The DCIT (Exemptions), Circle-2, Ahmedabad V. Sarvoday Kelvani Mandal, Rajkot

ITA 469/AHD/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9894 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 23-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Capital asset; Depreciation; Charitable institution; Cost of acquisition; Benefit of exemption
• Section: 12; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA.NO.469/AHD/2017 / ASSTT. YEAR: 2012-2013 DCIT (EXEMPTIONS) CIR.2, AHMEDABAD. VS. SARVODAY KELVANI MANDAL YOGIDHAM, GURUKUL KALAWAD ROAD RAJKOT 360005. PAN : AAATS 9251 K ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI LALIT P. JAIN, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 11/12/2018 / DATE OF PRONOUNCEMENT: 11/12/2018 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF LD.CIT(A)-9, AHMEDABAD DATED 6.12.2016 PASSED THE ASSTT.YEAR 201 2-13, BY WHICH, THE REVENUE IS AGGRIEVED WITH THE ALLOWANCE OF DEPRECIA TION AMOUNTING TO RS.4,58,18,965/- BY THE LD.CIT(A). 2. SOLE ISSUE INVOLVED IN THIS APPEAL IS, WHETHER D EPRECIATION ON CAPITAL ASSET COULD BE DENIED TO THE ASSESSEE ON THE GROUND THAT IT HAS ALREADY CLAIMED DEDUCTION UNDER SECTION 11 WHILE CLAIMING INCOME AS APPLIED FOR CHARITABLE PURPOSE. ACCORDING TO THE REVENUE, SINCE ASSESSEE HAS ALREADY CLAIMED DEDUCTION OF THE INCOME, WHEN IT HAS ACQUIRED THE A SSET, UNDER THE HEAD APPLICATION OF INCOME FOR CHARITABLE PURPOSE. IF ON THAT VERY AMOUNT, THE ITA NO.469/AHD/2017 2 DEPRECIATION IS BEING ALLOWED, THEN IT AMOUNTS TO D OUBLE DEDUCTION. ON THE OTHER HAND, THE CASE OF THE ASSESSEE IS THAT THIS A SPECT HAS FALLEN FOR CONSIDERATION BEFORE THE HONBLE BOMBAY HIGH COURT, GUJARAT HIGH COURT AS WELL AS HONBLE SUPREME COURT AND IT HAS BEEN HELD THAT INCOME OF THE CHARITABLE INSTITUTION IS TO BE COMPUTED ON COMMERC IAL PRINCIPLE AND EVEN IF THE ASSESSEE HAS CLAIMED APPLICATION OF INCOME FOR CHARITABLE PURPOSE ON ACQUISITION OF THESE ASSETS, IT IS ENTITLED FOR DEP RECIATION ALSO. 3. THOUGH IN RESPONSE TO THE NOTICE OF HEARING, NON E HAS COME PRESENT ON BEHALF OF THE ASSESSEE WITH THE ASSISTANCE OF THE L D.DR, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THERE IS NO GRIEVANC E THAT THE ASSESSEE IS A CHARITABLE INSTITUTION REGISTERED UNDER SECTION 12 OF THE INCOME TAX ACT AND ENTITLED FOR BENEFIT OF EXEMPTION UNDER SECTIONS 11 AND 12 OF THE ACT. THE LD.CIT(A) HAS HELD THAT THE ASSESSEE IS ENTITLED FO R DEPRECIATION OF THOSE ASSETS WHOSE ACQUISITION COST WAS CLAIMED UNDER THE HEAD APPLICATION OF INCOME FOR CHARITABLE PURPOSE. FINDING RECORDED BY THE LD.CI T(A) IS BASED UPON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SHETH MANILAL RANCHHODDAS VISHRAM BHAVAN TRUST, 198 ITR 5 98 (GUJ). WE ARE OF THE VIEW THAT THE LD.CIT(A) HAS PLACED HIS RELIANCE RIGHTLY ON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT, AND THEREFORE, N O INTERFERENCE IS CALLED IN THE ORDER OF THE LD.CIT(A). ACCORDINGLY, THIS APPE AL IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 11 TH DECEMBER, 2018 AT AHMEDABAD. SD/ - (AMARJIT SINGH) ACCOUNTANT MEMBER SD/ - (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 11/12/2018