DCIT,(Exemption), Circle-2, Ahmedabad V. Charotar Education Society, Annad

ITA 173/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8603 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 18-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Capital expenditure
• Section: 143(3); 148; 11

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.170 AND 173/AHD/2018 / ASSTT. YEAR: 2010-11 AND 2014-15 DCIT (EXEMPTIONS)-2 AHMEDABAD. VS. CHAROTAR EDUCATION SOCIETY C/O. D.N. HIGH SCHOOL STATION ROAD ANAND, GUJARAT 380 001. PAN : AAATC 1582 H / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : NONE ! / DATE OF HEARING : 08/04/2019 '#$ ! / DATE OF PRONOUNCEMENT: 10/04/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE REVENUE AGAINST SEPARATE ORDERS OF THE LD.CIT(A)-9 DATED 13.11.2017 PASSED FOR THE ASSTT.YEARS 2010-11 AND 2 014-15. 2. COMMON GRIEVANCE OF THE REVENUE IN BOTH THE ASSE SSMENT YEARS RELATES TO ALLOWANCE OF DEPRECIATION AMOUNTIN G TO RS.2,04,91,801/- AND RS.2,39,88,849/- IN THE ASSTT. YEAR 2010-11 AND 2014-15 RESPECTIVELY BY THE LD.CIT(A). ITA NO.170 & 173/AHD/2018 2 3. IN RESPONSE TO THE NOTICE OF HEARING NONE HAS C OME PRESENT ON BEHALF OF THE ASSESSEE. THE FACTS ON ALL VITAL POINTS ARE COMMON, THEREFORE FOR THE FACILITY OF REFERENCE WE TAKE THE FACTS FROM THE ASSTT.YEAR 2010-11. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME AT RS.NIL. THE ASSESSMENT UNDER S ECTION 143(3) OF THE INCOME TAX ACT WAS COMPLETED ON 4.9.2010 DET ERMINING TOTAL INCOME AT RS.NIL. THE AO THEREAFTER HABOURED A BELIEF THAT THE ASSESSEE HAS CLAIMED DEPRECIATION OF RS.2,04,91 ,801/- WHICH IS NOT ADMISSIBLE TO IT. THEREFORE, HE REOPENED TH E ASSESSMENT AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE SHOW CAUSE NOTICE OF T HE AO, THE ASSESSEE FILED SUBMISSIONS ON 28.12.2015. IT HAS C ONTENDED THAT AMENDMENT IN SECTION 11 HAS BEEN MADE BY FINANCE AC T(NO.2) OF 2014 W.E.F. ASSTT.YEAR 2015-16. AFTER THIS AMENDME NT, IT HAS BEEN PROVIDED THAT DEPRECIATION AS WELL AS CAPITAL EXPENDITURE IN THE SHAPE OF APPLICATION OF INCOME CANNOT BE CLAIME D SIMULTANEOUSLY; BUT UPTO ASSTT.YEAR 2014-15 BOTH WE RE ADMISSIBLE TO AN ASSESSEE WHO IS AN INSTITUTION ENGAGED IN CHA RITABLE ACTIVITIES AND ENJOYING THE BENEFIT OF SECTIONS 11 AND 12. REFERENCES TO A LARGE NUMBER OF DECISIONS WERE MADE BY THE ASSESSEE, BUT THE LD.AO WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. HE DISALLOWED THE CLAIM OF DEPRECIAT ION ON THE GROUND THAT THE ASSESSEE HAS ALREADY AVAILED DEDUCT ION FOR THE CAPITAL EXPENDITURE FOR ACQUIRING SUCH ASSETS AS AP PLICATION OF INCOME. 5. SIMILAR VIEW HAS BEEN TAKEN IN THE ASSTT.YEAR 20 14-15. ON APPEAL, THE LD.CIT(A) HAS DELETED THIS DISALLOWANCE BY FOLLOWING ITA NO.170 & 173/AHD/2018 3 DECISIONS OF JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SHE4TH MANILAL RANCHHODDAS VISHRAM BHAVAN TR UST, 198 ITR 598 (GUJ). THE LD.DR CONCEDED THAT IN VIEW OF LATEST DECISION OF HONBLE SUPREME COURT REPORTED IN (2018) 402 ITR 441 (SC) IN THE CASE OF CIT VS. RAJASTHAN AND GUJARATI FOUNDAT ION, ASSESSEE TRUST IS ENTITLED FOR THE DEPRECIATION. 6. ON DUE CONSIDERATION OF THE ABOVE FACTS, AND LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF RAJASTH AN & GUJARATI FOUNDATION (SUPRA), WE DO NOT FIND ANY MERIT IN THE SE APPEALS. THEY ARE DISMISSED. 7. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 10 TH APRIL, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER