ।

Sd/- Sd/- (जो ग दर संह/ Joginder Singh) (राजे / RAJENDRA) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मुंबई/Mumbai, दनांक/Date: 16.06.2015 व. न.स.Jv.Sr.PS. आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1.Appellant /अपीलाथ 2. Respondent / यथ

3.The concerned CIT(A)/संब ध अपील य आयकर आयु त, 4.The concerned CIT /संब ध आयकर आयु त

5.DR " " Bench, ITAT, Mumbai / वभागीय त न ध, ए खंडपीठ,आ.अ. याया.मुंबई

6.Guard File/गाड फाईल स या पत त //True Copy// आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai.

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