DCIT, CHENNAI V. M/s. Willingdon Charitable Trust, CHENNAI

ITA 2986/CHNY/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5215 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 20-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Charitable institution; Wrong claim
• Section: 143(3); 80G; 12A; 12AA; 10B; 147; 263; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NOS.2984, 2985, 2986, 2987 & 2988/CHNY/2016 ' (' / ASSESSMENT YEARS : 2006-07, 2010-11, 2012-13 & 201 3-14 THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS), CHENNAI CIRCLE, CHENNAI - 600 034. V. M/S THE WILLINGDON CHARITABLE TRUST, CHETTINAD HOUSE, RAJA ANNAMALAI PURAM, CHENNAI - 600 028. PAN : AAATT 0683 N (*+/ APPELLANT) (,-*+/ RESPONDENT) ./ ITA NOS.3021, 3022, 3023, 3024, 3025 & 3026/CHNY/20 16 ' (' / ASSESSMENT YEARS : 2006-07, 2009-10, 2010-11, 2012 -13 & 2013-14 M/S THE WILLINGDON CHARITABLE TRUST, C/O SHRI S. SRIDHAR, SH. A.S. SRIRAMAN, ADVOCATES, NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI - 600 020. V. THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS) -1, CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) . / 0 /REVENUE BY : SMT. RUBY GEORGE, CIT '12 / 0 /ASSESSEE BY : SHRI S. SRIDHAR, ADVOCATE 3 / 2$ / DATE OF HEARING : 08.02.2018 4!( / 2$ / DATE OF PRONOUNCEMENT : 19.04.2018 2 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: ALL THE APPEALS OF THE REVENUE AND ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) -17, CHENNAI, DATED 05.08.2016 AND PE RTAIN TO ASSESSMENT YEARS 2006-07, 2009-10, 2010-11, 2012-13 AND 2013- 14. SINCE COMMON ISSUES ARISE FOR CONSIDERATION IN ALL THESE APPEALS, WE HEARD THESE APPEALS TOGETHER AND DISPOS ING OF THE SAME BY THIS COMMON ORDER. 2. LETS FIRST TAKE THE ASSESSEES APPEAL FOR ASSES SMENT YEAR 2006-07 IN I.T.A. NO.3021/CHNY/2016. 3. THE ONLY ISSUE RAISED BY THE ASSESSEE IS REOPENI NG OF ASSESSMENT UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 4. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT FOR THE ASSESSMENT YEAR 2006-07, THE ASSESSMEN T WAS COMPLETED UNDER SECTION 143(3) OF THE ACT AFTER EXA MINING ALL THE MATERIAL FILED BY THE ASSESSEE. ACCORDING TO THE L D. COUNSEL, THE ASSESSING OFFICER SUBSEQUENTLY FOUND THAT THE ASSES SEE SET OFF 3 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 EXCESS APPLICATION OF INCOME BROUGHT FORWARD TO THE EXTENT OF 1,03,58,210/- FROM THE ASSESSMENT YEAR 2005-06. AC CORDING TO THE LD. COUNSEL, THE REQUIRED MATERIAL WAS ALREADY AVAILABLE BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER ALL OWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF THE MATERIAL. ACCORDI NG TO THE LD. COUNSEL, NO FRESH MATERIAL CAME INTO THE POSSESSION OF THE ASSESSING OFFICER, THEREFORE, REOPENING OF ASSESSME NT IN THE ABSENCE OF ANY NEW MATERIAL IS NOT JUSTIFIED. 5. ON THE CONTRARY, SMT. RUBY GEORGE, THE LD. DEPAR TMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE MADE A WRONG CLAIM OF SET OFF BEFORE THE ASSESSING OFFICER. THEREFORE, A CCORDING TO THE LD. D.R., THE ASSESSING OFFICER IS JUSTIFIED IN REOPENI NG THE ASSESSMENT AFTER RECORDING HIS REASONS. SINCE THE ASSESSING O FFICER HAS NOT CONSIDERED THE CLAIM OF SET OFF WHICH WAS CLAIMED B Y THE ASSESSEE, ACCORDING TO THE LD. D.R., THE ASSESSING OFFICER HA S RIGHTLY REOPENED THE ASSESSMENT FOR ASSESSING THE INCOME WH ICH WAS ESCAPED FROM TAXATION IN VIEW OF WRONG CLAIM OF SET OFF. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN 4 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 DISPUTE THAT THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFF ICER FOUND THAT THE ASSESSEE HAD SET OFF EXCESS APPLICATION BROUGHT FORWARD TO THE EXTENT OF 1,03,58,210/- FROM THE ASSESSMENT YEAR 2005-06. TH IS CLAIM OF SET OFF BY THE ASSESSEE WAS VERY MUCH AVAI LABLE BEFORE THE ASSESSING OFFICER WHEN THE ASSESSMENT WAS MADE UNDE R SECTION 143(3) OF THE ACT. ADMITTEDLY, NO FRESH MATERIAL C AME INTO THE KNOWLEDGE / NOTICE OF THE ASSESSING OFFICER. 7. THE QUESTION ARISES FOR CONSIDERATION IS WHEN TH E ASSESSEE HAD FURNISHED ALL THE REQUIRED DETAILS AND THE ASSE SSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF TH E ACT, CAN THE ASSESSING OFFICER REOPEN THE ASSESSMENT IN THE ABSE NCE OF ANY NEW MATERIAL OR INFORMATION INTO HIS POSSESSION? A N IDENTICAL QUESTION WAS CONSIDERED BY THE MADRAS HIGH COURT IN TANMAC INDIA V. DCIT IN TAX CASE (APPEAL) NO.1426 OF 2007 DATED 19.12.2016. THE MADRAS HIGH COURT FOUND THAT WHEN THE ENTIRE MATERIAL WAS AVAILABLE BEFORE THE ASSESSING OFFICER , IN THE ABSENCE OF ANY NEW MATERIAL, THE ASSESSING OFFICER CANNOT R EOPEN THE ASSESSMENT UNDER SECTION 147 OF THE ACT. THE MADRA S HIGH COURT FURTHER FOUND THAT SECTION 147 OF THE ACT IS NOT TO EXTEND THE PERIOD 5 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 OF LIMITATION PROVIDED FOR COMPLETING THE ASSESSMEN T. UNLESS AND UNTIL A NEW MATERIAL WAS FOUND ON RECORD BY THE ASS ESSING OFFICER, THE COMPLETED ASSESSMENT CANNOT BE REOPENED ON THE BASIS OF VERY SAME MATERIAL AVAILABLE ON RECORD. IN VIEW OF THIS JUDGMENT OF MADRAS HIGH COURT, THIS TRIBUNAL IS OF THE CONSIDER ED OPINION THAT REOPENING OF ASSESSMENT FOR THE ASSESSMENT YEAR 200 6-07 IS NOT JUSTIFIED. THEREFORE, THE CONSEQUENTIAL ORDER PASS ED BY THE ASSESSING OFFICER CANNOT STAND. HENCE, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ADDITION MA DE AFTER REOPENING OF ASSESSMENT IS DELETED. 8. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSM ENT YEAR 2006-07 IS ALLOWED. 9. THE REVENUE ALSO FILED AN APPEAL FOR THE ASSESSM ENT YEAR 2006-07 IN I.T.A. NO. 2984/CHNY/2016. SINCE THE RE OPENING OF ASSESSMENT IS HELD TO BE NOT VALID IN THE ASSESSEE S APPEAL, THIS TRIBUNAL DO NOT FIND ANY REASON TO ENTERTAIN THE RE VENUES APPEAL. ACCORDINGLY, THE REVENUES APPEAL FOR ASSESSMENT YE AR 2006-07 STANDS DISMISSED. 6 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 10. NOW COMING TO ASSESSMENT YEAR 2009-10, THE ASSE SSEE ALONE FILED APPEAL IN I.T.A. NO.3022/CHNY/2016. 11. THE ONLY GROUND RAISED BY THE ASSESSEE IS WITH REGARD TO ADDITION OF ACCUMULATED INCOME OF 1,23,41,310/-. 12. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSE E, SUBMITTED THAT THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2009-10 IN I.T.A. NO.1044/MDS/2014 DATED 15.05.2015 FOUND THAT THE MA TTER NEEDS TO BE EXAMINED AFRESH. ACCORDING TO THE LD. COUNSEL, THE TRIBUNAL FURTHER FOUND THAT THE ISSUE OF APPLICATION OF ACCU MULATED INCOME FOR THE ASSESSMENT YEAR 2004-05 UPTO 31.03.2008 IS TO B E EXAMINED WHILE FRAMING THE FRESH ASSESSMENT. IN VIEW OF ABO VE, THE CIT(APPEALS) FOUND THAT THE ISSUE RAISED BY THE ASS ESSEE IS PREMATURE AND INFRUCTUOUS. ACCORDING TO THE LD. CO UNSEL, WHEN THE ASSESSEE HAS RAISED A SPECIFIC ISSUE, THE CIT(APPEA LS) IS NOT JUSTIFIED IN REJECTING THE SAME AS PREMATURE AND IN FRUCTUOUS. 13. ON THE CONTRARY, SMT. RUBY GEORGE, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT THIS TRIBUNAL IN THE ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2009-10 IN I.T.A. NO.1044/ MDS/2014 FOUND THAT THE MATTER NEEDS TO BE RE-EXAMINED. ACC ORDINGLY, IT IS 7 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 PENDING BEFORE THE ASSESSING OFFICER. THEREFORE, A CCORDING TO THE LD. D.R., REMITTING THIS ISSUE ONCE AGAIN TO THE AS SESSING OFFICER IS A PREMATURE ONE AND THE CIT(APPEALS) HAS RIGHTLY RE JECTED THE GROUND RAISED BY THE ASSESSEE. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT IN THE FIRST ROUND OF LITIGATION, THIS TRIBUNAL IN I.T.A. NO.1044/MDS/2014 BY AN ORDER DATED 15.05.2015, FOUN D THAT THE MATTER NEEDS TO BE RE-EXAMINED. THIS TRIBUNAL FURT HER FOUND THAT THE ISSUE OF APPLICATION OF ACCUMULATED INCOME UPTO 31.03.2008 NEEDS TO BE RE-EXAMINED. THEREFORE, ENTERTAINING T HIS ISSUE AT THIS STAGE MAY BE PREMATURE ONE AS RIGHTLY FOUND BY THE CIT(APPEALS), THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SA ME IS CONFIRMED. 15. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESS MENT YEAR 2009-10 IS DISMISSED. 16. NOW COMING TO ASSESSMENT YEAR 2010-11, THE ASSE SSEE HAS FILED APPEAL IN I.T.A. NO.3024/CHNY/2016 AGAINST TH E ORIGINAL ASSESSMENT ORDER. 8 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 17. THE ONLY GROUND RAISED BY THE ASSESSEE IS WITH REGARD TO DEPRECIATION OF CERTAIN ASSETS THE COST OF WHICH WA S ALLOWED AS APPLICATION OF INCOME UNDER SECTION 11 OF THE ACT. 18. WE HEARD SHRI S. SRIDHAR, THE LD.COUNSEL FOR TH E ASSESSEE AND SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESEN TATIVE. THE APEX COURT IN THE CASE OF CIT V. RAJASTHAN AND GUJA RATI CHARITABLE FOUNDATION POONA IN CIVIL APPEAL NO.7186 OF 2014 FO UND THAT THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION EVEN THOUGH T HE COST OF THE ASSET WAS ALLOWED AS APPLICATION OF INCOME UNDER SE CTION 11 OF THE ACT. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE AUTHORITIES BELOW. ACCORDINGLY, ORDE RS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ASSESSING O FFICER IS DIRECTED TO ALLOW DEPRECIATION. 19. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESS MENT YEAR 2010-11 STANDS ALLOWED. 20. NOW COMING TO REVENUES APPEAL FOR ASSESSMENT Y EAR 2010- 11 IN I.T.A. NO.2985/CHNY/2016. 9 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 21. THE ONLY GROUND RAISED BY THE REVENUE IS WITH R EGARD TO CARRY FORWARD THE EXCESS APPLICATION OF 6,94,54,741/- TO THE SUBSEQUENT YEARS. 22. SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESEN TATIVE, SUBMITTED THAT THE CIT(APPEALS), BY FOLLOWING THE J UDGMENT OF MADRAS HIGH COURT IN CIT V. MATRISEVA TRUST (2000) 242 ITR 20, ALLOWED THE CLAIM OF THE ASSESSEE BY HOLDING THAT T HE DEFICIENCY IN ONE YEAR CAN BE SET OFF AGAINST THE EXCESS APPLICAT ION OF SUBSEQUENT YEAR. ACCORDING TO THE LD. D.R., THE EX CESS APPLICATION OF INCOME, IN A PARTICULAR YEAR CANNOT BE ADJUSTED WITH DEFICIENCY IN ANOTHER YEAR. 23. WE HEARD SHRI S. SRIDHAR, THE LD.COUNSEL FOR TH E ASSESSEE ALSO. THE CIT(APPEALS) BY PLACING RELIANCE ON THE JUDGMENT OF MADRAS HIGH COURT IN MATRISEVA TRUST (SUPRA) FOUND THAT THE ASSESSEE IS ELIGIBLE FOR CARRY FORWARD THE EXCESS APPLICATION OF INCOME AGAINST THE SHORTFALL IN THE SUCCEEDING YEAR . WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF MADRAS HIGH COURT IN MATRISEVA TRUST (SUPRA). THE MADRAS HIGH COURT BY PLACING ITS RELIANCE ON THE JUDGMENT OF RAJASTHAN HIGH COURT IN CIT V. 10 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 MAHARANA OF MEWAR CHARITABLE FOUNDATION (1987) 164 ITR 439 AND ON THE JUDGMENT OF GUJARAT HIGH COURT IN CIT V. SHR I PLOT SWETAMBER MURTI PUJAK JAIN MANDAL (1995) 211 ITR 29 3, FOUND THAT THE ASSESSEE IS ENTITLED TO SET OFF THE EXCESS APPL ICATION OF THE EARLIER YEAR AGAINST THE DEFICIENCY IN THE NEXT YEA R. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SINCE THE CIT(APPEAL S) HAS FOLLOWED THE JUDGMENT OF JURISDICTIONAL HIGH COURT, WHICH IS BINDING ON ALL THE AUTHORITIES, THE REVENUE CANNOT HAVE ANY GRIEVANCE AT ALL. THEREFORE, THE ORDER OF THE CIT(APPEALS) IS CONFIRM ED. 24. IN THE RESULT, THE REVENUES APPEAL FOR ASSESSM ENT YEAR 2010-11 IS DISMISSED. 25. BOTH THE ASSESSEE AND REVENUE FILED APPEALS FOR THE ASSESSMENT YEAR 2010-11 AFTER REOPENING OF ASSESSME NT UNDER SECTION 147 OF THE ACT. 26. LETS FIRST TAKE REVENUES APPEAL IN I.T.A. NO.2986/CHNY/2016. 27. THE FIRST GROUND OF APPEAL IS WITH REGARD TO AC TIVITY OF THE ASSESSEE. 11 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 28. SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESEN TATIVE, SUBMITTED THAT THE ASSESSEE IS RUNNING TWO KALYANA MANDAPAMS IN THE NAME OF RAJAH MUTHIAH HALL AND RANI MEYAMMAI HA LL. ACCORDING TO THE LD. D.R., RUNNING OF KALYANA MANDA PAMS IS A COMMERCIAL ACTIVITY, THEREFORE, IT WOULD ATTRACT TH E PROVISO TO SECTION 2(15) OF THE ACT. HENCE, ACCORDING TO THE LD. D.R. , THE ASSESSEE CANNOT BE CONSIDERED TO BE A CHARITABLE INSTITUTION . 29. ON THE CONTRARY, SHRI S. SRIDHAR, THE LD.COUNSE L FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE IS REGISTERED UNDER SECTION 12AA OF THE ACT AS CHARITABLE INSTITUTION. ACCORDI NG TO THE LD. COUNSEL, THE ASSESSEE CAN HAVE BUSINESS UNDER TRUST . THE INCOME OF THE BUSINESS HAS TO BE APPLIED ONLY FOR CHARITAB LE ACTIVITY. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE IS RUNNI NG TWO HOSTELS ONE FOR WORKING WOMEN AND ANOTHER ONE FOR GIRL STUD ENTS STUDYING IN ETHIRAJ WOMENS COLLEGE. THE INCOME FROM TWO KALYA NA MANDAPAMS ARE APPLIED FOR RUNNING THE HOSTELS AND O THER CHARITABLE ACTIVITIES. SO LONG AS THE ACTIVITY OF THE TRUST I S NOT IN DOUBT, AND THE KALYANA MANDAPAMS WERE HELD UNDER TRUST, ACCORDING TO THE LD. 12 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 COUNSEL, THE CIT(APPEALS) HAS RIGHTLY ALLOWED THE C LAIM OF THE ASSESSEE. 30. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 11 OF THE ACT. IT IS NOT IN DISPUTE THAT RAJAH MUTHIAH HALL AND RANI MEY AMMAI HALL WERE HELD UNDER TRUST BY THE ASSESSEE-CHARITABLE IN STITUTION. THE INCOME OF THE TRUST WAS APPLIED FOR RUNNING WOMENS HOSTELS FOR WORKING WOMEN AND GIRL STUDENTS MOSTLY STUDYING IN ETHIRAJ WOMENS COLLEGE. THE CIT(APPEALS) REFERRED THE JUD GMENT OF MADRAS HIGH COURT IN DIT V. WILLINGTON CHARITABLE T RUST (2011) 330 ITR 24. THE HIGH COURT FOUND THAT WHEN THE ASSESSE E ESTABLISHED THAT THE INCOME DERIVED FROM BUSINESS WAS UTILISED TOWARDS FULFILMENT OF OBJECT OF THE TRUST, THEN THE ASSESSE E IS ENTITLED FOR EXEMPTION UNDER SECTION 11 OF THE ACT. WE HAVE CAR EFULLY GONE THROUGH THE PROVISIONS OF SECTION 11(4) AND 11(4A) OF THE ACT. IT IS NOT THE CASE OF THE REVENUE THAT THE INCOME FROM TW O KALYANA MANDAPAMS IS NOT USED FOR CHARITABLE ACTIVITY. THE CIT(APPEALS) IN THE IMPUGNED ORDER HAS HELD AS FOLLOWS:- 13 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 TO SUM UP THEREFORE, IN SO FAR AS INVOKING SEC.2(15) R.W.S. 13(8) OF THE ACT IS CONCERNED BY THE RESPECTI VE A.OS IN THE IMPUGNED ASSESSMENTS, THEREBY DENYING THE BE NEFIT OF SEC.11 TO THE INSTANT APPELLANT IS LEGALLY UNTEN ABLE AND CLEARLY UNJUSTIFIABLE SINCE AS PER THE PROVISOS TO SEC.2(15), THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBL IC UTILITY SHALL NOT BE A CHARITABLE PURPOSE IF IT INV OLVES CARRYING ON ACTIVITIES IN THE NATURE OF TRADE, COMM ERCE OR BUSINESS OR ANY ACTIVITY OF RENDERING SERVICES IN R ELATION TO TRADE, COMMERCE OR BUSINESS AS STATED EARLIER, AND SINCE IN THE INSTANT CASE, BASED ON THE ABOVE DISCUSSION AND ALSO HELD THAT THE ASSESSEE WAS COMMITTED TO CHARITABLE OBJEC TS OF EDUCATION, MEDICAL RELIEF AND RELIEF OF THE POOR IN A CONSTANT AND CONSISTENT MANNER AND IN VIEW OF THE DEFINITION OF CHARITABLE PURPOSE U/S 2(15) AS CLARIFIED BY THE CBDT CIRCULAR 11/2008 DT. 19.12.2008, RELEVANT PORTIONS OF WHICH HAS BEEN EXTRACTED SUPRA, WHEREIN IT HAS BEEN CATEGO RICALLY HELD THAT THE NEWLY INSERTED PROVISOS TO SEC.2(15), O N WHICH AOS HAVE HEAVILY RELIED IN ORDER TO DENY EXEMPTION T O THE INSTANT APPELLANT, WOULD NOT APPLY IN RESPECT OF TH E FIRST THREE LIMBS WHICH THE APPELLANT WAS INVOLVED IN AND WHICH WOULD SQUARELY CONSTITUTE CHARITABLE PURPOSE EVEN IF IT INCIDENTALLY INVOLVED CARRYING ON COMMERCIAL ACTIVI TIES, AS ADMITTEDLY IT WAS IN THE CASE OF THE INSTANT APPELL ANT AND FURTHER ADMITTEDLY SINCE THE REGISTRATION U/S 12A OF THE ACT AS A CHARITABLE TRUST WAS GRANTED FROM AS FAR B ACK AS 1974 AND SUCH REGISTRATION HAVING NOT BEEN REVOKED TIL L DATE AND FURTHER SINCE LETTING OUT OF THE AFORESAID PROP ERTIES INCLUDING KALYANAMANDAPAMS, WORKING/GIRL STUDENTS H OSTEL AND AUDITORIUM ETC ARE ONLY TO ACHIEVE THE OBJECTS OF THE APPELLANT TRUST, THE PROVISOS TO SEC.2(150 HAS NO APPL ICATION TO THE ASSESSEES CASE AS ALSO HELD IN AN ALMOST ID ENTICAL CASE, RELEVANT TO THE AY 2010-11, I.E. AFTER THE COMI NG INTO EFFECT OF THE AFORESAID PROVISOS, IN ITAT, CHENNAI ORDER VIDE ITA NO.2272/MDS/2013 DT.09.01.2015 FOR A.Y. 2010-11 IN THE CASE OF DDIT(E)-II VS SRI NARAYANA GURUVIAH CHETTY ESTATE. 14 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 THEREFORE, IN VIEW OF ABOVE DISCUSSIONS AND THE BINDING RATIO OF THE DECISION OF THE HIGH COURT IN THE ASSESSEE'S OWN CASE QUOTED SUPRA AS ALSO THE JURISD ICTIONAL ITAT JUDGMENT IN THE CASE OF SRI NARAYANA GURUVIAH CHETTY ESTATE AND RESPECTFULLY FOLLOWING THE SAME, THE RUN NING OF THE KALYANAMANDAPAMS, HOSTELS, AUDITORIUMS ETC BY T HE INSTANT SOCIETY/TRUST COULD BE SAID TO BE INCIDENTA L TO THE ATTAINMENT OF THE OBJECTS OF THE INSTANT TRUST WHIC H REMAINED CONSTANT AND UNCHANGED SINCE ITS FORMATION OF CHARITABLE NATURE, INCLUDING MORE PARTICULARLY FOR EDUCATION, MEDICAL RELIEF AND RELIEF OF THE POOR AS STATED EAR LIER AND SINCE INCOME ARISING THERE FROM WAS BEING UTILIZED/ APPLIED TOO FOR THE STATED CHARITABLE OBJECTS OF THE ASSESS EE, ALBEIT IN MANY CASES THROUGH OTHER SIMILARLY PLACED CHARITABLE TRUSTS, HAVING CHARITABLE OBJECTS PARTIC ULARLY OF THE FIRST THREE LIMBS OF SEC.2(15), THE INSTANT APPEL LANT WAS THEREFORE ELIGIBLE FOR EXEMPTION U/S 11 INCLUDING ON THE INCOME DERIVED UNDISPUTEDLY FROM THE AFORESAID PROP ERTIES HELD UNDER TRUST AND THEREFORE THE A.O. IS DIRECTED TO ALLOW EXEMPTION U/S 11 OF THE ACT IN ALL THE YEARS IN APPE AL WHERE SUCH CLAIM HAS BEEN MADE. IN THE RESULT, THIS GROU ND IS ALLOWED FOR ALL THE THREE YEARS THE ISSUE IS RAISED IN APPEAL. 31. AS RIGHTLY FOUND BY THE CIT(APPEALS), THE INCOM E GENERATED IS INCIDENTAL TO THE CHARITABLE ACTIVITY. THEREFOR E, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 32. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADD ITION OF 46.05 CRORES TOWARDS CONSTRUCTION OF BUILDING KNOWN AS SIGAPPI AACHI BUILDING. 15 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 33. SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESEN TATIVE, SUBMITTED THAT THE ASSESSEE SPENT 46.05 CRORES TOWARDS CONSTRUCTION OF 10-STOREYED BUILDING KNOWN AS SIGA PPI AACHI BUILDING OVER A PERIOD OF FIVE YEARS FROM FINANCIA L YEAR 2006-07 TO 2010-11. SUBSEQUENTLY, IT WAS LET OUT TO CORPORATE COMPANIES. ACCORDING TO THE LD. D.R., THE ASSESSING OFFICER FO UND THAT THE ASSESSEE HAS INVESTED SURPLUS FUNDS IN CONSTRUCTION OF THE BUILDING. THE ASSESSEE HAS LET OUT THE BUILDING KNOWN AS SIG APPI AACHI BUILDING TO VARIOUS CORPORATE COMPANIES AND EARNIN G RENTAL INCOME. THEREFORE, ACCORDING TO THE LD. D.R., THE PRIMARY A CTIVITY OF THE ASSESSEE APPEARS TO BE LETTING OUT THE BUILDING AND NOT DOING ANY CHARITABLE ACTIVITY. ACCORDING TO THE LD. D.R., C ONSTRUCTION OF COMMERCIAL BUILDING AND LETTING OUT THE SAME TO COR PORATE COMPANIES AMOUNTS TO BUSINESS ACTIVITY, THEREFORE, PROVISO TO SECTION 2(15) OF THE ACT COMES INTO OPERATION. 34. ON THE CONTRARY, SHRI S. SRIDHAR, THE LD.COUNSE L FOR THE ASSESSEE, SUBMITTED THAT THE OBJECT OF THE TRUST IS EDUCATION AND MEDICAL RELIEF BESIDES OTHER CHARITABLE ACTIVITIES AS DESCRIBED IN THE TRUST DEED. THE CONCLUSION OF THE ASSESSING OFFICE R, ACCORDING TO THE LD. COUNSEL, THAT THE ASSESSEE IS PREDOMINANTLY INVOLVED IN 16 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 ADVANCEMENT OF GENERAL PUBLIC UTILITY IS NOT SUPPOR TED BY ANY MATERIAL EVIDENCE. ACCORDING TO THE LD. COUNSEL, T HE ASSESSEE WAS REGISTERED AS CHARITABLE INSTITUTION WHICH CONTINUE S TO CARRY ON EDUCATIONAL AND MEDICAL RELIEF TO POOR BESIDES OTHE R ACTIVITIES AS DESCRIBED IN THE TRUST DEED. ACCORDING TO THE LD. COUNSEL, IN THE ASSESSMENT YEAR 2004-05, FOR THE PURPOSE OF ACCUMUL ATED INCOME, THE ASSESSEE FILED FORM NO.10B SHOWING THE PURPOSE FOR WHICH THE INCOME WAS ACCUMULATED. ACCORDING TO THE LD. COUNS EL, THE ASSESSEE CLEARLY DISCLOSED IN FORM 10B THAT THE SUR PLUS INCOME WAS ACCUMULATED FOR THE PURPOSE OF CONSTRUCTING BUI LDING FOR CARRYING OUT CHARITABLE ACTIVITIES. THEREFORE, ACC ORDING TO THE LD. COUNSEL, PROVISO TO SECTION 2(15) OF THE ACT HAS NO APPLICATION IN THE CASE OF THE ASSESSEE. ACCORDING TO THE LD. COUNSEL , LETTING OUT THE BUILDING TO CORPORATE COMPANIES AND RUNNING OF KALY ANA MANDAPAMS, AUDITORIUM, HOSTEL FOR STUDENTS AND WORK ING WOMEN ARE INCIDENTAL TO THE MAIN OBJECT OF THE ASSESSEE-T RUST. THEREFORE, ACCORDING TO THE LD. COUNSEL, PROVISO TO SECTION 2( 15) OF THE ACT HAS NO APPLICATION AT ALL. REFERRING TO PROVISO TO SEC TION 2(15) OF THE ACT AND CBDT CIRCULAR, THE LD.COUNSEL SUBMITTED THAT PR OVISO TO SECTION 2(15) OF THE ACT WILL NOT BE APPLICABLE TO EDUCATIO NAL AND MEDICAL 17 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 TRUST. IT IS APPLICABLE ONLY IN RESPECT OF THE TRU STS WHICH ARE RENDERING SERVICE IN TRADE, COMMERCE OR BUSINESS. IN THIS CASE, THE MAIN OBJECT OF THE TRUST IS NOT BUSINESS, TRADE OR COMMERCE OR RENDERING ANY SERVICE TO TRADE. THEREFORE, ACCORDI NG TO THE LD. COUNSEL, THE AMENDMENT MADE BY THE PARLIAMENT BY IN SERTING THE PROVISO TO SECTION 2(15) OF THE ACT IS NOT APPLICAB LE AT ALL. 35. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSE E, FURTHER SUBMITTED THAT THE ASSESSEE-TRUST WAS ESTABLISHED I N THE YEAR 1924. REFERRING TO THE JUDGMENT OF APEX COURT IN ACIT V. SURAT CITY GYMKHANA (2008) 300 ITR 214, THE LD.COUNSEL SUBMITT ED THAT ONCE THE ASSESSEE-TRUST WAS REGISTERED UNDER SECTION 12A A OF THE ACT AND THE REGISTRATION CONTINUES TILL DATE, THE A.O. CANNOT PROBE INTO THE OBJECTS OF THE TRUST. WHAT THE ASSESSING OFFIC ER CAN DO IS HE CAN VERIFY WHETHER THE ASSESSEE IS CARRYING ON THE ACTIVITY IN FURTHERANCE OF ITS OBJECT FOR WHICH IT WAS ESTABLIS HED. ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER CANNOT SAY T HAT THE OBJECT OF THE TRUST IS NOT CHARITABLE ONE. IT IS FOR THE DIR ECTOR OF INCOME TAX (EXEMPTIONS) TO EXAMINE THE SAME IN CASE THE ACTIVI TY WAS NOT CARRIED ON AS PER THE OBJECT OF THE TRUST AS PROVID ED IN SECTION 12AA(3) OF THE ACT. THEREFORE, ACCORDING TO THE LD . COUNSEL, THE 18 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 ASSESSING OFFICER IS NOT CORRECT IN SAYING THAT THE ASSESSEE IS CARRYING ON BUSINESS ACTIVITY. ACCORDING TO THE L D. COUNSEL, THE RENTAL INCOME FROM SIGAPPI AACHI BUILDING WAS USE D FOR CARRYING OUT THE CHARITABLE ACTIVITIES IN FURTHERANCE OF THE OBJECT OF THE TRUST. 36. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE INVESTED ITS FUNDS IN CONSTRUCTION OF BUILDING KNOW N AS SIGAPPI AACHI BUILDING AND LET OUT THE SAME TO CORPORATE C OMPANIES. THE ASSESSING OFFICER HOLDS THAT CONSTRUCTION OF BUILDI NG KNOWN AS SIGAPPI AACHI BUILDING AND LETTING OUT THE SAME T O VARIOUS CORPORATE ENTITIES AMOUNTS TO ENGAGING IN BUSINESS ACTIVITY. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE CONSTRUCTED A BUILDING AND LET OUT THE SAME TO CORP ORATE ENTITIES AND RECEIVED RENTAL INCOME AND THE SAME WAS APPLIED FOR OBJECT OF THE TRUST, IT CANNOT BE SAID THAT THE ASSESSEE IS CARRY ING ON BUSINESS ACTIVITY. 37. CHARITABLE ACTIVITY CANNOT BE CARRIED ON WITHOU T MONEY. IN OTHER WORDS, TO CARRY OUT THE OBJECT OF THE TRUST, THE ASSESSEE NEEDS MONEY AND INCOME. THEREFORE, IT IS FOR THE ASSESSE E TO GENERATE 19 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 INCOME FROM THE PROPERTY HELD UNDER TRUST. WHEN TH E ASSESSEE EXPLOITED THE LAND BY PUTTING UP A CONSTRUCTION AND LETTING OUT THE SAME WITH AN INTENTION TO GENERATE INCOME FOR THE P URPOSE OF CARRYING ON THE OBJECT OF THE TRUST, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CONSTRUCTION OF SUCH BUILDING AND LETTING OUT THE SAME CANNOT BE CONSIDERED TO BE A COMMERCIAL ACTIVI TY. THEREFORE, THE CIT(APPEALS) HAS RIGHTLY FOUND THAT THE ASSESSE E IS ELIGIBLE FOR EXEMPTION UNDER SECTION 11 OF THE ACT. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. A SIMILAR VI EW WAS TAKEN BY THIS TRIBUNAL IN THE CASE OF DDIT(E)-II V. SRI NARA YANA GURUVIAH CHETTY ESTATE IN I.T.A. NO.2272/MDS/2013 DATED 09.0 1.2015. 38. IN THE RESULT, REVENUES APPEAL IN I.T.A. NO.29 86/CHNY/2016 IS DISMISSED. 39. NOW COMING TO THE ASSESSEES APPEAL FOR ASSESSM ENT YEAR 2010-11 IN I.T.A. NO.3023/CHNY/2016 AFTER REOPENING OF ASSESSMENT, THE FIRST ISSUE ARISES FOR CONSIDERATIO N IS VALIDITY OF REOPENING OF ASSESSMENT. 20 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 40. WE HEARD SHRI S. SRIDHAR, THE LD.COUNSEL FOR TH E ASSESSEE AND SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESEN TATIVE. FROM THE ORDERS OF THE LOWER AUTHORITIES IT APPEARS THAT AN AMOUNT OF 1,25,00,000/- ACCUMULATED UNDER SECTION 11(2) WAS A DDED BACK UNDER SECTION 11(3) OF THE ACT TO THE TOTAL INCOME ON THE GROUND THAT THE ASSESSEE HAD NOT APPLIED FOR THE PURPOSE FOR WH ICH IT WAS ACCUMULATED. WHILE PASSING REVISIONAL ORDER UNDER SECTION 263 OF THE ACT FOR THE ASSESSMENT YEAR 2005-06 PURSUANT TO THE ORDER OF THE HIGH COURT, ACCORDING TO THE LD. COUNSEL FOR TH E ASSESSEE, THE ACCUMULATED INCOME FOR ASSESSMENT YEAR 2004-05 WAS DEDUCTED FROM THE APPLICATION OF INCOME MADE BY THE TRUST FO R ASSESSMENT YEAR 2005-06 AND HENCE THE VERY SAME ACCUMULATED IN COME CANNOT BE SUBJECT MATTER OF TAXATION. 41. ON THE CONTRARY, SMT. RUBY GEORGE, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT THOUGH THE ASSESSEE CLAIMED THAT THE ACCUMULATED INCOME WAS USED FOR CHARITABLE PURP OSE, THE ASSESSING OFFICER FOUND THAT THE APPLICATION WAS MA DE OUT OF THE DONATION, THEREFORE, THE ASSESSMENT WAS RIGHTLY REO PENED. 21 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 42. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE APPLIED THE INCOME OUT OF DONATION. BUT THE INFORMATION REGARDING DONATION WAS NOT AVAI LABLE BEFORE THE ASSESSING OFFICER. MOREOVER, CONSEQUENT TO THE ORD ER OF THE HIGH COURT, THE PRINCIPAL COMMISSIONER REVISED THE ORDER OF THE ASSESSING OFFICER. IN THOSE CIRCUMSTANCES, THIS TR IBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS R IGHTLY REOPENED THE ASSESSMENT. THEREFORE, THIS TRIBUNAL DO NOT FI ND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY FOR REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT. 43. NOW COMING TO ADDITION OF 1,25,00,000/-, THE ASSESSING OFFICER FOUND THAT THE AMOUNT ACCUMULATED UNDER SEC TION 11(2) OF THE ACT WAS ADDED BACK UNDER SECTION 11(3) OF THE A CT AND THE SAME WAS NOT APPLIED FOR THE PURPOSE FOR WHICH IT W AS ACCUMULATED. THE ASSESSING OFFICER FOUND FROM THE MATERIAL AVAIL ABLE ON RECORD THAT THE APPLICATION OF INCOME WAS MADE FROM THE IN COME WHICH WAS RECEIVED AS DONATION. REFERRING TO EXPLANATION TO SECTION 11(2) OF THE ACT AND THE CBDT CIRCULAR NO.8 DATED 27.08.2002 , THE CIT(APPEALS) CONFIRMED THE ORDER OF THE ASSESSING O FFICER. WHEN 22 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 THE ASSESSEE ACCUMULATED INCOME FOR SPECIFIC PURPOS E, AND DISCLOSING THE SAME IN FORM 10B BUT SUCH ACCUMULATE D INCOME WAS NOT USED FOR THE PURPOSE FOR WHICH THE SAME WAS ACC UMULATED, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSE SSEE IS NOT ELIGIBLE FOR EXEMPTION IN RESPECT OF SUCH ACCUMULAT ED INCOME. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SA ME IS CONFIRMED. 44. IN THE RESULT, THE ASSESSEES APPEAL IN I.T.A. NO.3023/CHNY/2016 IS DISMISSED. 45. NOW COMING TO REVENUES APPEALS FOR ASSESSMENT YEARS 2012-13 AND 2013-14 WHEREIN COMMON ISSUES ARISE FOR CONSIDERATION. 46. THE FIRST ISSUE ARISES FOR CONSIDERATION IS REG ARDING THE ACTIVITY OF THE ASSESSEE. 47. WHILE CONSIDERING THE REVENUES APPEAL FOR ASSE SSMENT YEAR 2010-11, THIS TRIBUNAL FOUND THAT THE ACTIVITY OF T HE TRUST IS EDUCATION AND MEDICAL RELIEF BESIDES OTHER ACTIVITIES. THE A SSESSEE WAS ALSO GRANTED REGISTRATION UNDER SECTION 12AA OF THE ACT. THEREFORE, THIS 23 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH T HE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRM ED. 48. THE NEXT COMMON ISSUE IS WITH REGARD TO CONSTRU CTION OF BUILDING KNOWN AS SIGAPPI AACHI BUILDING AND THE EXPENDITURE INCURRED THEREON. THE REVENUE HAS ALSO RAISED AN I SSUE WITH REGARD TO INCOME FROM KALYANA MANDAPAMS. THIS ISSU E WAS ALSO ELABORATELY CONSIDERED IN THE EARLIER PART OF THIS ORDER. THIS TRIBUNAL FOUND THAT IT IS INCIDENTAL TO THE MAIN ACTIVITY OF THE ASSESSEE. FOR THE SAME REASON, THE ORDER OF THE CIT(APPEALS) IS C ONFIRMED. 49. THE NEXT ISSUE RAISED BY THE REVENUE IS WITH RE GARD TO EXEMPTION CLAIMED BY THE ASSESSEE UNDER SECTION 80G OF THE ACT. 50. WE HEARD SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESENTATIVE AND SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE. FROM THE MATERIAL AVAILABLE ON RECORD IT APPEARS THAT THE ASSESSEE MADE DONATION IN RESPECT OF THE TRUST WHIC H WAS GRANTED APPROVAL UNDER SECTION 80G OF THE ACT, FROM AND OUT OF CURRENT PROFIT. WHEN THE ASSESSEE HAS ADVANCED MONEY TO TH E TRUST WHICH HAS SIMILAR OBJECT AND APPROVED UNDER SECTION 80G O F THE ACT, FROM AND OUT OF CURRENT PROFIT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION 24 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION UNDER S ECTION 11 OF THE ACT. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REAS ON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY TH E SAME IS CONFIRMED. 51. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. 52. NOW COMING TO THE ASSESSEES APPEALS FOR ASSESS MENT YEARS 2012-13 AND 2013-14 IN I.T.A. NOS.3025 & 3026/CHNY/ 2016, THE ONLY COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS IS WITH REGARD TO CLAIM OF DEPRECIATION IN RESPECT OF THE ASSET ON WHICH THE COST WAS ALLOWED AS APPLICATION OF INCOME UNDER SECTION 11 OF THE ACT. 53. WE HEARD SHRI S. SRIDHAR, THE LD.COUNSEL FOR TH E ASSESSEE AND SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESEN TATIVE. IN VIEW OF THE JUDGMENT OF APEX COURT IN CIT V. RAJAST HAN AND GUJARATI CHARITABLE FOUNDATION POONA IN CIVIL APPEAL NO.7186 OF 2014, THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION EVEN ON THE A SSET ON WHICH THE COST WAS ALLOWED AS APPLICATION OF INCOME UNDER SEC TION 11 OF THE ACT. THEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE LOWER AUTHORITIES. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW 25 I.T.A. NOS.2984 TO 2988/CHNY/16 I.T.A. NOS.3021 TO 3026/CHNY/16 ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE DEPRECIATION. 54. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE STA ND ALLOWED. 55. TO SUM UP THE RESULT, THE ASSESSEES APPEALS IN I.T.A. NOS.3021, 3024, 3 025 AND 3026/CHNY/2016 ARE ALLOWED AND ALL OTHER APPEAL S OF THE ASSESSEE ARE DISMISSED, AND ALL THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 19 TH APRIL, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 19 TH APRIL, 2018. KRI. / ,278 98(2 /COPY TO: 1. '12 /ASSESSEE 2. ASSESSING OFFICER 3. 3 :2 () /CIT(A)-17, CHENNAI-34 4. PRINCIPAL CCIT, TAMIL NADU 5. CIT (EXEMPTION), CHENNAI 6. 8; ,2 /DR 7. <' = /GF.