DDIT (E) II(2), MUMBAI V. NATIONAL INSTITUTE OF CONSTRUCTION MANAGEMENT AND RESEARCH ( NICMAR), MUMBAI

ITA 4783/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8188 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 15-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMARSR
• Keywords: Depreciation; Charitable institution
• Section: 12A

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -BBENCH MUMBAI , , , BEFORE S/SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND RAMLAL NEGI, JUDICIAL MEMBER ./ I.T.A./4783/MUM/2014 , / ASSESSMENT YEAR: 2008-09 ASSTT. DIRECTOR INCOME TAX ( E ) - II(2) 5TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012. VS. M/S. NATIONAL INSTITUTE OF CONSTRUCTION MANAGEMENT AND RESEARCH (NICMAR) WALCHAND CENTRE, WALCHAND TERRACE, TARDEO ROAD, MUMBAI-400 034. PAN:AAATN 1348 J ( / APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI SUMAN KUMAR-SR.-DR ASSESSEE BY: S/SHRI FIROZE B. ANDHYARUJINA/ T.K. DOCTORS / DATE OF HEARING: 27/11/2017 / DATE OF PRONOUNCEMENT:27.11.2017 , 1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) . . . . . . . . / PER B.R. BASKARAN, AM - THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 15/04/2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-I, MUMBAI AND IT RELATES TO ASSESSMENT YEAR 2008-09. T HE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD. COMMISSIONER O F INCOME TAX(APPEALS) IN HOLDING THAT THE ASSESSEE IS ENTITLED TO CLAIM DEPR ECIATION ON ASSETS, COST OF WHICH HAS ALREADY BEEN ALLOWED AS DEDUCTION AS APPL ICATION OF INCOME. THE REVENUE IS ALSO AGGRIEVED BY THE DECISION OF LD. CO MMISSIONER OF INCOME TAX(APPEALS) IN HOLDING THAT THE EXCESS OF EXPENDIT URE OVER INCOME (DEFICIT) CAN BE CARRIED-FORWARD AND TREATED AS APPLICATION O F INCOME IN THE SUBSEQUENT YEARS. 2. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. T HE ASSESSEE IS A CHARITABLE TRUST AND REGISTERED UNDER SECTION 12A O F THE ACT. IT FILED ITS RETURN OF INCOME CLAIMING DEDUCTION U/S.11 OF THE A CT. THE ASSESSING OFFICER 4783/M/14-NICMAR 2 NOTICED THAT THE ASSESSEE HAS CLAIMED RS.101.87 LAK HS AS DEPRECATION ON ASSETS, THE COST OF WHICH HAS ALREADY BEEN ALLOWED AS APPLICATION OF INCOME. THE ASSESSING OFFICER, BY FOLLOWING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ESCORTS LTD. VS. UOI (199 ITR 143), HE LD THAT THE ASSESSEE CANNOT BE ALLOWED DOUBLE DEDUCTION. ACCORDINGLY, HE DISALLOWED THE CLAIM OF DEPRECIATION. THE ASSESSEE HAD ALSO CLAIMED DEDUCTI ON OF DEFICIT AMOUNT (EXCESS OF EXPENDITURE OVER INCOME) CARRIED FORWARD FROM EARLIER YEAR AS APPLICATION OF INCOME. THE ASSESSING OFFICER DISALL OWED THE SAME ON THE REASONING THAT THE SAME WOULD AMOUNT TO DOUBLE DEDU CTION. 3. IN THE APPELLATE PROCEEDINGS THE LD. COMMISSIONER O F INCOME TAX(APPEALS) GRANTED RELIEF TO THE ASSESSEE ON BOTH THE ISSUES BY FOLLOWING THE DECISION OF THE HON'BLE JURISDICTIONAL BOMBAY H IGH COURT RENDERED IN THE CASE OF INSTITUTE OF BANKING PERSONNEL (264 ITR 110). AGGRIEVED BY THE DECISION RENDERED BY THE LD. CIT(A), THE REVENUE HA S FILED THIS APPEAL BEFORE US. 4. WE NOTICE THAT THE LD. COMMISSIONER OF INCOME TAX(A PPEALS) HAS FOLLOWED THE BINDING DECISION OF THE HON'BLE JURISD ICTIONAL BOMBAY HIGH COURT RENDERED IN THE CASE OF INSTITUTE OF BANKING PERSONNEL (SUPRA) WHILE DECIDING BOTH THE ISSUES IN FAVOUR OF THE ASSESSEE. SINCE THE DECISION OF HON'BLE JURISDICTIONAL BOMBAY HIGH COURT HAS BEEN F OLLOWED, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS) . WE ALSO NOTICE THAT THE ISSUE RELATING TO DEPRECIATION HAS BEEN ADJUDICATED BY THE CO-ORDINATE BENCH OF TH E TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.6088/MUM/2010 DATED 30/03/2012 ( AY -2007-08) BY FOLLOWING THE DECISION OF HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF INSTITUTE OF BANKING PERSONNEL (SUPRA), AND THE SAI D DECISION HAS ALSO BEEN UPHELD BY THE HON'BLE BOMBAY HIGH COURT IN INCOME T AX APPEAL (L) NO.1246 OF 2012. 4783/M/14-NICMAR 3 5. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS) ON BOTH THE ISS UES AND ACCORDINGLY DISMISS THE APPEAL FILED BY THE REVENUE. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 27TH NOVEMBER , 2017. !'#$%&'() 27 , 201 7 SD/- SD/- ( / RAM LAL NEGI ) ( / B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; () /DATED : 27.11.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.