ITO, New Delhi V. M/s. J.K. Foundation for Human Development, New Delhi

ITA 3381/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5916 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 27-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Charitable institution
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NO S . 3381 & 3382/DEL/2015 A.Y RS . : 2 0 10 - 11 & 2011 - 12 ITO(3), WARD 1(4), ROOM NO. 2421, PRATYAKSH KAR BHAWAN, 24 TH FLOOR, E-2 BLOCK, DR. SP MUKHERJEE CIVIC CENTRE, NEW DELHI 110 002 VS. M/S JK FOUNDATION FOR HUMAN DEVELOPMENT A-2, LSC MASJID MOTH, GREATER KAILASH-II, NEW DELHI 110 048 (ASSESSEE) (RESPONDENT) REVENUE BY : SH. ATIQ AHMED, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THESE APPEALS AGAINST THE RESPECTIVE IMPUGNED ORDERS BOTH DATED 11.03.2015 OF THE LD. CIT(A)-40, NEW DELHI RELEVANT TO ASSESSMENT YEARS 2 2010-11 & 2011-12. SINCE THE ISSUES INVOLVED IN TH ESE APPEALS ARE COMMON AND IDENTICAL, EXCEPT THE DIFFER ENCE IN FIGURE, HENCE, THE SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 3381/DEL/2015 (AY 2010-11). 2. THE FOLLOWING ARE THE COMMON GROUNDS RAISED IN B OTH THE APPEALS, EXCEPT THE DIFFERENCE IN FIGURE. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS ERRED IN ALLOWING THE CLAIM OF DEPRECIATION OF RS. 41,87,941/- TO THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE HAD CLAIMED THE AMOUNT INCURRED ON PURCHASE OF ASSETS IN EARLIER YEARS AS APPLICATION OF INCOME, ON WHICH DEPRECIATION WILL BE TANTAMOUNT TO DOUBLE DEDUCTION. 3 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS ERRED IN ALLOWING THE CLAIM OF DEPRECIATION OF RS. 41,87,941/- TO THE ASSESSEE IN VIEW OF THE RECENT DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF DIT(E) VS. CHARANJIV CHARITABLE TRUST DATED 18.3.2014. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR AMEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 3. THE BRIEF FACTS OF THE CASE ARE THAT RETURN OF I NCOME IN THIS CASE WAS FILED ON 22-09-2010 DECLARING NIL INC OME. THE RETURN WAS PROCESSED U/S. 143(1) OF THE I.T. AC T, 1961 ON 7.4.2011. THE CASE OF THE ASSESSEE-SOCIETY WAS SELECTED FOR SCRUTINY UNDER COMPULSORY CATEGORY THR OUGH CASS AS PROVIDED IN ACTION PLAN FOR FY 2011-12. NO TICE U/S. 143(2) OF THE ACT DATED 12.9.2011 WAS ISSUED A ND SERVED UPON ASSESSEE. IN RESPONSE TO THE STATUTORY NOTICE, 4 THE AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS FRO M TIME TO TIME AND FILED THE REQUISITE DETAILS / INFORMATI ON AS CALLED BY THE AO. THE ASSESSEE-SOCIETY WAS REGISTE RED WITH THE REGISTRAR OF SOCIETIES VIDE REGISTRATION N O. S- 27839 DATED 01.5.1995. AS PER MOA, THE MAIN AIMS A ND OBJECTS OF THE ASSESSEE SOCIETY ARE TO INVEST IN HU MAN RESOURCE DEVELOPMENT PROGRAMME AND FACILITIES THAT BRING ALL AROUND DEVELOPMENT OF HUMAN BEINGS, DIRECTLY OR INDIRECTLY ESPECIALLY IN THE AREAS OF EDUCATION, ME DICAL, ART & CULTURAL, SPORTS AND GAMES AND TO DO ALL SUCH LA WFUL THINGS, EITHER BY ITSELF OR IN CONJUNCTION WITH OT HER BODIES WITH SIMILAR OBJECTIVES, AS AREA INCIDENTAL OR COND UCTIVE TO THE ATTAINMENT OF THE ABOVE OBJECTS. THE ASSESSEE- SOCIETY REGISTERED U/S.12A(A) OF THE ACT VIDE ORDER DATED 28.8.1995. THE SOCIETY WAS ALSO GRANTED EXEMPTION U/S. 80G OF THE ACT, VIDE ORDER DATED 24.11.2008 FOR THE PERIOD FROM 1.4.2008 TO 31.3.2011. AO OBSERVED THAT THE O BJECTS ARE CHARITABLE WITHIN THE MEANING OF SECTION 2(15) OF THE ACT, THE BENEFIT OF SECTION 11 & 12 WAS ALLOWED TO THE 5 ASSESSEE AND ACCORDINGLY, THE RETUNED INCOME WAS ACCEPTED AND ASSESSED AT RUPEES NIL AND DEFICIT WAS NOT ALLOWED TO BE CARRIED FORWARD VIDE ORDER DATED 05.03.2013. AGAINST THE AFORESAID ASSESSMENT ORDER , ASSESSEE APPEALED BEFORE THE LD. CIT(A)-40, NEW DEL HI WHO VIDE HIS IMPUGNED ORDER DATED 11.03.2015 HAS ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL B EFORE THE TRIBUNAL. 4. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAM E, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEAR ED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APP LICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEF UL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO 6 THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESE NT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T RECORDS, ESPECIALLY THE IMPUGNED ORDER. WE FIND THA T LD. CIT(A) IN HIS ORDER HAS OBSERVED THAT ASSESSEE L IKE CHARITABLE OR RELIGIOUS INSTITUTION AND THEREFORE BY APPLYING THE DECISION OF THE HONBLE DELHI HIGH CO URT IN THE CASE OF DIT(EXEMPTION) VS. INDRAPRASTHA CANCER SOCIETY IN ITA NO. 240, 348, 406, 463 AND 464/2014 VIDE ORDER DATED 18.11.2014, HAS ALLOWED THE APPEAL OF T HE ASSESSEE. WE FURTHER NOTE THAT HONBLE DELHI HIGH COURT IN THE CASE OF DIT(EXEMPTION) VS. INDRAPRASTHA CANCER SOCIETY (SUPRA) HAS HELD THAT ASSESSEE IS ELIGIBLE FOR DEPRECIATION IN THE CASE OF CHARITABLE OR RELIGIOU S INSTITUTION ALSO. THEREFORE, WE DO NOT FIND ANY INF IRMITY IN THE ORDER OF THE LD. CIT(A), HENCE, WE UPHOLD THE S AME AND REJECT THE GROUND NO. 1 RAISED BY THE REVENUE. 6.1 AS REGARDS GROUND NO. 2 IS CONCERNED, WE FIND T HIS GROUND IS WRONG RAISED BY THE REVENUE, BECAUSE THE DECISION CITED THEREIN I.E. DIT(E) VS. CHARANJIV CH ARITABLE TRUST DATED 18.3.2014 WAS NOT RELIED UPON BY THE LD . CIT(A) IN HIS ORDER WHILE ALLOWING THE APPEAL OF T HE ASSESSEE. HENCE, THIS GROUND OF APPEAL IS REJECTED . 7 6.2 FOLLOWING THE CONSISTENT VIEW AS TAKEN BY US IN ASSESSMENT YEAR 2010-11, AS AFORESAID, THE IDENTICA L GROUNDS RAISED BY THE REVENUE IN RESPECT OF ASSESSM ENT YEAR 2011-12 ARE ALSO REJECTED. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE DEPARTMENT STAND DISMISSED. ORDER PRONOUNCED ON 21/06/2018. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 21/06/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES