ITO (E)-I(1), MUMBAI V. THE BOMBY PRESIDENCY GOLF CLUB, MUMBAI

ITA 2675/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3021 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANDHIR GUPTADR
• Keywords: Depreciation
• Section: 80G; 12A; 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2675/MUM/2012 ASSESSMENT YEAR 2008-09 ITO(E)-I(1) ROOM NO.504, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL MUMBAI-400012 / VS. THE BOMBAY PRESIDENCY GOLF CLUB, DR. CHOITRAM GIDWANI ROAD, CHEMBUR, MUMBAI ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AAATT5024B / REVENUE BY SHRI RANDHIR GUPTA-DR !'# $ / ASSESSEE BY SHRI SHEKHAR GUPTA % & $ ' / DATE OF HEARING : 19/10/2015 & $ ' / DATE OF ORDER: 19/10/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 24/02/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL IS THAT WHETH ER THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS RIGHT IGNO RING THE RATIO LAID DOWN IN ESCORTS LTD. VS UNION OF INDIA, WHEREIN IT WAS HELD THAT DOUBLE DEDUCTION CANNOT BE PRESUMED, IF IT IS THE BOMBAY PRESIDENCY GOLF CLUB LTD. ITA NO.2675/MUM/2012 2 NOT SPECIALLY PROVIDED BY LAW IN ADDITION TO NORMAL DEDUCTION. 2. DURING HEARING, THE LD. DR, SHRI RANDHIR GUPTA, ADVANCED HIS ARGUMENTS IDENTICAL TO THE GROUND RAIS ED. ON THE OTHER HAND, SHRI SHEKHAR GUPTA, LD. COUNSEL FOR THE ASSESSEE CLAIMED THAT THE ISSUE IS COVERED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN CIT VS INSTITUTE OF BANKING (264 ITR 110)(BOM.) AND CIT VS TINY TOTS ED UCATION SOCIETY (2011) 330 ITR 21 (P & H). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS DULY REGISTERED U/S 12A OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). THE ASS ESSEE RECEIVES FEE FROM ITS MEMBERS WHICH IS DEPOSITED IN THE BANKS AS PROPERTY OF THE TRUST. THE ASSESSEE EARNE D INTEREST INCOME FROM SUCH DEPOSITS AND APPLIED THE SAME TOWA RDS THE OBJECTS OF THE TRUST I.E. MAINTENANCE OF THE GOLF C OURSE. THE STAND OF THE DEPARTMENT IS THAT THE ASSESSEE IS DOI NG BUSINESS ACTIVITY, WHEREAS, THE STAND OF THE ASSESS EE IS THAT THE ASSESSEE IS NOT CARRYING OUT ANY BUSINESS, THER EFORE, THE INCOME IS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. WITHOUT GOING INTO MUCH DELIBERATION, WE F IND THAT THE ISSUE UNDER HAND IS COVERED BY THE DECISION FRO M HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INSTITUTE OF BANKING 264 ITR 110 (BOM.) AND CIT VS TINY TOTS EDUCATION S OCIETY 330 ITR 21 (P & H), WHEREIN, IT WAS HELD THAT DEPRE CIATION IS AN ALLOWABLE EXPENDITURE. EVEN OTHERWISE, THE DEPAR TMENT THE BOMBAY PRESIDENCY GOLF CLUB LTD. ITA NO.2675/MUM/2012 3 HAS GRANTED REGISTRATION TO THE ASSESSEE CLUB U/S 1 2A AND THE BENEFIT OF SECTION 80G OF THE ACT. THE OBJECTS OF THE ASSESSEE CLUB ARE CHARITABLE IN NATURE, ITS INCOME WAS ALSO EXEMPT U/S 11 OF THE ACT. THE STAND OF THE REVENUE IS THAT IF DEPRECIATION IS ALLOWED TO THE ASSESSEE, IT WOULD R ESULT IN DOUBLE DEDUCTION. IN VIEW OF THE DECISION FROM HON BLE JURISDICTIONAL HIGH COURT (SUPRA), WE FIND NO INFIR MITY IN THE IMPUGNED ORDER DIRECTING THE ASSESSING OFFICER TO A LLOW DEPRECIATION ON THE ASSET, THE COST OF WHICH HAD BE EN FULLY AS APPLICATION OF INCOME U/S 11 IN EARLIER YEARS. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 19/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ( DATED : 19/10/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI 5. 34 .$ ! , 0 *+' *! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. / BY ORDER, /3+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI.