ITO, Pune V. Bharti Vidyapeeth, Pune

ITA 1592/PUN/2012

• Counselvise Citation: 159224514 RSA 2012
• Duration Of Justice: 1 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Depreciation; Capital receipt
• Section: 10; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1592/PN/2012 (A.Y: 2007-08) ACIT, CIRCLE 2(2), PUNE APPELLANT VS. BHARATI VIDYAPEETH BHARATI VIDYAPEETH BHAVAN, L.B.S. MARG, PUNE - 411030 PAN: AAATB1836D RESPONDENT APPELLANT BY : SHRI A.K. M ODI RESPONDENT BY : SHRI NIK HIL PATHAK DATE OF HEARING: 06.03.2014 DATE OF ORDER : 27.03.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-CENTRAL, [IN SHORT CIT(A)] PUNE, DATED 31.05.2012 FOR A.Y. 2007-08 ON THE FOLL OWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LEARNED CIT (A) HAS ERRED IN TREATING THE DEVELOPME NT FEES COLLECTED, PROPORTIONATELY AS CAPITAL RECEIPTS AND REVENUE RECEIPTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED IN FURTHER DIRECTING THE AO TO RE COMPUTE THE FIGURE OF DEPRECIATION ALLOWANCE BY RED UCING THE ABOVE MENTIONED DEVELOPMENT FEES OF RS. 16,83,54,071/- FROM THE COST OF THE ASSETS TO ARRIV E AT THE FIGURE OF ACTUAL COST OF THESE ASSETS TO THE APPELL ANT FOR THE COMPUTATION OF DEPRECIATION IN ACCORDANCE WITH THE EXPLANATION 10 OF SECTION 43(1) OF THE I.T.ACT AND ALLOW THE 2 SAME TO THE APPELLANT. THIS ISSUE IS PENDING WITH T HE HON'BLE ITAT FOR THE EARLIER YEAR ALSO. 3. FOR THESE AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF THE HEARING, THE ORDER OF THE LEARNED COMMI SSIONER OF INCOME-TAX (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUND OF APPEAL DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL. 2. IT WAS POINTED OUT THAT THIS IS THE APPEAL AGAI NST THE ORDER OF CIT(A) IN RESPECT OF ORDER GIVING EFFECT, PASSED BY ASSESSING OFFICER U/S.143(3) R.W.S. 250. THE ASSESSEE IS A C HARITABLE TRUST AND FOR A.Y. 2007-08, IT HAD CLAIMED EXEMPTION U/S. 11 OF I.T ACT. IN ORIGINAL ASSESSMENT, THE ASSESSING OFFICER DENIE D THE EXEMPTION U/S.11 OF ACT ON THE GROUND THAT THE ASSE SSEE HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(D). THE M ATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN T HE VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESSEE AND H AVING CONSIDERED THE SAME, CIT(A) HAD CONFIRMED THE ORDER OF ASSESSING OFFICER ON THE POINT. HOWEVER, HE DIRECTED THE ASS ESSING OFFICER TO CONSIDER THE FEE COLLECTED FROM STUDENTS AS PER GOVERNMENTS CIRCULAR FOR PURCHASE OF CAPITAL ITEM AS CAPITAL RE CEIPT. THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF CIT(A), TAXED THE ENTIRE AMOUNT COLLECTED BY ASSESSEE AS REVENUE RECEIPT. THE ASSESSEE, AGAIN FILED AN APPEAL BEFORE CONCERNED CI T(A), WHEREIN, IT WAS HELD THAT THE DEVELOPMENT FEE COLLECTED OF 16.83 CRORES SHOULD BE TREATED AS CAPITAL RECEIPT NOT CHARGEABLE TO TAX, AGAINST WHICH, THE DEPARTMENT IS IN APPEAL BEFORE US. MEAN WHILE, THE APPEAL OF ASSESSEE AGAINST THE ORIGINAL ASSESSMENT ORDER U/S.143(3), WHEREIN, EXEMPTION U/S.11 OF ACT WAS DE NIED CAME UP FOR HEARING BEFORE ITAT, WHEREIN, IT WAS HELD TH AT THE ASSESSEE TRUST IS ENTITLED TO EXEMPTION U/S.11 OF ACT. ACCO RDINGLY, THE APPEAL WAS ALLOWED. IN VIEW OF THIS ORDER OF ITAT, WHEREBY, THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION U/S.11 OF A CT. NOTHING 3 CONTRARY HAS BEEN BROUGHT TO OUR KNOWLEDGE ON BEHAL F OF REVENUE. ONCE THE ASSESSEE IS ENTITLED FOR EXEMPTI ON U/S.11 OF ACT, THE ISSUE WHETHER DEVELOPMENT FEE COLLECTED BY ASSESSEE IS TO BE TREATED AS REVENUE OR CAPITAL RECEIPT BECOMES AC ADEMIC. THIS FACT HAS NOT BEEN DISPUTED ON BEHALF OF REVENUE. S O, CONSIDERING THE DECISION OF TRIBUNAL REGARDING ALLOWABILITY OF EXEMPTION U/S.11 OF ACT, THE ISSUE OF TAXABILITY OF DEVELOPME NT FEE AS REVENUE RECEIPT OR CAPITAL GOES ACADEMIC. ACCORDIN GLY, THE SAME IS DISMISSED. HOWEVER, THE REVENUE IS AT LIBERTY T O REVIVE THE SAME AS AND WHEN THE SITUATION ARISES FOR THE SAME. 3. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 27 TH OF MARCH, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH MARCH, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-CENTRAL, PUNE 4) THE CIT-CENTRAL, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE