ITO (E) 2(3), MUMBAI V. SHIVA EDUCATIONAL TRUST, MUMBAI

ITA 2668/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8285 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Department
• Bench Allotted: J
• Next Hearing Date: 13-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 07-05-2015
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Assessee Lawyers: D C JAIN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2668/M/ 2015 (AY 2010 - 2011) ITA NO. 2669 /M/ 2015 (AY 2011 - 2012 ) ITO - (E) - 2(3), MUMBAI. / VS. SAI SHIVA EDUCATION TRUST, GROUND FLOOR, AMAR MAHAL, A.D. ROAD, NR. CHANDAN CINEMA JUHU, MUMBAI - 49. ./ PAN : AAATS2744P ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SAMBIT MISHRA / RESPONDENT BY : SHRI D.C. JAIN / DATE OF HEARING : 16 .02.2017 / DATE OF PRONOUNCEMENT : 22 .02.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE REVENUE FOR THE ASSESSMENT YEARS 2010 - 11 AND 2011 - 12. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE IDENTICAL / INTER - CONNECTED, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDL Y AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. THE COMMON ISSUE RAISED IN THESE APPEALS RELATES TO DENIAL OF EXEMPTION U/S 11 OF THE ACT ALLEGING THE BENEFITS ACCRUED TO THE TRUSTEE S TO THE EXTENT OF RS. 90 LAKHS FOR THE AY 2010 - 11 AND RS.79 LAKHS FOR THE AY 2011 - 12. THERE IS ANOTHER ISSUE RELATING TO THE DISALLOWANCE OF CLAIM OF DEPRECIATION ON THE ASSETS ACQUIRED WITH THE EXEMPT FUNDS. 3. IN CONNECTION WITH THE FIRST ISSUE, RELATI NG TO THE DENIAL OF DEDUCTION OF EXEMPTION U/S 11 OF THE ACT, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO AN ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE OF THE AY 2008 - 2009, WHICH WAS 2 ACTUALLY RELIED ON BY THE AUTHORITIES BELOW, IN ITA NO. 58 03/M/2011 (AY 2008 - 2009), DATED 31.7.2015 . IN THIS REGARD, LD AR SUBMITTED THAT SIMILAR ISSUE REGARDING THE DENIAL OF EXEMPTION U/S 11 WAS THE SUBJECT MATTER IN THAT CASE AND THE MATTER WAS RESTORED TO THE FILE OF THE CIT (A) FOR DE NOVO ADJUDICATION AFTE R EXAMINING THE FACTS AND THE EVIDENCE WHICH ASSESSEE MAY PLACE BEFORE THE CIT (A). BRINGING OUR ATTENTION TO THE CONTENTS OF PARA 6 OF THE SAID TRIBUNALS ORDER (SUPRA), LD AR PRAYED FOR RESTORING THIS ISSUE, RAISED COMMONLY IN BOTH THE APPEALS OF THE RE VENUE, TO THE FILE OF THE AO. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE SAID PARA 6 OF THE TRIBUNALS ORDER (SUPRA), WE AGREE WITH THE ARGUMENTS OF THE LD AR. CONSIDERING THE COMMONALITY OF THE ISSUES INVOLVED AND RESPECTFULLY FOLLOWING THE CI TED ORDER OF THE TRIBUNAL (SUPRA), WE RESTORE THIS ISSUE TO THE FILE OF THE CIT (A) WITH IDENTICAL DIRECTIONS. ACCORDINGLY, WE ORDER. THUS, THE RELEVANT GROUND IS ALLOWED I N B O T H A P P E A L S FOR STATISTICAL PURPOSES. 4. REGARDING THE SECOND ISSUE, WE FIND, THE ISSUE RELATING TO THE DENIAL OF DEPRECIATION ON THE FIXED DEPOSITS ACQUIRED BY THE TRUST APPLYING THE EXEMPT FUNDS IS A SETTLED ONE IN FAVOUR OF THE ASSESSEE. ON PERUSAL OF THE IMPUGNED ORDER OF THE CIT (A), WE FIN D, THE CIT (A) DEALT WITH THIS ISSUE IN PARA 10 OF HIS ORDER AND DECIDED THE SAME IN FAVOUR OF THE ASSESSEE RELYING ON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASES OF DIT (E) VS. GKR CHARITIES (2014) AND CIT V/S INSTITUTE OF BANKING P ERSONNEL SELECTION , [2003] 264 ITR 110 (BOM.) . ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE ORDERS AND THE CITED PRECEDENTS (SUPRA),WE FIND, THE DECISION TAKEN BY THE CIT (A) VIDE PARA 10 OF HIS ORDER IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, RELEVANT GROUNDS RAISED I N B O T H A P P E A L S BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN THE OPEN COURT ON 2 2 N D F EBRUARY, 2017. S D / - S D / - (PAWAN SINGH) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 22.02.2017 3 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI