M.L.CHARITABLE TRUST, MUMBAI V. DDIT (E) 1(1), MUMBAI

CO 142/MUM/2014

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2559 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 02-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 19-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR SINGH
• Assessee Lawyers: D J SHUKLA
• Keywords: Capital asset; Depreciation; Charitable institution; Opportunity of being heard; Principle of natural justice; Question of law; Capital expenditure
• Section: 32; 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, J UDICIAL M EMBER , A ND SHRI N.K. PRADHAN , A CCOUNTANT M EMBER ITA NO S . 3652 & 3653 /MUM/20 13 ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 DDIT(E)I(1), R. NO.504, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL, MUMBAI - 400012 / VS. M.L. CHARITABLE TRUST, 228, PRAGATI INDUSTRIAL ESTATE, N.M. JOSHI MARG, LOWER PAREL, MUMBAI - 400013 ( / REVENUE) ( /ASSESSEE) P.A. NO. AAACJM2638B ITA NO S.3893/MUM/2013 ASSESSMENT YEAR: 2008 - 09 M.L. CHARITABLE TRUST, 228, PRAGATI INDUSTRIAL ESTATE, N.M. JOSHI MARG, LOWER PAREL, MUMBAI - 400013 / VS. DDIT(E)I(1), R. NO.504, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL, MUMBAI - 400012 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAACJM2638B M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 2 C.O. NO.142/MUM/2014 (ARISING OUT OF ITA NO S.3653/MUM/2013) ASSESSMENT YEAR: 2009 - 10 M.L. CHARITABLE TRU ST, 228, PRAGATI INDUSTRIAL ESTATE, N.M. JOSHI MARG, LOWER PAREL, MUMBAI - 400013 / VS. DDIT(E)I(1), R. NO.504, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL, MUMBAI - 400012 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAACJM2638B / RE VENUE BY SHRI PRADEEP KUMAR SINGH - DR / ASSESSEE BY SHRI D. J. SHUKLA / DATE OF HEARING : 2 7 /10 /201 6 / DATE OF ORDER : 27 /10 /2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REV ENUE IS IN APPEAL FOR ASSESSMENT YEAR 2009 - 10 AND ASSESSEE HAS PREFERRED CROSS OBJECTION. FOR ASSESSMENT YEAR 2008 - 09, THE ASSESSEE AS WELL AS THE REVENUE IS IN CROSS APPEAL , AGAINST THE IMPUGNED ORDER DATED 14/02/2013 OF THE LD. FIRST APPELLATE AUTHORITY , MUMBAI . 2. FIRST, WE SHALL TAKE UP ITA NO.3652/MUM/2013, (ASSESSMENT YEAR 2008 - 09), WHEREIN, THE ONLY GROUND PERTAINS TO DIRECTION TO THE ASSESSING OFFICER TO ALLOW M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 3 THE CLAIM OF DEPRECIATION AMOUNTING TO RS.1,48,73.354/ - , WHICH AMOUNTS TO ALLOWANCE OF D OUBLE DEDUCTION AS CAPITAL EXPENDITURE INCURRED ON THE ASSET, WHICH HAS BEEN ALREADY ALLOWED AS APPLICATION OF INCOME, RELYING UPON THE DECISION FROM HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS INSTITUTE OF BANKING PERSONNEL SERVICES 264 ITR 110 (BOM.) IGNORING THE DECISION IN ESCORTS LTD. VS UOI 199 ITR 43 (SC). 2.1. DURING HEARING OF THIS APPEAL, THE LEARNED DR , SHRI PRADEEP KUMAR SINGH, ADVANCED ARGUMENTS, WHICH IS IDENTICAL TO THE GROUND RAISED. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE , SHRI D.J. SHUKLA, DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT THE ISSUE IN HAND IS COVERED BY THE DECISION FROM HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSESSEE ITSELF (ITA NO.264 OF 2013) DATED 18/03/2013, CIT VS INSTITUTE OF BANKING 264 ITR 110 AND THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2007 - 08 (ITA NO.3209/MUM/2011) ORDER DATED 03/10/2012. THIS ASSERTION OF THE ASSESSEE WAS NOT CONTROVERTED BY THE LD. DR. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILA BLE ON RECORD. IN VIEW OF THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 4 PORTION OF THE ORDER DATED 03/10/2012 IN THE CASE OF ASSESSEE ITSELF FOR ASSESSMENT YEAR 2007 - 08 (ITA NO.3209/MUM/2012 AND C.O. NO.138/MUM/2011) FOR READY REFERENCE AND ANALYSI S: - THE PRESENT APPEAL AND THE CROSS OBJECTIONS ARE DIRECTED AGAINST THE ORDER DT.15.11.2010 PASSED BY THE CIT(A) - 1, MUMBAI. FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED BY THE ASSESSING OFFICER (AO): 1)ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID.CIT(A) ERRED IN ALLOWING THE ASSESEES CLAIM OF DEPRECIATION OF RS. 1,39,49,018/ - WITHOUT APPRECIATING THE FACT THAT THE SAID CLAIM OF DEPRECIATION AMOUNTS TO CLAIMING A DOUBLE DEDUCTION, WHICH IN VIEW OF THE RATIO OF THE JUDGEMENTS IN THE CASE S OF ESCORTS LTD. VS. UNION OF INDIA (1993) 199 ITR 43 AND (1992) 65 TAX MAN 320 (SC) IN THE CASE J. K. SYNTHETICS LTD. VS. UNION OF INDIA CANNOT BE ALLOWED. 2)THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CIT (APPEALS) - 1, MUMBAI BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3)THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2.FOLLOWING CROSS OBJECTIONS WERE FILED BY THE ASSESSEE - TRUST : 1.THE LEARNED C.I.T(A) ERRED IN NOT CONSIDERING THE GROUNDS OF APPEAL SUBMITTED BY THE RESPONDENT THAT REPAYMENT OF LOANS BY THE RESPONDENT OF RS.1,55,09,525/. BE ALLOWED AS APPLICATION OF INCOME OF THE RESPONDENT IN ACCORDANCE WITH PROVISIONS OF SEC. 11 OF THE I.T.ACT, 1961. 2.THE RESPONDENT PRAYS THA T THE ASSESSING OFFICER BE DIRECTED TO ALLOW REPAYMENT OF LOANS OF RS.1,55,09,525/ - AS APPLICATION OF INCOME IN ACCORDANCE WITH PROVISIONS OF SEC. 11 OF I. T. ACT. 3.THE RESPONDENT CRAVES LEAVE TO ADD TO, AMEND, ALTER OR AMPLIFY THE GROUNDS OF CROSSOBJECT ION. 3.ASSESSEE - TRUST FILED ITS RETURN OF INCOME ON 31.11.2007 DECLARING TOTAL INCOME AT RS.NIL. ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE INCOME - TAX ACT, 1961(ACT) ON 21.12.2009 DETERMINING THE TOTAL INCOME AT RS. 1,02,34,564/ - .DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE TRUST HAD M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 5 CLAIMED AN AMOUNT OF RS.1.39 CRORES ON ACCOUNT OF DEPRECIATION ON ASSETS,COST OF WHICH HAD BEEN CLAIMED TO BE APPLICATION WITHIN THE MEANING OF SECTION 11(1)(A) OF THE ACT FOR THE PURPOSES OF AVAILING EXEMP TION U/S.11 OF THE ACT. 4.AO HELD THAT THE CLAIM OF DEPRECIATION AS APPLICATION OF INCOME U/S.11(1)(A) AGAINST THE INCOME OF THE CURRENT AY AMOUNTED TO CLAIMING DOUBLE DEDUCTION,THAT CAPITAL EXPENDITURE INCURRED ON THESE ASSETS HAD ALREADY BEEN ALLOWED AS APPLICATION OF INCOME,THAT THE JUDGMENT OF INSTITUTE OF BANKING PERSONNEL SELECTION (2003) 264 ITR 110 HAD NOT BEEN ACCEPTED ON MERITS BY THE DEPARTMENT. RELYING UPON THE ORDERS OF THE ESCORTS LTD. (199 ITR 43) AND J. K. SYNTHETICS LTD. (65TAXMANN 320) HE DISALLOWED THE CLAIM OF THE ASSESSEE ON ACCOUNT OF DEPRECIATION AMOUNTING TO RS.1.39 CRORES. 5. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE TRUST AND THE ASSESSMENT ORDER HE HELD THAT THE FACTS OF THE CASE OF THE ESCORTS LTD. (SUPRA) WERE DIFFERENT, THAT DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SELECTION (SUPRA) WAS SQUARELY APPLICABLE IN THE CASE UNDER CONSIDERATION, T HAT DEPRECIATION WAS ALLOWABLE EXPENDITURE IN THE CASE OF THE APPELLANT TRUST.HE ALLOWED THE APPEAL FILED BY THE ASSESSEE TRUST AND DELETED THE ADDITION MADE BY THE A.O. 6. BEFORE US, DR (DEPARTMENTAL REPRESENTATIVE) RELIED UPON THE ORDER OF THE A.O. AND SUBMITTED THAT THE ISSUE WAS DECIDED BY THE HONBLE HIGH COURT OF BOMBAY IN FAVOUR OF THE ASSESSEE IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SELECTION (SUPRA). HE FURTHER RELIED UPON THE ORDER OF THE HONBLE HIGH COURT OF PUNJAB AND HARYANA IN THE CASE OF MARKETING COMMITTEE, PIPLI, (330 ITR 16). 6.1.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATTER BEFORE US.WE FIND THAT THE ISSUE OF ALLOWABILITY OF DEPRECIATION;ON CAPITAL ASSET FROM THE INCOME OF THE CHARITABLE TRUST FOR DETERMINING THE QUAN TUM OF FUNDS WHICH HAVE BEEN APPLIED FOR THE PURPOSE OF TRUST IN TERMS OF SECTION 11; HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HONBLE HIGH COURTS OF BOMBAY AND PUNJAB AND HARYANA.THE HONBLE BOMBAY HIGH COURT HAS HELD, IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SELECTION(SUPRA), AS UNDER : - NORMAL DEPRECIATION CAN BE CONSIDERED AS A LEGITIMATE DEDUCTION IN COMPUTING THE REAL INCOME OF THE ASSESSEE ON GENERAL PRINCIPLES OR UNDER SECTION 11(1)(A) OF THE INCOME - TAX ACT, 1961. INCOME OF A M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 6 CHARITABLE TRUST DERIVED FROM BUILDING, PLANT AND MACHINERY AND FURNITURE IS LIABLE TO BE COMPUTED IN A NORMAL COMMERCIAL MANNER ALTHOUGH THE TRUST MAY NOT BE CARRYING ON ANY BUSINESS AND THE ASSETS IN RESPECT WHEREOF DEPRECIATION IS CLAIMED MAY NOT BE BUSINESS ASSETS. IN ALL SUCH CASES, SECTION 32 OF THE ACT PROVIDING FOR DEPRECIATION, FOR COMPUTATION OF INCOME DERIVED FROM BUSINESS OR PROFESSION IS NOT APPLICABLE. HOWEVER, THE INCOME OF THE TRUST IS REQUIRED TO BE COMPUTED UNDER SECTION 11 ON COMMER CIAL PRINCIPLES AFTER PROVIDING FOR ALLOWANCE FOR NORMAL DEPRECIATION AND DEDUCTION THEREOF FROM THE GROSS INCOME OF THE TRUST. INCOME DERIVED FROM THE TRUST PROPERTY HAS ALSO GOT TO BE COMPUTED ON COMMERCIAL PRINCIPLES AND IF COMMERCIAL PRINCIPLES ARE AP PLIED THEN ADJUSTMENT OF EXPENSES INCURRED BY THE TRUST FOR CHARITABLE AND RELIGIOUS PURPOSES IN THE EARLIER YEARS AGAINST THE INCOME EARNED BY THE TRUST IN THE SUBSEQUENT YEAR WILL HAVE TO BE REGARDED AS APPLICATION OF INCOME OF THE TRUST FOR CHARITABLE A ND RELIGIOUS PURPOSES IN THE SUBSEQUENT YEAR IN WHICH ADJUSTMENT HAD BEEN MADE HAVING REGARD TO THE BENEVOLENT PROVISIONS CONTAINED IN SECTION 11 OF THE ACT AND SUCH ADJUSTMENT WILL HAVE TO BE EXCLUDED FROM THE INCOME OF THE TRUST UNDER SECTION 11(1)(A). 7. RESPECTFULLY FOLLOWING THE ORDER OF THE HONBLE BOMBAY HIGH COURT, WE DECIDE GROUND NOS. 1, 2 & 3 AGAINST THE A.O. 8. AS A RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. 9. CROSS OBJECTIONS, FILED BY THE ASSESSEE - TRUST,WERE NOT PRESSED BY T HE AR BEFORE US, HENCE SAME ARE REJECTED. 10. AS A RESULT, THE CROSS OBJECTIONS FILED BY THE ASSESSEE - TRUST STAND DISMISSED. 2.3. WE ARE ALSO REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE ORDER OF THE HON'BLE HIGH COURT DATED 18/03/2013, (ITA (L) NO.264 OF 2013) IN THE CASE OF ASSESSEE ITSELF FOR READY REFERENCE: - IN THIS APPEAL BY TILE REVENUE FOR ASSESSMENT YEAR 2007 - 08, FO L LOWING QUESTION OF LAW HAS BEEN RAISED FOR OUR CONSIDERATION. 1) W H ETHER ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AN D IN LAW THE TRIBUNAL WAS JUSTIFIED I N CONF IR M I NG THE ORDER OF THE LEARNED CIT(A) TO M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 7 DECISION OF THE THIS COURT IN THE CASE OF CIT VS INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED IN 264 ITR 110 AND IGNORING THE RATIO OF APEX COURT DECISION IN THE CASE OF M/S. ESCORT LTD. VS UNION OF INDIA REPORTED IN 299 ITR 43? 2) THE TRIBUNAL BY IMPUGNED ORDER HAS ALLOWED THE CLAIM OF THE RESPONDENT ASSESSEE BY FOLLOWING THE DECISION IN THE CASE OF CIT VS INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED IN 264 ITR 110. T HE REVENUE HAS NOT BEEN ABLE TO POINT OUT ANY DISTINCTIONS IN THIS CASE WHICH WOULD WARRANT A TAKING OF DIFFERENT VIEW. IN THESE CIRCUMSTANCES, WE SEE NO REASON TO ENTERTAIN THE PROPOSED QUESTION OF LAW. 3) ACCORDINGLY, THE APPEAL IS DISMISSED WITH NO ORDER AS TO COSTS. 2.4. WE FIND THAT THE TRIBUNAL ON THE ISSUE OF DEPRECIATION, WHETHER IT AMOUNTS TO DOUBLE DEDUCTION CONSIDERED BOTH THE DECISIONS I.E. THE INSTITUTE OF BANKING FROM HON'BLE BOMBAY HIGH COURT AND ESCORTS LTD. FROM HON'BLE APEX COURT AND ALSO THE DECISION FROM PUNJAB & HARYANA HIGH COURT IN THE CASE OF MARKET COMMITTEE PIPLI 330 ITR 16 (P & H) AND FOLLOWING THE AFOREMENTIONED DECISION DECIDED THE ISSUE AGAINST THE REVENUE. IT IS WORTH MENTIONING THAT THE DECISION FROM HON'BLE BOMBAY HIGH COURT IS A LATER DECISION CONSIDERING ANOTHER DECISION IN DIT(E) VS FRAMJEE CAWASJEE INSTITUTE (1993) 109 CTR 463 AND ALSO ANOTHER DECISION FROM GUJARAT HIGH COURT IN CIT VS SHRI PLOT SWETAMBER MUTI PUJAK JAIN MANDAL 211 ITR 293 AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE AFORESAID DECISION FROM HON'BLE JURISDICTIONAL HIGH COURT, WE AFFIRM THE M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 8 STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THUS, THE APPEAL OF THE REVENUE IS DISMISSED. 3. NOW, WE SHALL TAKE UP THE APPEAL O F THE ASSESSEE (ITA NO.3893/MUM/2013) (ASSESSMENT YEAR 2008 - 09), WHEREIN, THE FIRST GROUND RAISED BY THE ASSESSEE PERTAINS TO REJECTING THE CLAIM OF THE ASSESSEE BY HOLDING THAT REPAYMENT OF LOAN DURING THE YEAR, AMOUNTING TO RS.45,32,980/ - WAS APPLICATION OF INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE PROVISION OF SECTION 11 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) . 3.1. DURING HEARING, THE CRUX OF ARGUMENT, ON BEHALF OF THE ASSESSEE IS THAT THE LD. ASSESSING OFFICER HAS NOT DISCUSSED WITH THIS ISSUE. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY LD. DR BUT CONTENDED THAT BEFORE THIS TRIBUNAL FOR ASSESSMENT YEAR 2007 - 08, THIS ISSUE WAS NOT PRESSED BY THE ASSESSEE. IN TURN, THE LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE UPON CIRCULAR NO.100 (CON SIDERED IN 88 ITR (ST) 66). IT WAS PRAYED THAT THIS ISSUE MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. DR HAD NO OBJECTION TO THE REQUEST OF THE ASSESSEE. 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILAB LE ON RECORD. IT IS NOTED THAT THE LD. ASSESSING OFFICER IN FACT HAS NOT MADE ANY M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 9 DISCUSSION WITH RESPECT TO THIS GROUND IN THE ASSESSMENT ORDER. CONSIDERING THE TOTALITY OF FACTS AND THE SUBMISSIONS OF THE ASSESSEE, WE ARE OF THE VIEW, THE MANDATE OF THE CONSTITUTION OF INDIA IS TO LEVY AND COLLECT DUE TAXES, THEREFORE, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, WE REMAND THIS ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AFRESH ON MERIT AND DECIDE IN ACCORDAN CE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM, THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4. THE NEXT GROUND RAISED BY THE ASSESS EE PERTAINS TO REJECTING THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE BE ALLOWED DEDUCTION OF 15% U/S 11(1)(A) OF THE ACT AMOUNTING TO RS.97,99,529/ - INSTEAD OF RS.89,97,335/ - ALLOWED BY THE ASSESSING OFFICER. THE LD. COUNSEL CONTENDED THAT DEDUCTION FROM T HE GROSS TOTAL INCOME OF THE TRUST WAS NOT ALLOWED BY THE ASSESSING OFFICER FOR WHICH OUR ATTENTION WAS INVITED TO THE ASSESSING OFFICER. RELIANCE WAS PLACED UPON THE DECISION IN CIT VS PROGRAM FOR COMMUNITY ORGANIZATION 248 ITR 1 (SC) . THE LD. DR DEFEND ED THE ADDITION. 4.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CRUX OF THE ARGUMENT ON BEHALF OF THE ASSESSEE IS THAT THE M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 10 ASSESSING OFFICER DID NOT ALLOWED DEDUCTION FROM THE GROSS TOTAL INCOME OF THE TRU ST WITHOUT REDUCING THE EXPENSES. THE HON'BLE APEX COURT IN ITS ORDER DATED 28/11/2000 IN (248 ITR 1)(SUPRA) HELD THAT ON THE PLAIN LANGUAGE OF SECTION 11(1)(A) OF THE ACT, THE ASSESSEE WAS ENTITLED TO ACCUMULATE 25% OF THE DONATION, WHICH CAN BE ACCUMULAT ED (AS APPLICABLE AT THE RELEVANT TIME). WHILE COMING TO THIS CONCLUSION, THE HON'BLE APEX COURT AFFIRMED THE DECISION OF HON'BLE KERALA HIGH COURT (1997) 228 ITR 620 (KERALA). THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE EXPLANATION /CLAIM OF THE ASSE SSEE (STATEMENT SHOWING APPLICATION OF THE INCOME OF THE TRUST). THE ASSESSEE IS DIRECTED TO PRODUCE THE NECESSARY EVIDENCE BEFORE THE ASSESSING OFFICER. IN THE LIGHT OF THE ABOVE DECISIONS, THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF TH E ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW. THUS THIS GROUND OF THE ASSESSEE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 5. THE LAST GROUND PERTAINS TO REJECTING THE CLAIM OF THE ASSESSEE THAT TOTAL INCOME FOR ASSESSMENT YEAR 2008 - 09 BE DETERMINED AT ( - ) 2,02,08,528/ - INSTEAD OF RS. NIL AT DETERMINED BY THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 24/12/2010. IDENTICAL ARGUMENT WAS RAISED BEFORE US. THE ASSESSEE HAS ALSO FILED COMPUTATION OF INCOME WHICH WAS CLAIMED TO BE M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 11 CORRECT. CONSIDERING THE TOTAL ITY OF FACTS, THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESSEE AFRESH AND IN ACCORDANCE WITH LAW, THUS, THIS GROUND IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 6. NOW, WE SHALL TAKE UP APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 200 9 - 10 (ITA NO.3653/MUM/2013), WHEREIN, DIRECTION TO THE ASSESSING OFFICER TO ALLOW THE CLAIM OF DEPRECIATION AMOUNTING TO RS.1,48,73,354/ - HAS BEEN CHALLENGED. IT IS NOTED THAT WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE IN PRECEDING PARA OF THIS ORDER, T HIS GROUND HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THEREFORE, THE APPEAL OF THE REVENUE IS DISMISSED. 7. SO FAR AS, CROSS OBJECTION OF THE ASSESSEE WITH RESPECT TO REPAYMENT OF LOAN BY THE RESPONDENT AMOUNTING TO RS.37,30,855/ - TO BE ALLOWED AS APPLI CATION OF INCOME IN ACCORDANCE WITH PROVISION OF SECTION 11 OF THE ACT IS CONCERNED, IT WAS PRAYED THAT THE LD. ASSESSING OFFICER MAY BE DIRECTED TO ALLOW REPAYMENT OF LOAN OF RS.37,30,855/ - AS APPLICATION OF INCOME. THE LD. ASSESSING OFFICER IS DIRECTED T O EXAMINE THE CLAIM OF THE ASSESSEE AFRESH, AS AGREED FROM BOTH SIDES, AND DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD AND TO SUBSTANTIATE ITS CLAIM, THUS, THE CROSS OBJECTION OF THE ASSESSEE IS ALSO ALLOWED FOR STATISTI CAL PURPOSES. M.L. CHARITABLE TRUST ITA NO S . 3652, 3653 & 3893/M UM/2013 C.O. NO.142/MUM/2014 12 FINALLY, THE APPEALS ARE DISPOSED OFF IN TERMS INDICATED HEREINABOVE. T HIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FRO M BOTH SIDES AT T H E CONCLUSION OF THE HEARING ON 27 /10 /2016 . SD/ - SD/ - ( N. K. PRADHAN ) (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 27 / 10/2016 SHEKHAR, P.S/. . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I,