M/s. Krishi Upaj Mandi Samiti, Bankhedi V. The ACIT, Bhopal

ITA 239/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1454 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-11-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 14-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S S DESHPANDE
• Keywords: Depreciation; Charitable institution; Principle of natural justice; Revised return; Set aside
• Section: 234B; 12A; 12AA; 251; 32; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGENDER SINGH, JM & SHRI V.K.GUPTA, AM ITA NO.239/IND/2009 AY: 2005-06 KRISHI UPAJ MANDI SAMITI, BANKHEDI, HOSHANGABAD (PAN AAALK 0260 G) APPELLANT VS. ACIT-1(1), BHOPAL RESPONDENT ASSESSEE BY S.S.DESHPANDE, CA DEPARTMENT BY SHRI V.K. KARAN, SR. DR PER V.K.GUPTA,AM THIS APPEAL, FILED BY THE ASSESSEE, ARISES OUT OF O RDER OF LD. CIT DATED 12.10.20-09 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PER USED THE MATERIAL ON RECORD. 3. GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL RE AD AS UNDER:- 1. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ADDITION IS CONTRARY TO LAW, MATERIALLY INCORRECT A ND UNSUSTAINABLE IN LAW AS WELL AS FACTS. AN ADDITION, THAT ALL THE FIN DINGS RECORDED THEREIN ARE CONTRARY TO THE EVIDENCE AND INCORRECT. 2. THAT ON THE FACTS& IN THE CIRCUMSTANCES OF THE CASE AND LAW, A FAIR PROPER & MEANINGFUL OPPORTUNITY HAS NOT BEEN ALLOWE D TO THE ASSESSEE TO PUT UP THE DEFENCE ON THE ISSUE DISPUTED IN THIS APPEAL. 2 3. THAT ON THE FACTS & IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO MAKE THE ENHANCEME NT U/S 251 OF IT ACT 1961 IS IMPROPER, UNJUSTIFIED & UNWARRANTED. 4. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT (A)-I BHOPAL ERRED TO NOT CONSIDER THE PENSION FUND (ARAKSHIT NIDHI) RS. 198959/- WITHOUT ANY CONCRETE REASONS WHICH IS IMPROPER, UNJUSTIFIED & UNWARRANTED. 5. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO NOT CONSIDER THE I NTEREST ON PENSION FUND (ARAKSHIT NIDHI) RS. 218884/- AS THE SAME IS C OVERED U/S 11 TO 13 OF IT ACT 1961 WHICH IS IMPROPER UNJUSTIFIED & UNWA RRANTED. 6. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT (A)-I BHOPAL ERRED TO DISALLOW THE DEPR ECIATION CLAIMED RS. 779448/- WHICH IS IMPROPER, UNJUSTIFIED & UNWAR RANTED. 7. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO NOT CONSIDER BOARD FEE OF RS. 5054/- WHICH IS IMPROPER, UNJUSTIFIED & UNWARRANTED. 8. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO NOT CONSIDER THE C ASE IN VIEW OF THE REGISTRATION GRANTED U/S 12A BY RESPECTED CIT (A)-I BHOPAL WHICH IS BAD IN LAW. 9. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT (A)-I BHOPAL ERRED TO NOT CONSIDER THAT THE ASSESSEE IS A TRUST THEREFORE SECTION 11 TO 13 ARE APPLICABLE IN THE INSTANT CASE, HENCE ENTIRE INCOME EARNED BY TRUST IS EXEMPTED WHICH IS NOT CONSIDERED AND EXEMPTION IS GIVEN TO THE ASSESSEE WHICH IS IMPROPE R, UNJUSTIFIED & UNWARRANTED. 10. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO ENHANCE THE INCOME BY WITHDRAWN THE DEPRECIATION BY RS. 812898/- WHICH IS IMPROPER, UNJUSTIFIED & UNWARRANTED 3 11. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO NOT GIVE THE DIREC TIONS TO AO TO DEDUCT THE FIXED FUND RESERVE (STHAI NIDHI) AS PER THE PROVISION OF SECTION 25A(6) OF THE MANDI ACT WHICH IS IMPROPER, UNJUSTIFIED & UNWARRANTED. 12. THAT ON THE FACTS & IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO DID NOT CONSIDER T HE CASE AS PER DECISION MADE BY THE HONBLE ITAT BENCH INDORE SUBM ITTED BEFORE HIM HENCE THE SAME IS BAD IN LAW ALSO AGAINST THE P RINCIPLE OF NATURAL JUSTICE. 13. THAT ON THE FACTS & IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I BHOPAL ERRED TO CONFIRM ALL THE AD DITION AS PER ASSESSMENT ORDER AND ENHANCED THE INCOME AS PER HIS ENHANCEMENT NOTICE DATED 18.12.2008 WHICH IS REPUGNANT TO LAW. 14. THAT ON THE FACTS & IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED CIT (A)-I BHOPAL ERRED TO CHARGE THE INTERE ST U/S 234B AT RS. 123514/- WHICH IS NOT LEVIABLE HENCE, THE SAME IN I MPROPER, UNJUSTIFIED & UNWARRANTED. 15. THAT THE APPELLANT CRAVES LEAVE TO PUT FRESH GROUND S AT THE TIME OF HEARING IF NECESSARY. 4. GROUND NO. 1, 2, 3, 12 & 13 WERE NOT PRESSED, H ENCE, DISMISSED AS NOT PRESSED. 5. AS REGARD THE ISSUES RAISED IN GROUND NO,4 THE L D COUNSEL SUBMITTED THAT THIS ISSUE REQUIRED TO BE SET SIDE TO THE FILE OF THE AO IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE HE CASE OF KRISHI U PAJ MANDI SAMITIES IN A 4 CONSOLIDATED ORDER DATED 24.07.09 IN ITAS NO. 338/I ND/ 2009, 343,344,345,AND 363/IND/2009 REFERRED TO PARA 8 OF SAID ORDER OF THE TRIBUNAL. THE LD. DR ALSO AGREED. 6. WE FIND THAT THIS ISSUE HAS BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF AO BY OBSERVING AS UNDER:- ON CONSIDERATION OF ABOVE FACTS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION BY THE AO AS IS DIR ECTED IN THE CASE OF KRISHI UPAJ MANDI SAMITI, BURHANPUR (SUPRA). APART FROM IT, IN OTHER CASES OF KRISHI UPAJ MANDI, KHANDWA & KHIRKIA, IT WAS NOT ED WHEN ACTUAL PAYMENTS ARE MADE ON THIS HEAD, THE SAME IS ALLOWAB LE DEDUCTION. THE CRUX OF THE FINDINGS OF ALL THE ABOVE ORDERS OF THE TRIBUNAL ARE THAT IF THE STATUTORY PAYMENTS ARE MADE AS PER DIRECTION OF THE BOARD, THE SAME ARE ALLOWABLE DEDUCTION BEING STATUTORY PAYMENTS. IN TH E CASE OF KRISHI UPAJ MANDI SAMITI, BURHANPUR (SUPRA), IT WAS HELD THAT T HE PAYMENTS ARE MADE TOWARDS STATUTORY PAYMENTS, THEREFORE, AUTHORITIES BELOW SHOULD HAVE CONSIDERED THE CASE OF THE ASSESSEE FROM THIS POINT WHETHER THE ASSESSEE HAD MADE ACTUAL PAYMENTS TO AARAKSHIT NIDHI OR NOT. WHEN ACTUAL PAYMENTS ARE MADE ON THIS HEAD, THE DEDUCTION IS AL LOWABLE IN FAVOUR OF THE ASSESSEE. HOW THE AMOUNT HAS BEEN UTILIZED AS P ER DIRECTION OF THE MANDI IS NOT THE RELEVANT CRITERIA. SINCE IT WAS A STATUTORY PAYMENT AS PER THE SPECIAL ACT AND WHEN THE AMOUNT IS INCURRED BY TRANSFERRING THE FUNDS, THE SAME SHALL HAVE TO BE ALLOWABLE DEDUCTIO N. THE AO WITHOUT VERIFYING THE FACTS HAVE MADE THE DEDUCTION. WE, AC CORDINGLY, SET ASIDE 5 THE ORDERS OF AUTHORITIES BELOW AND RESTORE THIS IS SUE TO THE FILE OF THE AO FOR VERIFYING THE PAYMENT TO PENSION FUND (AARAKSHI T NIDHI) OF THE ASSESSEE AND IF ACTUAL AMOUNT IS TRANSFERRED, THE S AME WILL BE ALLOWED AS DEDUCTION IN FAVOUR OF THE ASSESSEE. AS A RESULT, T HESE GROUNDS OF APPEALS OF BOTH THE ASSESSEES ARE ALLOWED FOR STATISTICAL P URPOSES. 7. THE FACTS ARE IDENTICAL, HENCE, WE ALSO RESTORE THIS ISSUE TO THE FILE OF AO FOR ADJUDICATION THEREOF ON SIMILAR LINES. 8. AS REGARD THE ISSUE RAISED IN GROUND NO.5, THE L D. COUNSEL FAIRLY SUBMITTED THAT THIS ISSUE WAS COVERED AGAINST THE ASSESSEE BY THE IMPUGNED CONSOLIDATED ORDER OF TRIBUNAL AND AS DREW OUR AT TENTION TO PARA 10 OF PAGE 6 OF THE SAME. 9. WE FIND THAT THE TRIBUNAL HELD THAT INTEREST INC OME ON RESERVE FUND REMAINING WITH THE ASSESSEE WAS ITS INCOME, HENCE, FOLLOWING THE SAME, WE ALSO HOLD SO IN THE PRESENT CASE BEFORE US. THUS, T HIS GROUND OF THE ASSESSEE IS DISMISSED. 10. AS REGARD THE ISSUE RAISED IN GROUND NO. 6, THE LD COUNSEL FOR THE ASSESSEE FAIRLY ADMITTED THAT THIS ISSUE WAS ALSO C OVERED AGAINST THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF KRIS HI UPAJ MANDI SAMITI VS. DEPUTY CIT AS REPORTED IN 12 ITJ 1 AND DREW OUR ATT ENTION TO RELEVANT PARAS OF THE SAME THIS ORDER. WE FIND THAT IN THE CASE CI TED BY THE ASSESSEE THE TRIBUNAL, AFTER TAKING INTO CONSIDERATION PROVISION S OF EXPLANATION (5) 6 SECTION 32 AND EXPLANATION 6 TO 43 (6) AND VARIOUS OTHER JUDICIAL DECISIONS HAS HELD THAT NOTIONAL DEPRECIATION TO BE DEDUCTED OUT OF ACTUAL COST TO WORK OUT WDP AS ON 1.4.2002 , BEING THE FIRST YEAR OF FI LLING OF RETURN OF INCOME FOR THAT PREVIOUS YEARS . THUS, THE EXCESS DEPRECIA TION CLAIMED BY THE ASSESSEE ON THE BASIS OF ACTUAL COST AND NOT CORREC T VALUE OF WDP AS ON 1.4.05, IN OUR OPINION, HAS RIGHTLY BEEN DISALLOWED . THUS, THIS GROUND OF THE ASSESSEE IS DISMISSED. 11. AS REGARD , THE ISSUE RAISED IN GROUND NO. 7, T HE LD COUNSEL SUBMITTED THAT THIS WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 24.7.2009 (SUPRA) DREW OUR ATTEN TION PARA 3 AND 4 ON PAGE 3 AND 4 OF THE ORDER WHEREIN THE TRIBUNAL HAD DISMI SSED THE GROUND RAISED BY THE REVENUE IN RESPECT OF THIS ISSUE. THE LD DR COU LD NOT CONTROVERT CLAIMS MADE BY THE ASSESSEE. 12. WE HAVE CONSIDERED THE SUBMISSION MADE BY BOTH THE PARTIES AND MATERIAL ON RECORD. THE TRIBUNAL, IN THE ORDER CITE D BY THE ASSESSEE, ON THIS ISSUE, HAS HELD AS UNDER:- ON CONSIDERATION OF ABOVE FACTS, WE ARE OF THE VIEW THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY EARLIER ORD ER OF THE TRIBUNAL IN THE CASE OF KRISHI UPAJ MANDI SAMITI, BURHANPUR (SUPRA) . SINCE ACTUAL PAYMENTS ARE REMITTED TO THE MANDI BOARD AS PER THE DETAILS FILED ON RECORD BEFORE LD. CIT(A), THEREFORE, ASSESSEE IS EN TITLED FOR DEDUCTION OF 7 THE AFORESAID AMOUNT. LD. CIT(A) WAS, THEREFORE, JU STIFIED IN DELETING THE ADDITION OF THAT AMOUNT. WE, ACCORDINGLY, DO NOT FI ND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. SAME IS, ACCORDING LY, DISMISSED. 13. THE FACTS, BEING IDENTICAL, HENCE, RESPECTFULLY FOLLOWING THIS VIEW OF THE COORDINATE BENCH OF THE TRIBUNAL, WE ALLOW THIS GROUND OF ASSESSEE. 14. AS REGARD ISSUE RAISED IN GROUND NO. 8 & 9, THE LD COUNSEL SUBMITTED THAT THIS ISSUE WAS REQUIRES TO BE SET ASIDE TO THE FILE OF AO IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF KRISHI UPAJ MANDI SAMITI VS. ITO AS REPORTED IN 12ITJ 12 AND DREW OUT ATTENTION TO PARA 3 TO 5 AT PAGES 18 19,20,21 OF THE SAID ORDER. THE LD DR COULD NOT CO NTROVERT THE CLAIMS MADE BY THE ASSESSEE, HOWEVER, HE PREFERRED RELY ON THE ORDER OF LD CIT (A). 15. WE HAVE CONSIDERED SUBMISSION MADE BY BOTH THE PARTIES AND MATERIAL ON RECORD. WE FIND THAT SIMILAR ISSUE AROSE BEFORE THE TRIBUNAL AND THE TRIBUNAL AFTER CONSIDERING VARIOUS DECISIONS RESTOR ED THE ISSUE TO THE FILE OF AO BY GIVING CERTAIN DIRECTIONS. THE RELEVANT FINDI NGS OF THE TRIBUNAL ARE REPRODUCED AS UNDER: WE HAVE CONSIDERED RIVALS SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT ASSE SSEE CLAIMED THE STATUS OF LOCAL AUTHORITY BEFORE THE AO AT THE TIME OF THE ASSESSMENT BUT IT WAS NOT GRANTED BECAUSE OF INSERT ION OF EXPLANATION TO SEC. 10(20) OF THE IT ACT THROUGH WHI CH ONLY SPECIFIED INSTITUTIONS WERE HELD TO BE LOCAL AUTHOR ITY. THE ASSESSEE SAMITI WAS OUTSIDE THE PURVIEW OF THIS SEC TION. THE 8 ASSESSEE HOWEVER APPLIED FOR REGISTRATION U/S 12A O F THE IT ACT AND CLAIMED IT TO BE ESTABLISHED FOR CHARITABLE PUR POSES. THE LD. CIT, INDORE GRANTED THE REGISTRATION TO THE ASSESSE E INSTITUTION W.E.F. THE DATE OF ITS CREATION I.E. 1980 AS PER DI RECTION OF THE TRIBUNAL. THE REGISTRATION CERTIFICATE U/S 12A WAS GRANTED WHEN THE APPEAL OF THE ASSESSEE WAS PENDING BEFORE THE L D. CIT(A). THERE IS NO BAR UNDER THE ACT TO CLAIM RELIEF UNDER A PARTICULAR SECTION IF THE ASSESSEE WAS ENTITLED FOR THE SAME E VEN IF THE PROVISIONS OF SEC. 10(20) WERE NOT APPLICABLE IN TH E CASE OF THE ASSESSEE. LD. CIT(A) WAS THEREFORE, NOT JUSTIFIED I N REJECTING THE CLAIM OF THE ASSESSEE ON THAT REASON. ONCE THE REGI STRATION IS GRANTED TO THE ASSESSEE U/S 12AA OF THE IT ACT, THE LD. CIT(A) SHOULD REFRAIN HIMSELF FROM COMMENTING ON SUCH MATT ER PARTICULARLY WHEN IT WAS GRANTED IN PURSUANCE OF TH E ORDER OF THE TRIBUNAL. SINCE THE REGISTRATION WAS GRANTED AFTER THE ASSESSMENT PROCEEDINGS WERE OVER, THEREFORE, THE SUBSEQUENT EV ENT AND ORDERS OF APPELLATE AUTHORITIES SHOULD HAVE BEEN TA KEN INTO CONSIDERATION BY THE AUTHORITIES BELOW IN ORDER TO DO JUSTICE TO THE PARTIES. THE FILING OF REVISED RETURN BELATEDLY ON SUCH AN EVENT WOULD BE OF NO CONSEQUENCES BECAUSE THE CASE OF THE ASSESSEE SHOULD HAVE BEEN CONSIDERED IN THE LIGHT O F THE PROVISION OF SEC. 11, 12 & 13 OF THE IT ACT, ONCE REGISTRATIO N IS GRANTED TO THE ASSESSEE U/S 12AA OF THE IT ACT. WE MAY ALSO AD D HERE THAT NEW SEC. 10(26AAB) HAVE BEEN INSERTED IN THE ACT W. E.F. 1.4.9 THROUGH WHICH INCOME OF AGRICULTURAL PRODUCE MARKET COMMITTEE OR BOARD CONSTITUTED UNDER ANY LAW WOULD NOT FORM P ART OF THE TOTAL INCOME. LD. CIT(A) FORGOT TO NOTE THAT ASSESS EE IS NOT A TRUST THEREFORE, THE CREATION THROUGH THE SETTLER ETC. WO ULD NOT BE RELEVANT TO THE CASE OF THE ASSESSEE. LD. COUNSEL F OR ASSESSEE RIGHTLY CONTENDED THAT THE PROVISIONS OF SEC. 12A/1 2AA ARE NOT ONLY APPLICABLE TO THE TRUST BUT ALSO TO THE INSTIT UTIONS. THE 9 ASSESSEE IS THE INSTITUTION WHICH IS CREATED BY THE SPECIAL ACT AND WAS TO PERFORM CERTAIN DUTIES FOR AVOIDING EXPLOITAT ION OF THE FARMERS/AGRICULTURALISTS AND TO PROVIDE THEM THE FA CILITIES FOR THE BETTERMENT OF THE PEOPLE AT LARGE. LD. COUNSEL FOR ASSESSEE RIGHTLY CONTENDED THAT THE ASSESSEE COMMITTEE BEING THE INSTITUTION HELD SEVERAL PROPERTIES IN ORDER TO ACH IEVE ITS OBJECTIVES PROVIDED UNDER THE ACT THEREFORE, THE IN COME DERIVED FROM THE PROPERTY HELD UNDER TRUST FOR CHARITABLE PURPOSE WOULD BE EXEMPT AND WOULD NOT FORM PART OF THE TOTAL INCOM E AS PER SEC. 11 OF THE IT ACT AS CONTAINED IN CHAPTER III O F THE IT ACT. THE LANGUAGE USED IN THE AFORESAID SEC. IS THAT THE INC OME DERIVED FROM PROPERTY HELD UNDER TRUST. IT WOULD MEAN THAT THE PROPERTIES ARE HELD UNDER TRUST BUT WOULD NOT MEAN THAT THE TR UST ONLY SHOULD HELD PROPERTIES. LD. CIT(A) ALSO FAILED TO N OTE THE PROPERTY FROM WHICH THE INCOME IS DERIVED SHOULD BE HELD UND ER TRUST OR OTHER LEGAL OBLIGATION WHICH IS EXPLAINED IN EXPLANA TION I TO SEC. 13 OF THE IT ACT WHICH PROVIDES FOR THE PURPOSE OF SECTIONS 11, 12, 12A & 13 TRUST INCLUDES ANY OTHER LEGAL OBLIG ATION. ADMITTEDLY, ASSESSEE IS CREATED BY THE MP KRISHI UP AJ MANDI ADHINIYAM TO PERFORM CERTAIN LEGAL OBLIGATIONS TO A VOID EXPLOITATION OF THE FARMERS. THE PROPERTY SHOULD BE SO HELD FOR CHARITABLE PURPOSES WHICH ENURE FOR BENEFIT OF THE PUBLIC AND NO PART OF THE INCOME OR PROPERTY OF THE ASSESSEE SHOU LD BE USED OR APPLIED DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF P ERSONS PROHIBITED BY SEC. 13(1)(C)(II), 2 & 3 EXCEPT TO THE EXTENT PER MITTED UNDER THE LAW. THE FINDINGS OF THE LD. CIT(A) THEREFORE, CANNOT BE SUSTAINED IN LAW. THE DECISIONS RELIED UPON BY LD. DR WOULD NOT SUPPORT THE CASE OF THE REVENUE AND THE FINDINGS OF THE LD. CIT(A). CONSIDERING THE FACTS AND CIRCUMSTANCES NOTED ABOVE , AND THE FACT THAT THE CLAIM OF THE ASSESSEE U/S 11 COULD NO T BE EXAMINED BY THE AO AT THE ASSESSMENT STAGE AS THE REGISTRATI ON WAS GRANTED 10 SUBSEQUENTLY BY THE CIT, INDORE AS PER DIRECTION OF THE TRIBUNAL THEREFORE, WE ARE OF THE VIEW THAT THE MATTER REQUI RES RECONSIDERATION AT THE LEVEL OF THE AO BECAUSE AS P ER SEC.11(4), THE AO SHALL HAVE POWER TO DETERMINE SUCH ISSUE. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON TH IS ISSUE AND REMAND THIS ISSUE TO THE FILE OF THE AO WITH DIRECT ION TO DECIDE THIS ISSUE OF APPLICABILITY OF PROVISIONS OF SEC. 1 1 TO 13 OF THE IT ACT IN THE LIGHT OF THE REGISTRATION GRANTED U/S 12 A/12AA OF THE IT ACT AND OBSERVATIONS GIVEN IN THIS ORDER BY GIVING REASONABLE SUFFICIENT OPPORTUNITY TO THE ASSESSEE. GROUND NO.1 OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 16. SINCE THE FACTS ARE IDENTICAL AND THERE IS NO C HANGE IN LAW, HENCE, WE RESTORE THIS ISSUE TO THE FILE OF AO FOR ADJUDICATI ON THEREOF IN A SIMILAR MANNER. THUS, THESE GROUNDS OF THE ASSESSEE STAND A LLOWED FOR STATISTICAL PURPOSES. 17. AS REGARD THE ISSUE RAISED IN GROUND NO10, THE LD COUNSEL SUBMITTED THAT THIS ISSUE WAS ALSO COVERED IN FAVOUR OF THE A SSESSEE BY THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 24.7.09 CITED BY THE AS SESSEE HERE IN BEFORE AND DREW OUR ATTENTION TO PARA 17 TO 19 AT PAGES 9 TO 1 2 OF SAID ORDER. THE LD DR COULD NOT CONTROVERT THE CLAIMS MADE BY THE ASSESSE E, HOWEVER, HE PREFERRED TO RELY ON THE ORDER OF THE CIT. 18. WE FIND THAT IT IS ALSO A CASE OF ENHANCEMENT BY CIT (A) OF INCOME ON ACCOUNT OF DEPRECIATION , HENCE, THE RATIO OF TH E SAID DECISION OF THE 11 TRIBUNAL WOULD BE RELEVANT. ACCORDINGLY, WE REPRODU CE RELEVANT FINDINGS OF THE SAID ORDER OF THE TRIBUNAL AS UNDER: ON CONSIDERATION OF THE SUBMISSIONS OF THE LD. DR A ND MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE ORDER OF THE AO WAS IN ACCORDANCE WITH LAW AND AO HAS CORRECTLY ALLOWED PART DEPRECIA TION TO THE ASSESSEE. THE FINDINGS OF THE AO ARE FORTIFIED BY THE ORDER O F THE TRIBUNAL IN THE CASE OF ACIT VS. M.P. MADHYAM IN ITA NO.712/IND/200 7 DATED 18 TH JULY, 2008 IN WHICH BY CONSIDERING THE DECISION OF HONBL E MP HIGH COURT IN THE CASE OF RAIPUR PALLOTTINE SOCIETY, 180 ITR 579, IT WAS HELD THAT THE CHARITABLE INSTITUTIONS/TRUSTS ARE ENTITLED TO DEPR ECIATION IN RESPECT OF THE ASSETS OWN BY IT. IN THE CASE OF KRISHI UPAJ MANDI SAMITI, BURHANPUR (SUPRA), THE TRIBUNAL CONSIDERING ITS EARLIER DECIS ION IN THE LIGHT OF APPLICABILITY OF EXPLANATION 5 TO SEC. 32(1)(II) OF THE ACT ALSO DECIDED THE ISSUE ON THE SAME ANALOGY ON WHICH THE AO HAS TAKEN THE VIEW IN THE MATTER. THUS, THE LD. CIT(A) WAS NOT JUSTIFIED IN E NHANCING THE ADDITION ON ACCOUNT OF DEPRECIATION. THE ENHANCEMENT MADE BY THE LD. CIT(A) IS UNJUSTIFIED. THE ADDITION MADE BY THE AO ON ACCOUNT OF DEPRECIATION IS JUSTIFIED. WE, ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT(A) IN ENHANCING THE DEPRECIATION AND RESTORE THE ORDER OF THE AO IN MAKING THE ADDITION. AS A RESULT, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED PARTLY. 12 19. THUS, RESPECTFULLY FOLLOWING THE ABOVE RATIO, W E HOLD THAT THE LD CIT (A) WAS NOT JUSTIFIED IN ENHANCING THE INCOME BY WI THDRAWING THE DEPRECIATION. THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED. 20. AS REGARD THE ISSUE RAISED IN GROUND NO 11, THE LD. COUNSEL SUBMITTED THAT THIS ISSUE WAS SET ASIDE BY THE TRIBUNAL TO TH E FILE OF AO IN THE CASE AS REPORTED IN 12 ITJ 12 AND CONSOLIDATED ORDER DATED 24.7.09 , HENCE, THE MATTER COULD BE RESTORED BACK TO THE FILE OF AO TO RECONSIDER THIS ISSUE AS PER RELEVANT RULE OF MANDI ACT. 21. WE FIND THAT IN THE DECISION CITED BY THE ASSES SEE, THIS ISSUE HAS BEEN RESTORED TO THE FILE OF THE AO FOR ADJUDICATION THE REOF AFRESH AS PER THE RELEVANT RULES OF MANDI ACT. WE ALSO RESTORE THIS I SSUE TO THE FILE OF AO ON SIMILAR LINES. THUS THIS, GROUND OF ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 22. IN THE RESULT, APPEAL FILE BY THE ASSESSEE STAN DS PARTLY ALLOWED IN TERMS INDICATED ABOVE. 23. ORDER PRONOUNCED IN THE OPEN COURT ON 16.11.09 SD/- SD/- (JOGINDER SINGH) (V.K.GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : *KONGE* 13