SANTOKBHA DURLABHJI TRUST, Jaipur V. ITO, Jaipur

ITA 241/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87568 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 31-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH OJHA JCIT DR DHK
• Assessee Lawyers: G G MUNDRA
• Keywords: Capital asset; Depreciation; Charitable institution; Maximum Marginal Rate; Rule of consistency; Earning of tax free income; Capital expenditure
• Section: 12; 10; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NOS. 241 & 242/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05 & 2009-10 M/S. SANTOKBHA DURLABHJI TRUST, 139, JOHRI BAZAR, JAIPUR CUKE VS. THE ITO WARD- 1(1) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AADFA 7665 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NOS. 254 & 255/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05 & 2009-10 THE ACIT CIRCLE- 1 JAIPUR CUKE VS. M/S. SANTOKBHA DURLABHJI TRUST, 139, JOHRI BAZAR, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AADFA 7665N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G.G. MUNDRA, C.A. JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJESH OJHA, JCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24/02/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /03/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS A SET OF CROSS APPEALS FILED AGAINST TWO D IFFERENT ORDERS OF LD. CIT(A)1, JAIPUR DATED 31-10-2014 FOR THE ASSE SSMENT YEAR 2004-05 AND 2009-10 RESPECTIVELY. THE GROUNDS RAISED ARE NA RRATED AS UNDER:- ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 2 GROUNDS RAISED BY THE ASSESSEE FOR 2004-05 1. THAT THE LD. CIT(A) IS WRONG, UNJUST AND HAS E RRED IN LAW IN HOLDING THE PROCEEDINGS U/S 147/148OF I.T. ACT, 196 1 INITIATED IN THE CASE OF ASSESSEE TRUST BY AO ARE NOT WRONG AND BAD IN LAW. 2.1 THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THIS GROUND AT THE TIME OF HEARING. HENCE, IT IS DISMISSED BEING NOT PRESSE D. REST OF THE GROUNDS FOR AYS 2004-05 AND 2009-10 ARE COMMON ASSAILING TH E DENIAL OF APPLICATION OF BENEFITS U/S 11 AND 12 OF I T ACT TO THIS CHARITABLE HOSPITAL ON THE PURPORTED VIOLATION OF SEC. 13(1)(D), SAME ARE AS UNDER: 1. THAT LD. CIT(A) IS WRONG, UNJUST AND HAS ERRED I N LAW IN HOLDING THAT PROVISIONS OF SECTION 13(1)(D) OF I.T. ACT, 1961 ARE APPLICABLE IN THE CASE OF ASSESSEE TRUST ON ACCOUNT OF HOLDING IN THE YEAR UNDER CONSIDERATION, THE EQUITY SHARES OF TISCO COMPANY WHICH WERE RECEIVED BY ASSESSEE TRUST AS DONATION T OWARDS CORPUS OF TRUST ON 25-05-1982 AND FURTHER HOLDING THAT PRO VISIONS OF SECTION 131)(D)(III) OF I.T. ACT, 1961ARE APPLICABL E TO THE TRUST AND ACCORDING TO THAT A TRUST CANNOT HOLD INELIGIBLE SH ARES, WHETHER DONATED OR PURCHASED FROM ITS OWN FUNDS AND THEREFO RE, THE AO HAS RIGHTLY DENIED EXEMPTION U/S 11 & 12 OF I.T. ACT, 1 961 TO THE ASSESSEE TRUST. 2. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT FO RMS AND MODES OF INVESTMENT OR DEPOSIT OF MONEY IN ASSETS L ISTED IN SECTION 11(5) OF I.T. ACT, 1961 ARE FOR MONEY REFERRED TO I N CLAUSE (B) OF SUB-SECTION (2) OF I.T. ACT, 1961 I.E. MONEY ACCUM ULATED OR SET APART AS PER PROVISIONS OF SUB-SECTION (2) OF 11 OF I.T. ACT, 1961 AND SECTION 13(1)(D) APPLIES TO ONLY IN INVESTMENT OF SUCH MONEY IN CONTRAVENTION TO PROVISIONS OF SECTION 11(5) AND NO T ON SHARES RECEIVED AS DONATION TOWARDS CORPUS OF TRUST. 3. THAT LD. CIT(A) FAILED TO APPRECIATE THAT THE FU NDS OF THE APPELLANT WERE NEVER INVESTED IN ORIGINAL TISCO SHA RES OR IN BONUS SHARES THEREON AND RIGHTS SHARES OF TISCO WAS RECEIVED BECAUSE OF ORIGINAL HOLDING OF SHARES AND THE SAME WERE ACQUIRED ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 3 FROM THE SALE PROCEEDS OF ORIGINAL SHARES/BONUS SHA RES AND THUS NO FUNDS OF TRUST WAS INVESTED IN SHARES OF TISCO IN C ONTRAVENTION OF SECTION 11(5) OF I.T. ACT 1961 AND THEREFORE, SECTI ON 13(1)(D) / 13(1)(D)(III) ARE NOT ATTRACTED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) SHOULD HAVE HELD THAT ASSESSEE TRUST IS ENTI TLED FOR EXEMPTION U/S 11 & 12 OF I.T. ACT, 1961 ON THE PRIN CIPLE OF RULE OF CONSISTENCY. 2.2 COMMON GROUNDS RAISED BY THE REVENUE IN ASSESSM ENT YEARS 2004- 05 AND 2009-10 ARE AS UNDER:- (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEPRECIATION OF RS. 2,58,4,558/- (A.Y. 2004-05) AND RS. 3,29,58,149/- (A.Y. 2005-06) EVEN ON THE VA LUE OF SUCH ASSETS, WHICH HAVE BEEN ALLOWED AS APPLICABLE OF INCOME IN EARLIER YEARS. (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) OUGHT TO HAVE DIRECTED THE AO TO ALLOW DEPRECIATION ONLY ON VALUE OF SUCH ASSETS WHICH HAVE NOT BEEN ACQUIRED THROUGH APPLICATION OF INCOME IN EARLIER YEARS. 2.3 APROPOS THE CONTESTED GROUNDS OF THE ASSESSEE; I.E. REFUSING THE BENEFITS OF EXEMPTION U/S 11 AND 12 OF THE ACT ON T HE ALLEGED ISSUE OF VIOLATION OF SEC. 13(1)(D) IN RESPECT OF TISCO SHA RES; IT IS CLAIMED THAT SAME STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY TH IS BENCH ORDER DATED 5-11-2014 IN ITA NO. 169/JP/2012 WHEREIN THE ITAT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING OBSERV ATIONS. ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 4 4.7 WE FIND MERIT IN THE CONTENTION OF LD. COUNSE L FOR THE ASSESSE THAT THE PROPOSITION OF APPORTIONMENT OF IN COME ELIGIBLE FOR BENEFITS U/S 11 AND 12 BETWEEN EXEMPTED OR NON EXEM PTED INCOME IS UPHELD BY HONBLE SUPREME COURT IN DAWOODI BOHRA TRUST (SUPRA). THUS HONBLE SUPREME COURT HAS RATIONALLY DEALT WITH THIS SITUATION AND INSTEAD OF DENYING THE ENTIRE BENE FITS OF SEC 11 AND 12 EVEN FOR A TECHNICAL, VENIAL OR SMALLER BREACH A SOUND AND REASONABLE PROPOSITION HAS BEEN LAID DOWN. IN VIEW OF THE FOREGOINGS WE HAVE NO HESITATION TO HOLD THAT THE E NTIRE BENEFITS OF SEC. 11 AND 12 CANNOT BE FORFEITED FROM THE TRUST A ND THE CORRESPONDING DIVIDEND INCOME FROM TISCO SHARES WIL L NOT BE ELIGIBLE FOR BENEFITS OF SEC. 11 AND 12. 5.1 NOW WE ADVERT TO THE ASSESSEES CONTENTION THAT INCOME NOT ELIGIBLE FOR BENEFITS OF SEC 11 AND 12 I S TO BE SUBJECTED TO OTHER PROVISIONS OF THE IT ACT AND THEREAFTER TH E TAXABLE INCOME IS TO BE SUBJECTED TO MAXIMUM MARGINAL RATE. WE FIN D FORCE IN THIS ARGUMENT. AS PER THE SCHEME OF THE ACT, FIRST THE T RUST INCOME IS TO BE WORKED OUT, THEREAFTER, BENEFITS OF PROVISION OF SECS. 11 AND 12 ARE TO BE APPLIED. REMAINDER INCOME IS THAN TO BE T REATED WITH REGULAR PROVISIONS OF THE ACT AND RESULTANT INCOME I.E. TAXABLE INCOME IS TO BE SUBJECTED TO MAXIMUM MARGINAL RATES . APPLYING THIS SCHEME OF THE I T ACT TO ASSESSEE CASE THE NO N-BENEFICIAL INCOME IS IN THE FORM OF DIVIDEND INCOME FROM TISCO SHARES. THERE IS NO DISPUTE BETWEEN THE PARTIES ABOUT THE N ATURE OF INCOME BEING DIVIDEND AND QUANTUM THEREOF. IN THE BACKDROP OF THESE FACTS THE DIVIDEND INCOME BEING EXEMPT FROM INCOME BY EXP RESS PROVISIONS OF SEC 10(34), THE DIVIDEND INCOME IS EX EMPT FROM INCOME TAX. THIS BEING SO, IN THE RESULT THERE REMA INS NO TAX LIABILITY ON THE TRUST. CONSEQUENTLY WE HOLD ACCORD INGLY AND DELETE THE ADDITIONS IN THIS BEHALF. OUR JUDGMENT IS FORTI FIED BY THE JUDGMENTS CITED BY THE ASSESSEES COUNSEL (SUPRA) W HICH DEAL WITH THE ISSUE BEFORE US WITH PRECISION AND WHICH WE RES PECTFULLY FOLLOW. APROPOS THE CASE LAWS CITED BY LD DR THEY HAVE BE EN CONSIDERED BY ABOVE JUDICIAL PRECEDENTS TO ARRIVE AT THE ABOVE CONCLUSION, WHICH WE ARE RESPECTFULLY FOLLOWING. WE MAY HASTEN TO ADD THAT EVEN DEPARTMENT HAS NOT BEEN TAKING ANY PARTICULAR STAND AND ALLOWING THE BENEFITS OF SEC 11 AND 12 IN SOME OF T HE YEARS, THEN RETHINKING AND REFUSING THE BENEFITS BY REOPENING T HE ASSESSMENTS. THUS EVEN THE DEPARTMENT HAS ITS OWN SHARE OF INTER PRETATIONS, ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 5 LEADING TO REPETITIVE PROCEEDINGS. IN CONSIDERATION OF ALL THE FOREGOING, WE ALLOW THE APPEAL FILED BY THE ASSESSE E. 2.4 APROPOS REVENUES APPEAL, LD. COUNSEL FOR THE A SSESSEE CONTENDS THAT THE SAME ISSUE ABOUT DEPRECIATION AROSE IN AY 2008-09 AND WAS DISALLOWED BY THE AO. IN FIRST APPEAL DEPRECIATION WAS ALLOWED BY THE LD. CIT(A). THE DEPARTMENT ACCEPTED THE SAME AND DID NO T PREFER THE APPEAL AGAINST THE LD. CIT(A)S ORDER FOR ASSESSMENT YEAR 2008-09. THUS HAVING ACCEPTED THIS PROPOSITION IN ASSESSMENT YEAR 2008-0 9, THERE IS NO FORCE IN REVENUES STAND. 2.5 BESIDES BY A CATENA OF JUDGMENTS OF ITAT AND HO N'BLE HIGH COURT IT IS BY NOW WELL SETTLED THAT CHARITABLE INSTITUTI ONS CAN CLAIM DEPRECIATION ON ASSETS ACQUIRED OUT OF APPLICATION OF TRUST INCO ME, IRRESPECTIVE OF THE FACTS THAT COST OF PURCHASE IS OUT OF APPLICATION O F INCOME EXEMPT U/S 11 AND 12 OF THE ACT. FOLLOWING ARE THE CASE LAWS RELI ED:- A. IN ITO. V. S.S. JAIN SUBODH SHIKSHA SAMITI IN [ITA NO. 250/JP/2007 ] IT WAS HELD: WHERE THE SOCIETY HAD CLAIMED DEPRECIATION EVEN WHE N THE COST OF THE ASSETS HAVE BEEN TREATED AS APPLIED, IT SHALL B E TREATED AS APPLIED TOWARDS THE INCOME OF THE SOCIETY. THE WORD APPLIED USED IN SECTION 11 SHOULD BE CONSTRUED WIDELY AND N OT IN A NARROW SENSE AS HELD IN : B. IN ACIT VS. BHOPAL CAMPION SCHOOL SOCIETY [2011] 14 TAXMANN.COM 59 (INDORE ) IT WAS HELD: EVEN OTHERWISE, DEPRECIATION ALLOWANCE IS A CONCESS ION GRANTED BY THE STATE IN THE COMPUTATION OF INCOME BASED ON MANY FACTORS RELEVANT TO THE WHOLESOME FISCAL ADMINISTRATION. D EPRECIATION REPRESENTS THE DIMINUTION IN THE VALUE OF AN ASSET WHEN APPLIED TO ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 6 THE PURPOSE OF MAKING PROFIT OR GAIN. DEPRECIATION IS THUS RELATED TO AN ASSET AND IS A NOTIONAL LOSS AS AGAINST ACTUA L LOSS IN THE SENSE OF OUTGOING OF A BUSINESS, MEANING THEREBY, D EPRECIATION IS A STATUTORY ALLOWANCE NOT CONFINED EXPRESSLY TO DIM INUTION IN VALUE OF ASSET BY REASON OF WEAR AND TEAR ONLY. A C HARITABLE TRUST IS ENTITLED TO DEPRECIATION IN RESPECT OF ASSET HEL D BY IT. OUR VIEW IS FORTIFIED BY THE DECISION FROM HON'BLEBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT V. RAIPUR PALLOTTINE SOCIETY [1990] 50 TAXMAN 233 (MP). C. IN CIT V. INSTITUTE OF BANKING PERSONNEL SELECTION (IBPS) [2003] 131 TAXMAN 386 (BOM.) IT WAS HELD : SECTION 11 OF THE INCOME-TAX ACT, 1961 CHARITABLE OR RELIGIOUS TRUST EXEMPTION OF INCOME FROM PROPERTY HELD UNDE R ASSESSMENT YEAR 1984-85 WHETHER ASSESSEE TRUST CO ULD CLAIM DEPRECIATION ON ASSETS, COST OF WHICH HAD BEEN FULL Y ALLOWED AS APPLICATION OF INCOME UNDER SECTION 11 IN PAST YEAR S HELD, YES WHETHER ASSESSEE COULD CLAIM DEPRECIATION ON ASSE TS WHICH IT RECEIVED ON ACCOUNT OF TRANSFER AND COST OF ACQUIRI NG OF WHICH WAS NOT INCURRED BY ASSESSEE HELD, YES WHETHER ASSESSEE COLD CARRY FORWARD DEFICIT OF EARLIER YEARS AND SET IT O FF AGAINST SURPLUS OF SUBSEQUENT YEARS HELD, YES. D. IN CIT VS. SETH MANILAL RANCHOD DAS VISHRAM BHAWAN TRUST [198 ITR 598 (GUJ)] IT WAS HELD: THE AMOUNT OF DEPRECIATION DEBITED TO THE ACCOUNTS OF THE CHARITABLE INSTITUTIONS HAS TO BE DEDUCTED TO ARRIV E AT THE INCOME AVAILABLE FOR APPLICATION TO CHARITABLE AND RELIGIO US PURPOSES. E. IN CIT VS. SOCIETY OF SISTER ST. ANNE 146 ITR 28 HAD ALLOWED DEPRECIATION IN ADDITION TO CAPITAL EXPENDITURE. F. IN POORAN MAL PHOOLA DEVI MEMORIAL TRUST VS. ITO (J P ITAT) IT WAS HELD THAT DEPRECIATION IS ALLOWABLE AS APPLICATION OF INCOME. G. LATEST JUDGMENT IN GKR CHARITIES V. DY. DIT (EXEMPT IONS) [2011] 46 SOT 23 IS ALSO OF THE VIEW THAT BENEFIT OF DEPRECIATION IS DIFFERENT FROM CLAIM OF CAPITAL EXPENDITURE AND BOTH ARE ALLOWABLE DISTINCTIVELY. H. P & H HIGH COURT AGAIN HAS REITERATED THE SIMILAR S TAND IN ITS LATEST JUDGMENT IN CIT V. MARKET COMMITTEE [2011] 3 30 ITR 16. ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 7 IT IS FURTHER PLEADED THAT THE LEGAL POSITION IN BE HALF OF SUCH DEPRECIATION HAS BEEN AMENDED W.E.F. 01-04-2015 BY INSERTION OF SECTION 11(6) AFTER SECTION 1(5) OF I.T. ACT , 1961 BY FINANCE (NO.2) ACT, 2014 AS UNDER:- (6) IN THIS SECTION WHERE ANY INCOME IS REQUIRED TO BE APPLIED OR ACCUMULATED OR SET APART FOR APPLICATION , THEN, FOR SUCH PURPOSES THE INCOME SHALL BE DETERMINED WITHOU T ANY DEDUCTION OR ALLOWANCE BY WAY OF DEPRECIATION OR OT HERWISE IN RESPECT OF ANY ASSET, ACQUISITION OF WHICH HAS BEEN CLAIMED AS AN APPLICATION OF INCOME UNDER THIS SECTION IN THE SAM E OR ANY OTHER PREVIOUS YEAR. THE MEMORANDUM EXPLAINING THE AMENDMENT OF ABOVE PR OVISION APPENDED WITH FINANCE (NO. 2) ACT, 2014 EXPLAINS THE SAME AS UNDER: - THE SECOND ISSUE WHICH HAS ARISEN IS THAT THE EXIST ING SCHEME OF SECTION 11 AS WELL AS SECTION 10 (23C) PR OVIDES EXEMPTION IN RESPECT OF INCOME WHEN IT IS APPLIED T O ACQUIRE A CAPITAL ASSET. SUBSEQUENTLY, WHILE COMPUTING THE IN COME FOR PURPOSES OF THESE SECTIONS, NOTIONAL DEDUCTION BY W AY OF DEPRECIATION ETC. IS CLAIMED AND SUCH AMOUNT OF NOT IONAL DEDUCTION REMAINS TO BE APPLIED FOR CHARITABLE PURP OSE. THEREFORE, DOUBLE BENEFIT IS CLAIMED BY THE TRUSTS AND INSTITUTIONS UNDER THE EXISTING LAW. THE PROVISIONS NEED TO BE R ATIONALIZED TO ENSURE THAT DOUBLE BENEFIT IS NOT CLAIMED AND SUCH NOTIONAL AMOUNT DOES NOT GET EXCLUDED FROM THE CONDITION OF APPLICATION OF INCOME FOR CHARITABLE PURPOSE. IN VIEW OF THE ABOVE, IT IS ALSO PROPOSED TO AMEND THE ACT TO PROVIDE THAT UNDER SECTION 11 AND 10 (23C), INCO ME FOR THE PURPOSES OF APPLICATION SHALL BE DETERMINED WITHOUT ANY DEDUCTION OR ALLOWANCE BY WAY OF DEPRECIATION OR OT HERWISE IN RESPECT OF ANY ASSET, ACQUISITION OF WHICH HAS BEEN CLAIMED AS AN APPLICATION OF INCOME UNDER THESE SECTIONS IN THE S AME OR ANY OTHER PREVIOUS YEAR. THESE AMENDMENTS WILL TAKE EFFECT FROM 1 ST APRIL, 2015 AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASSESSM ENT YEAR 2015- 16 AND SUBSEQUENT ASSESSMENT YEARS. ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 8 THUS THE CHANGE IN LEGAL POSITION ABOUT ELIGIBILITY OF DEPRECIATION QUA ASSETS ACQUIRED BY MEETING THE COST FROM APPLICATIO N OF EXEMPT INCOME OF THE CHARITABLE INSTITUTION IS EFFECTIVE WITH PROSPE CTIVE EFFECTIVE, SPECIFICALLY FROM 01-04-2015. THUS THE LEGISLATIVE AMENDMENT ALSO SUPPORTS THE RATIO OF JUDICIAL PRECEDENTS CITED AB OVE, ALLOWING SUCH DEPRECIATION. 2.6 THE LD. DR IS HEARD 2.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AS FAR AS THE ASSESSEE'S APPEA L IS CONCERNED, THIS BENCH OF ITAT IN ASSESSEE'S OWN CASE FOR THE ASSESS MENT YEAR 2008-09 HAS HELD THAT THE ASSESSEE CANNOT BE DENIED EXEMPTI ON U/S 11 AND 12 OF THE ACT BECAUSE OF ITS INVESTMENT IN CONTINUING IN TISCO SHARES. IT HAS BEEN FURTHER HELD THAT DIVIDEND INCOME FROM TISCO S HARES IS EXEMPT U/S 10(34) OF THE I T ACT. THEREFORE, THE TRUST IS ELI GIBLE FOR BENEFITS OF SEC 11 AND 12 OF THE I T ACT AND THERE WILL BE NO ADDITION IN TAXABLE INCOME AS DIVIDEND INCOME IS EXEMPT. THUS RESPECTFULLY FOLLOW ING OUR OWN DECISION IN THE CASE OF THE ASSESSEE, THE GROUNDS RAISED BY THE ASSESSEES APPEALS ARE ALLOWED. 2.8 APROPOS REVENUES APPEALS ALSO, WE FIND MERIT I N THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE CHANGE IN LAW HAS BEEN ITA NO.241/JP/2014 M/S. SANTOKBHA DURLABHJI TRUST VS. ITO WARD- 1(1), JAIPUR . 9 SPECIFICALLY BROUGHT WITH PROSPECTIVE EFFECT FROM 0 1-04-2015 AND IS NOT RETROSPECTIVE. THUS THE OLD POSITION SETTLED BY JUD GMENT CITED (SUPRA) IN THIS BEHALF I.E. DEPRECIATION REMAINS INTACT. IN V IEW THEREOF, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) ON THIS IS SUE ALLOWING DEPRECIATION. HENCE, THE APPEALS OF THE REVENUE ARE DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A Y 2004-05 IS PARTLY ALLOWED, FOR AY 2009-10 IS ALLOWED AND THAT OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /03/2 015. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 TH MARCH, 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. SANTOKBHA DURLABHJI TRUST, JAI PUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD- 1(1), JAIPUR / ACIT CIRCLE- 1, JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), JAIPUR 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.241/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR