THE BOMBAY HOCKEY ASSOCIATION LIMITED, MUMBAI V. THE INCOME-TAX OFFICER EXEM. WARD 2(4), MUMBAI, MUMBAI

ITA 2456/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0610 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-10-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 12-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 12A; 10B; 250

Judgement Text

P a g e | 1 ITA No.2456/Mum/2023 The Bombay Hockey Associatin Ltd. Vs. ITO, Exemption Ward 2(4) IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA No.2456/Mum/2023 (A.Y. 2016-17) The Bombay Hockey Association Ltd. Mahendra Stadium D Road, churchgate Mumbai – 400 020 Vs. ITO Exemption Ward 2(4) Piramal Chamber, Lal Baug, Parel, Mumbai – 400 012 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No:AAACT3149E Appellant .. Respondent [ Appellant by : Satish Mody Respondent by : Ajeya Kumar Ojha Date of Hearing 16.10.2023 Date of Pronouncement 20.10.2023 आदेश / O R D E R Per Amarjit Singh (AM): This appeal filed by the assesse is directed against the order passed by the NFAC dated 20.05.2023 for A.Y. 2016-17. The assessee has raised the following grounds before us: “. The Learned Commissioner of Income-tax Appeal, National Faceless Appeal Centre, Delhi, has erred in confirming the disallowance of depreciation of Rs.61,43,093/-, being allowable expenditure towards application on the Objects of the Trust on the basis that it amounts to double deduction as addition to the assets as well as depreciation thereon both are claimed as an application on the objects of the Trust, without considering the fact that no claim has been made on addition of properties used on Objects of the Trust after the amendment of the Provisions of the 1.T.Act, 1961 as and from 01/04/2015. 2. The Learned Commissioner of Income-tax Appeal. National Faceless Appeal Centre, Delhi, has erred in making disallowance of Total P a g e | 2 ITA No.2456/Mum/2023 The Bombay Hockey Associatin Ltd. Vs. ITO, Exemption Ward 2(4) Depreciation of Rs. 61,43,093/- as appearing in Income & Expenditure A/c without appreciating the fact that Appellant had only claimed Rs. 12,14,789/- as Depreciation as application during A.Y 2016 17 and balance Unabsorbed Depreciation of Rs.49,28,304/- was carried forward to subsequent years for set off. 3. The Learned Commissioner of Income-tax Appeal, National Faceless Appeal Centre. Delhi, has erred in confirming the disallowance of depreciation as expenditure incurred on assets used for the charitable activities though no claim for deduction of addition of Fixed Assets/ capital expenditure acquired out of Income accumulated us. 11(1)(a) or 11(2) of the I.T. Act, 1961 was made in earlier years 4. The Learned Commissioner of Income-tax Appeal, National Faceless Appeal Centre, Delhi, has erred in not allowing set off of the carried forward losses as available to Appellant for earlier years against the Taxable Income arrived as per the Orders of the ITAT and/or High Court with respect to set off of Unabsorbed expenditure of earlier years. 5. The Appellant reserves the right to add, alter or amend the above grounds of appeal as and when found necessary.” 2. Fact in brief is that assessee filed its return of income along with income and expenditure account, balance sheet and audit report in Form No. 10B on 16.10.2016 declaring nil income. The assesse trust was registered as a charitable organization with Charity Commissioner and also registered with CIT(Exemption) u/s 12A of the Act. During the course of assessment the AO noticed that assesse has claimed depreciation of Rs.61,43,093/- (on movable assets of Rs.22,15,281/- and on immovable assets of Rs.39,27,812/-) respectively. The assessing officer has disallowed the claim of deprecation on the ground that it amount to double taxation as addition to the asset as well as depreciation both were claimed as an application of the object of the trust. 3. The assessee filed the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee and also not allowed the claim of carry forward losses. P a g e | 3 ITA No.2456/Mum/2023 The Bombay Hockey Associatin Ltd. Vs. ITO, Exemption Ward 2(4) 4. During the course of appellate proceedings before us the ld. Counsel submitted that assessee could not made any compliance before the ld. CIT(A) and therefore, ld. CIT(A) has passed ex-parte order u/s 250 of the Act on 20.03.2023. In this regard, the ld. Counsel submitted that assessee has not received any communication regarding the hearing fixed before the ld. CIT(A) because email of the assessee maintained on Hotmail given to the ld. CIT(A) was not active. The ld. Counsel submitted that now the assessee has maintained active new Email on Yahoo.Com as mentioned in Form no. 36, therefore, pleaded that more opportunity should be given to the assessee before the ld. CIT(A) for deciding the case of the assesse on merit. On the other hand, the ld. D.R supported the order of lower authorities. 5. Heard both the sides and perused the material on record. Without reiterating the fact as elaborated above the ld. CIT(A) has passed ex- parte order u/s 250 of the Act on the ground that assessee has failed to make any response during the course of appellate proceedings. We have perused the copy of form no. 35 filed by the assessee before the ld. CIT(A) and found that in the form no. 35 the assesse has given the email address as [e-mail] which was not active therefore notices of hearing issued on this email was not received. We find that in the form no. 36 filed before us the assesse has given the new Email as [e-mail]. In view of the above facts and circumstances in order to decide the issue in appeal on merit, we restore this case to the file of the ld. CIT(A) for deciding afresh after affording opportunity of hearing to the assessee as provided u/s 250(6) of the Act. The ld. CIT(A) is requested to take on record the new Email Id given by the assessee for the purpose of making communication relating to appellate proceedings. The assessee is directed to make compliance P a g e | 4 ITA No.2456/Mum/2023 The Bombay Hockey Associatin Ltd. Vs. ITO, Exemption Ward 2(4) without any failure. Therefore, the appeal of the assessee is allowed for statistical purposes. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 20.10.2023 Sd/- Sd/- (Kuldip Singh) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 20.10.2023 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.