ITO (E) 2(2), MUMBAI V. PARMESHWARIDEVI GORDHANDAS CHARITABLE GTRUST, MUMBAI

ITA 4117/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1521 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 15-06-2016
• Court: TRIBUNAL
• Department Lawyers: S R KIRTANE
• Assessee Lawyers: RAHUL K HAKANI
• Keywords: Depreciation; Charitable institution; Question of law
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 4117 / MUM/20 1 6 ( ASSESSMENT YEAR : 2008 - 09 ) ITO (E) - 2(2), MUMBAI VS. M/S. PARMESHWARIDEVI GORDHANDAS GARODIA CHARITABLE TRUST, 153, GARODIA NAGAR, GHATKOPAR ( E), MUMBAI - 400077 PAN/GIR NO. AAATP0083C APPELLANT ) .. RESPONDENT ) REVENUE BY SHRI S.R.KIRTANE ASSESSEE BY SHRI RAHUL K HAKANI DATE OF HEARING 20 / 12 /2016 DATE OF PRONOUNCEME NT 21 / 12 /2016 / O R D E R PER R.C.SHARMA (A.M) : T HIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2008 - 09. 2. IN THIS APPEAL, REVENUE IS AGGRIEVED FOR DELETING DISALLOWANCE OF DEPRECIATION OF FIXED ASSETS OF RS.24,81,427/ - . 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A PUBLIC CHARI TABLE TRUST CONSTITUTED AS PER TH E TRUST DE ED DATED 11TH OCTOBER,1971. IT IS REGISTERED UNDER THE BOMBAY PUBLIC TRUSTS ACT, 1950. IT IS ALS O REGISTERED' U/S. 12A OF THE INCOME TAX ACT, 1961. THE OBJECTS OF THE TRUST ARE AS STATED IN CLAUSE 3 OF THE TRUST DEED WHICH ARE SUMMARIZED AS UNDER: A. EDUCATION ITA NO. 4117/MUM/2016 M/S. PARMESHWARIDEVI GORDANDAS GARODIA CHARITABLE TRUST 2 B. RELIEF OF POVERTY OR DISTRESS C. MEDICAL RELIEF D. ANY OTHER OBJECT WHICH IS RECOGNIZED BY LAW AS CHARITABLE AND / OR FOR PUBLIC. 5. DURING THE COURSE OF ASSESSMENT, AO DISALLOWED ASSESSEES CLAIM OF DEPRECIATION. 6. BY THE IMPUGNED ORDER CIT(A) DELETED THE SAME AFTER OBSERVING AS UNDER: - THE GROUND NO. 1 & 2 OF APPEAL ARE REGARDING THE D ISALLOWANCE OF DEPRECIATION CLAIMED BY THE ASSESSE E AMOUNTING TO RS.24,81,427/ - . THE AO STATED THAT THE ASSESSE E TRUST HAS CLAIMED DEPRECIATION OF RS.24,81 ,427/ - ON ITS FIXED ASSETS AND THE EXPENDITURE INCURRED ON ACQUIRING THESE ASSETS HAS ALREADY BEEN C LAIMED AS APPLICATION OF INCOME. HE FURTHER STATED THAT ALLOWING THE DEPRECIATION OF THE SAME ASSETS WILL AMOUNT TO GRANTING OF DOUBLE DEDUCTION. THE AO RELIED UPON THE DECISIONS OF HON'BLE SUPREME COURT IN THE CASE OF ESCORTS LIMITED VS. UNION BANK OF IND IA, 199 ITR (SC) AND FURTHER STATED THAT DECISION OF HON'BLE HIGH COURT IN CIT V. INSTITUTE OF BANKING PERSONN~1 SELECTION 264 ITR 110 (BAN) IS NOT APPLICABLE. 7. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT IN ASSESSEES OWN CASE IN THE PRECEDING ASSESSMENT YEAR, SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUNAL BY FOLLOWING THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING 264 ITR 110. WE ALSO FOUND THAT AGAINST THE ORDER OF TRIBUNAL DATED 06/12/2013, THE DEPARTMENT HAS APPROACHE D TO THE BOMBAY HIGH COURT AND BOMBAY HIGH COURT VIDE ORDER DATED 12/09/2014 DECLINED SUBSTANTIAL QUESTION OF LAW. ITA NO. 4117/MUM/2016 M/S. PARMESHWARIDEVI GORDANDAS GARODIA CHARITABLE TRUST 3 8. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR DELETING THE DISALLOWANCE OF DEPRECIATION. 9. IN THE RESUL T, APPEAL OF THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 21 / 12 /2016 S D/ - ( R.C.SHARMA ) ACCOUNTANT MEMBER MUMBAI ; DATED 21 / 12 /201 6 KARUNA SR. PS COPY OF THE OR DER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//