ITO (E) 2(1), MUMBAI V. MANDAR EDUCATION SOCIETY, MUMBAI

ITA 332/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0242 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 21-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Keywords: Depreciation; Capital expenditure
• Section: 32; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO.332 /MUM/2016 (ASSESSMENT YEAR: 2010-11) INCOME TAX OFFICER - (E)2(1) VS. MANDAR EDUCATION SOCEITY ROOM NO. 512, PIRAMAL CHAMBERS LAL BAUG, PAREL MUMBAI 400012 B - 91/93 PACHHIM APTS. K.D. ROAD, NEAR LIRTI COLLEGE DADAR, MUMBAI 400028 PAN AAATM5371Q APPELLANT RESPONDENT APPELLANT BY: SHRI T.A. KHAN RESPONDENT BY: NONE DATE OF HEARING: 04.07.2017 DATE OF PRONOUNCEMENT: 04.07.2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A)-1, MUMBAI DATED 09.11.2015 FOR A.Y. 2010-11. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE THEREFORE DECIDED TO DIS POSE OF THE APPEAL AFTER HEARING THE LEARNED D.R. 2. WE NOTED THAT THE ONLY ISSUE INVOLVED IN THIS APPEA L RELATES TO THE CLAIM OF DEPRECIATION BY THE ASSESSEE SOCIETY UNDER SECTION 32 OF THE INCOME TAX ACT. 3. THE FACTS WHICH WE NOTED ARE THAT THE ASSESSEE HAS CLAIMED DEPRECIATION OF ` 1,35,77,333/- IN RESPECT OF THE ASSETS FOR WHICH AS SESSEE HAS CLAIMED CAPITAL EXPENDITURE AS APPLICATION WHIL E COMPUTING INCOME UNDER THE INCOME TAX ACT. THE AO DID NOT ALLOW THE DEPRECIATION IN VIEW OF THE FACT THAT THE ASSESSEE HAD ALREADY BEEN ALLOWED EXEMPTION UNDER SECTION 11 WHEN THESE ASSETS WERE PURCHASED AND ALL OWING DEPRECIATION WILL TANTAMOUNT TO DOUBLE DEDUCTION. ITA NO. 332/MUM/2016 MANDAR EDUCATION SOCEITY PAGE 2 OF 4 4. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE AND DIRECTED THE AO TO ALLOW DEDUCTION TO THE ASSESSEE FOR THE SAID DEPRECIATION. 5. THIS ISSUE, IN OUR OPINION, IS NO MORE RES INTEGRA IN VIEW OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. INSTITUTE OF BANKING AND PERSONNEL SELECTION (2003) 264 ITR 110. NOT ONLY THIS, THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF DIT VS. FRAMJEE CAWASJI INSTITUTE (1993) 190 CTR 463 (BOM) HAS ALSO TAKEN SIMILAR VIEW. THE HON'BLE DELHI HIGH COURT ALSO IN THE CASE OF DI T VS. VISHWA JAGRITI MISSION 81 DTR (DEL) 195 HAS TAKEN SIMILAR VIEW. RE CENTLY THE HON'BLE BOMBAY HIGH COURT, AGAIN IN THE CASE OF DIT VS. SHR I VILE PARLE KELAVANI MANDAL (2015) 58 TAXMANN.COM 288, HAS ON THE SAME I SSUE HELD AS UNDER:- AS FAR AS QUESTION NO.4 IS CONCERNED, THIS COURT H AS REPEATEDLY HELD THAT THERE IS NOTHING LIKE DOUBLE DEDUCTION. WHEN T HE ASSESSEE HAS ACQUIRED AN ASSET FROM THE INCOME OF THE TRUST AND THEREAFTER THE AMOUNT THAT IS CLAIMED IS THE DEPRECIATION ON THE U SE OF THE ASSETS, SUCH DEPRECIATION CLAIM DOES NOT MEAN DOUBLE DEDUCT ION. THE DEDUCTION EARLIER CLAIMED IS TOWARDS TOWARDS APPLIC ATION OF FUNDS OF THE TRUST FOR ACQUIRING ASSETS. THE LATTER IS DEPRE CIATION AND IT IS PERMISSIBLE DEDUCTION CONSIDERING THE USE OF THE AS SETS. THIS HAS BEEN CLARIFIED REPEATEDLY BY THIS COURT. IF ANY REF ERENCE IS REQUIRED THEN THE CASE OF CIT V. INSTITUTION OF BANKING (IBP S) (2003) 264 ITR 110/131 TAXMAN 386 (BOM) IS ENOUGH. 6. NO CONTRARY DECISION WAS BROUGHT TO OUR KNOWLEDGE. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A ). 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JULY, 2017. SD/ - SD/ - (SANDEEP GOSAIN) (P.K. BANSAL) JUDICIAL MEMBER VICE PRESIDENT MUMBAI, DATED: 4 TH JULY, 2017 ITA NO. 332/MUM/2016 MANDAR EDUCATION SOCEITY PAGE 3 OF 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -1, MUMBAI 4. THE CIT - EXEMPTIONS, MUMBAI 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.