CHILDREN FILM SOCIETY (INDIA), MUMBAI V. ITO 11(1)(1), MUMBAI

ITA 4440/MUM/2012

• Counselvise Citation: 444019914 RSA 2012
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 19-06-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 02-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: B V JHAVERI
• Keywords: Depreciation; Charitable institution

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI R.C. SHARMA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 444 0 /M/2012 ASSESSMENT YEAR: 2005 - 06 M/S. CHILDREN FILM SOCIETY (INDIA), FILM DIVISION COMPLEX, 24, D R. G. DESHMUKH MARG, MUMBAI - 400026 PAN: AAATC5452C VS. INCOME TAX OFFICER, 11(1)(1) MUMBAI - 400051 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B.V. JHAVERI, A.R. REVENUE BY : SHRI PREMANA ND. J. D.R DATE OF HEARING : 10.12. 201 4 DATE OF PRONOUNCEMENT : 14.01. 2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 02.03.2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [ (HEREINAFTER REFERRED TO AS CIT(A)] RELEVANT TO ASSESSMENT YEAR 2005 - 06. 2. OUT OF THE VARIOUS GROUNDS TAKEN BY THE ASSESSEE, THE ASSESSEE HAS PRESSED ONLY GROUND NO.3 OF THE APPEAL VIDE WHICH THE ASSESSEE HAS AGITATED THAT THE LD. CIT(A) HAS NOT CONSID ERED THE CLAIM OF DEPRECIATION ON FILMS WHICH WAS PART OF THE ACCOUNTS AS SCHEDULE 1 CORPUS/CAPITAL FUNDS. IT HAS BEEN CONTENDED THAT SUCH A CLAIM OF THE ASSESSEE HAS BEEN ACCEPTED BY THE ASSESSING OFFICER FOR ASSESSMENT YEAR 2003 - 04. 3. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE DECISION OF THE TRIBUNAL DATED 03.06.14 PASSED IN AN APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2003 - 04 AS WELL AS THE YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 2005 - 06. THE RELEV ANT ISSUE FOR THE YEAR ITA NO.4440/M/2012 M/S. CHILDREN FILM SOCIETY (INDIA) 2 UNDER CONSIDERATION HAS ALREADY BEEN CONSIDERED AND DECIDED BY THE TRIBUNAL VIDE COMMON ORDER DATED 03.06.14 PASSED IN ITA NO.3478/M/2012 FOR ASSESSMENT YEAR 2003 - 04 AND ITA NO.3479/M/2012 FOR ASSESSMENT YEAR 2005 - 0 6. THE TRIBUNAL V IDE SAID ORDER RELYING UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SELECTION [2003] 264 ITR 110 (BOM.) HAS HELD THAT CHARITABLE INSTITUTION IS ENTITLED TO SUCH DEPRECIATION EVEN IF THE EXPENDIT URE WAS IN CAPITAL FOLD AND WAS EARLIER ALLOWED AS APPLICATION OF INCOME. THE LD. CIT(A) IN THE IMPUGNED ORDER HAS OBSERVED THAT ASSESSEE EVEN DID NOT CLAIM THE SAID EXPENDITURE AS APPLICATION OF INCOME IN EARLIER YEARS. THEREFORE THE CASE OF THE ASSESSE E WAS RATHER ON A STRONG FOOTING. IT HAS BEEN HELD BY THE TRIBUNAL THAT FOR THE ASSESSMENT YEAR 2003 - 04 , AFTER CONSIDERING THE DEPRECIATION CLAIM , THE INCOME OF THE ASSESSEE WOULD BECOME NIL AND THUS NO AMOUNT WOULD BE LEFT FOR DEDUCTION AS STATUTORY 15% ACCUMULATION OR AS APPLICATION OF FUND. THE TRIBUNAL , AFTER RELYING UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX (EXEMPTION) VS. GKR CHARITIES [2013] 32 TAXMAN.COM 208 (BOM) , HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. SINCE THE ISSUE HAS ALREADY BEEN DECIDED IN THE CASE OF THE ASSESSEE IN REVENUES APPEAL, HENCE, WE DIRECT THE AO TO CONSIDER THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATED 03.06.14. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14.01. 201 5 . SD/ - SD/ - ( R.C. SHARMA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 14.01. 201 5 . * KISHORE , SR. P.S. ITA NO.4440/M/2012 M/S. CHILDREN FILM SOCIETY (INDIA) 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.