ACIT (E) 2(1), MUMBAI V. MANDKE FOUNDATION, MUMBAI

ITA 3837/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3528 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAV
• Assessee Lawyers: JITENDRA B SANGHAVI
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 3837/MUM/2015 (ASSESSMENT YEAR : 2009-10) THE ACIT 2(1), R.NO.510, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400012 ... APPELLANT VS. M/S. MANDKE FOUNDTION RAO SAHEB ACHUT RAO PATWARDHAN MARG, FOUR BUNGLOWS, ANDHERI(W), MUMBAI 400 053 PAN:AAATM 4557G .... RESPONDENT APPELLANT BY : SHRI VISHWAS JADHAV RESPONDENT BY : SHRI JITENDRA B. SA NGHAVI DATE OF HEARING : 08/12/2015 DATE OF PRONOUNCEMENT : 29/02/2016 ORDER THE CAPTIONED APPEAL IS PREFERRED BY THE REVEN UE AND IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 27/03/ 2015 OF CIT(A)-7, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2009-10, WHICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE ASSESSING OFFICE R DATED 05/12/2011 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 196 1( IN SHORT THE ACT). 2 ITA NO. 3837/MUM/2015 (ASSESSMENT YEAR : 2009-10) 2. IN THIS APPEAL, ALTHOUGH THE REVENUE HAS RAISED MULTIPLE GROUNDS OF APPEAL, THE ESSENTIAL DISPUTE REVOLVES AROUND TW O ISSUES, WHICH SHALL BE DEALT WITH IN SERIATIM. 3. BRIEFLY PUT, THE RELEVANT FACTS ARE THAT THE RES PONDENT ASSESSEE IS A TRUST REGISTERED UNDER SECTION12A OF THE ACT AND IS ENGAGED IN RUNNING MULTI-SPECIALITY TERTIARY CARE HOSPITAL WIT H SPECIAL EMPHASIS ON CARDIOLOGY, REHABILITATION, ETC. THE ASSESSING OFF ICER FINALIZED THE ASSESSMENT UNDER SECTION 143(3) AT A LOSS/DEFICIT O F RS.10,79,22,100/- AS AGAINST THE RETURNED DEFICIT/LOSS OF RS.42,56, 37,595/-. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DE NIED THE ASSESSEES CLAIM FOR DEPRECIATION ON ASSETS ON THE GROUND THAT IT AMOUNTED TO DOUBLE DEDUCTION I.E. FIRST BY WAY OF APPLICATION O F INCOME IN YEAR OF PURCHASE AND SECOND BY WAY OF THE CLAIM OF DEPRECIA TION. THIS CLAIM HAS SINCE BEEN ALLOWED BY THE CIT(APPEALS) FOLLOWIN G THE RATIO OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SECTION, 264 ITR 110 (BOM). THIS ACTION OF THE CIT(APPEALS) HAS BEEN DISPUTED BY THE REVENU E BEFORE ME. 4. AT THE TIME OF HEARING , LD. DEPARTMENTAL REPRES ENTATIVE FOR THE REVENUE QUITE FAIRLY POINTED OUT THAT THE DECISION OF THE CIT(APPEALS) WAS BASED ON THE BINDING JUDGMENT OF THE HONBLE JU RISDICTIONAL HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SELECTION (SUPRA). FURTHER, THE LD. REPRESENTATIVE FOR THE ASSESSEE AL SO POINTED OUT THAT THE FOLLOWING DECISIONS ALSO SUPPORT THE PROPOSI TION APPROVED BY THE HONBLE BOMBAY HIGH COURT:- 3 ITA NO. 3837/MUM/2015 (ASSESSMENT YEAR : 2009-10) 1. ITO VS. BAI KABIBAI & HANSRAJ MORAJI CHARITY TR UST, ITA NO.5842/M/2011. 2. DIT VS. FRAMJEE CAWASJEE INSTITUTE- 49 TAXMANN. COM 22 (BOMBAY HC) 3. ACIT VS. SHRI ADICHUNCHANAAGIRI SHIKSHANA TRUST , 19 ITR (T) 828 (4) CIT VS. MARKET COMMITTEE 330 ITR 16 (P&H, HC ) FOR THE REASON THAT THE DECISION OF THE CIT(APPEALS ) IS BASED ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT, NO INTER FERENCE IS CALLED FOR AND ACCORDINGLY, REVENUE FAILS ON THIS ISSUE. 5. THE SECOND ISSUE RAISED BY THE REVENUE IS WITH R EGARD TO THE DECISION OF THE CIT(APPEALS) IN DIRECTING THE ASS ESSING OFFICER TO ALLOW CARRY FORWARD OF THE CURRENTS ASSESSED DEFICIT FOR SET-OFF IN THE SUBSEQUENT YEARS. 6. IN MY CONSIDERED VIEW, THE SAID DIRECTION OF THE CIT(APPEALS) IS VERY MUCH IN LINE WITH THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL SELEC TION (SUPRA) AND ON THIS ASPECT ALSO NO ERROR CAN BE FOUND WITH THE DE CISION OF THE CIT(APPEALS), WHICH I HEREBY AFFIRM. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/02/2016. SD/- (G.S. PANNU) ACCOUN TANT MEMBER MUMBAI, DATED 29/02/2016 4 ITA NO. 3837/MUM/2015 (ASSESSMENT YEAR : 2009-10) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI VM , SR. PS