ADIT (E) I(2), MUMBAI V. THE SANTACRUZ RESIDENTS ASSOCIATON, MUMBAI

ITA 2670/MUM/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9452 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Department
• Bench Allotted: E
• Next Hearing Date: 06-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2012
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: KINJAL S DOSHI
• Keywords: Capital asset; Depreciation
• Section: 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ./ ITA NO . 2670 / MUM/20 1 2 ( / ASSESSMENT YEAR : 200 7 - 08 ) ADIT(E)I(2), MUMBAI VS. THE SANTACRUZ RESIDENTS ASSOCIATION, SMT. BCJ GENERAL HOSPITAL, S.V.ROAD, SANTACRUZ (W), MUMBAI - 400054 ./ ./ PAN/GIR NO. : A A ATS 8214 L ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI NEIL PHILIP /ASSESSEE BY : MISS KINJAL S. DOSHI / DATE OF HEARING : 16/03/2015 / DATE OF PRONOUNCEMENT 20/ 03/2015 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 1 - 3 - 2012 , FOR THE A.Y.200 7 - 08 IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE I.T.ACT, WHEREIN FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVE NUE : - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE HON'BLE HIGH COURT WAS RIGHT IN IGNORING THE RATIO OF HON'BLE SUPREME COURT JUDGMEN TS IN THE CASE OF ESCORTS LTD V/ S UOI 199 ITR 43 WHEREIN HON'BLE SUPREME COURT HAS HELD THAT DOUBLE DEDUCTION CANNOT BE PRESUMED IF THE SAME IS NOT SPECIFICALLY PROVIDED BY LAW, IN ADDITION TO NORMAL DEDUCTION AND HAS ALLOWED DEPRECIATION AMOUNTING TO RS 57,50,894 / - .' 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. AND IN LA W. THE HONBLE HIGH COURT WAS RIGHT IN IGNORING THE ITA NO. 2670 / 1 2 2 RATIO OF HON'BLE SUPREME COURT JUDGMENTS IN THE CASE OF ESCORTS LTD V/ S UOI 199 ITR 43 WHEREIN HON'BTE SUPREME COURT HAS HELD THAT DOUBLE DEDUCTION CANNOT BE PRESUMED IF THE SAME IS NOT SPECIFICALLY PROVID ED BY LAW, IN ADDITION TO NORMAL DEDUCTION INSTEAD AND ALLOWED CARRY FORWARD OF DEFICIT OF RS 93,83,296 / - . 3. THE APPELLANT PRAYS THAT THE ORDER OF THE ID CIT (APPEALS) - I, MUMBAI BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 2. AT THE OUT SET, LD. AR PLACED ON RECORD ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SECTION (IBPS), 264 ITR 110 (BOM) , WHEREIN BOTH ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE 3. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORI TIES BELOW AND FOUND THAT THE AO HAS DISALLOWED ASSESSEES CLAIM OF DEPRECIATION ON THE PLEA THAT PROVISIONS OF SECTION 11 PROVIDES FOR DEDUCTION OF EXPENDITURE INCURRED FOR OBJECTS OF THE TRUST AND THE DEDUCTION ON DEPRECIATION OF CAPITAL ASSETS WILL AMOU NT TO DOUBLE DEDUCTION, AND, HENCE, HELD THAT DEPRECIATION CANNOT BE ALLOWED IN CASE OF ALLOWANCE OF EXEMPTION U/S.11. THE AO ALSO DID NOT ALLOW CARRY FORWARD OF DEFICIT OF THE ASSESSEES TRUST. THE CIT(A) HAS ALLOWED BOTH THE ISSUES IN FAVOUR OF THE ASSES SEE BY RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SECTION (SUPRA). WE HAD CAREFULLY GONE THROUGH THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SEC TION (SUPRA) AND FOUND THAT BOTH THE ISSUES HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE HONBLE HIGH COURT HAS HELD THAT EVEN IN CASE OF ASSESSEE ELIGIBLE FOR DEDUCTION U/S.11 , CLAIM O F DEPRECIATION ON CAPITAL ASSETS IS ALLOWABLE AND ALSO HELD THAT AS SESSEE CAN CARRY FORWARD DEFICIT OF EARLIER YEARS OR SUBSEQUENT YEARS. IN ITA NO. 2670 / 1 2 3 VIEW OF THE ABOVE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SECTION (SUPRA) , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CI T(A). 4 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 20 /03/ 201 5 . SD/ - SD/ - ( ) ( SANJAY GARG ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 20/03 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY OR DER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / T HE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//