DDIT (E) I(1), MUMBAI V. MANDAR EDUCATION SOCIETY, MUMBAI

ITA 3656/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92470 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Keywords: Depreciation; Capital expenditure
• Section: 143(3); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI G.S PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 3656/MUM/2013 ASSESSMENT YEAR: 2008-09 DDIT (E) - I(1) R. NO. 504 PIRAMAL CHAMBERS 5 TH FLOOR, PAREL MUMBAI 400 012 VS. MANDAR EDUCATION SOCIETY B 91-93 PASCHIM APARTMENTS OPP. KIRTI COLLEGE R. D. ROAD, DADAR, MUMBAI 400 028 PAN:AAATM5371P (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI PAWAN KU MAR BEERLA DATE OF HEARING : 07 .0 5 .2015 DATE OF PRONOUNCEMENT : 07.05.2015 O R D E R PER AMIT SHUKLA, JM: THIS APPEAL HAS BEEN FILED BY THE REVENUE, AGAINST THE ORDER OF THE DATE 27.02.2013 PASSED BY LD. CIT(A)-1, MUMBAI FOR QUANTUM OF ASSESSMENT U/S 143(3) FOR THE A.Y. 2008-09 ON THE F OLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING THE AO TO ALLOW T HE CLAIM OF DEPRECIATION AMOUNTING TO RS.12,76,776/- WHICH AMOU NTS TO ALLOWANCE OF DOUBLE DEDUCTION AS THE CAPITAL EXPENDITURE INCU RRED ON THESE ASSETS HAS ALREADY BEEN ALLOWED AS APPLICATION OF INCOME. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW THE CLAIM OF DEPRECIATION AMOUNTING TO RS.12,76,776/- RELYING ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED IN 264 ITR 110 (BOM) I GNORING THE RATIO OF JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF ESCORTS LTD. VS. UNION OF INDIA (199 ITR 43) WHEREIN HONBLE SUPREME COURT HAS HELD ITA NO. 3656/MUM/2013 ASSESSMENT YEAR: 2008-09 2 THAT DOUBLE DEDUCTION CANNOT BE PRESUMED IF THE SAM E IS NOT SPECIFICALLY PROVIDED BY LAW, IN ADDITION TO NORMAL DEDUCTION. 2. AT THE OUTSET, IT HAS BEEN ADMITTED BY BOTH THE PARTIES THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED IN 264 ITR 110. 3. THE ASSESSEES INCOME IS COMPUTED U/S 11 AND ACC ORDINGLY EXEMPTION HAS BEEN COMPUTED IN ACCORDANCE WITH THE PROVISION OF SECTION 11. THE ASSESSING OFFICER HAS DISALLOWED TH E CLAIM OF DEPRECIATION OF RS.12,76,776/- ON THE GROUND THAT I T AMOUNTS TO DOUBLE DEDUCTION AS THE CAPITAL EXPENDITURE INCURRED ON TH ESE ASSETS HAS ALREADY BEEN ALLOWED AS APPLICATION OF INCOME. THE LD. CIT(A) HAS DELETED THE SAID ADDITION FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT. 4. AFTER GOING THROUGH THE IMPUGNED ORDER AND ISSUE INVOLVED, WE FIND THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SERVICES (SUPRA) HAS CLEARLY HELD THAT THE ASSESSEE CAN CLAIM DEPRECIATION ON ASSETS, THE COST OF WHICH HAD BEEN ALLOWED AS APPLICATION OF INCOME U/S 11 OF THE ACT. THIS DECIS ION OF HONBLE BOMBAY HIGH COURT HAS BEEN CONSISTENTLY BEING FOLLOWED BY THE VARIOUS TRIBUNALS AND THIS PROPOSITION IS ALSO COVERED BY THE DECISIO N OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MARKET COMMITTEE PEEPLI REPORED IN (2011) 330 ITR 16 . THUS, THERE IS NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN ALLOWING DEPRECIATON AND ACCORDIN GLY, GROUND RAISED BY THE REVENUE IS DISMISSED. ITA NO. 3656/MUM/2013 ASSESSMENT YEAR: 2008-09 3 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF MAY, 2015. SD/- SD/- (G.S PANNU) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 07.05.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH // TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.