ITO (EXEMPRION)-1(1) MUMBAI, MUMBAI V. BHARTIYA VIDYA BHAVAN, MUMBAI

ITA 5141/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0897 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Department
• Bench Allotted: J
• Next Hearing Date: 11-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 12-08-2016
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHN
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Depreciation; Charitable institution; Capital expenditure
• Section: 32

Judgement Text

' IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J , MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI N.K.PRADHAN , ACCOUNTANT MEMBER ITA NO. 5140 /MUM/201 6 : (A.Y : 20 10 - 11 ) ITA NO. 5141 /MUM/201 6 : (A.Y : 20 11 - 12 ) ITO (EXEMPTION) - 1(1) R.NO.508, 5 TH FLOOR PIRAMAL CHAMBERS PAREL, LAL BAUG MUMBAI 400 0 12 VS. M/S B HARTIYA VIDYA BHAVAN MUNSHI SADAN KULAPATI K M MUNISHI MARG CHOWPATTY MUMBAI 400 0 07 PAN : AA A TB1693E ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI ALOK JOHN RESPONDENT BY : SHRI K.GOPAL & SHRI JITENDRA SINGH / DATE OF HEARING : 11 /0 4 /2017 / DATE OF PRONOUNCEMENT : 26 / 04 / 2017 / O R D E R P ER C.N.PRASAD [J.M.] TH E SE TWO APPEALS ARE FILED BY REVENUE FOR THE ASSESSMENT YEARS 20 10 - 11 AND 20 11 - 12 AGAINST THE ORDER S OF THE LD. CIT (APPEALS) - 1 , MUMBAI DATED 03 .0 5 .201 6 AND 19.05.2016 RESPECTIVELY . 2 ITA NOS . 5140 & 5141 /MUM/2015 (A.YS 20 10 - 11 AND 20 11 - 12 RESPLY.) M/S B HARTIYA VIDYA BHAVAN 2. THE REVENUE HAS RAISED IDENTICAL COMMON GROUND S IN BOTH THESE APPEALS EXCEPT FOR THE FIGURES AS UNDER : 1. WHETHER ON THE FACTS OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE ON ACCOUNT OF DISALLOWING DEPRECIATION ON FIXED ASSETS OF RS.23,11,61,215/ - IN CONTRAVENTION OF THE DECISION OF ESCORTS LTD. VS. UOI 199 ITR 43 WHEREIN IT WAS HELD THAT SINCE SECTION 11 OF THE INCOME TAX ACT PROVIDES FOR DEDUCTION CAPITAL EXPENDITURE INCURRED ON ASSETS ACQUIRED FOR THE OBJECTS OF THE TRUST AS APPLICATION AND DOES NOT SPECIFICALLY & EXPRESSLY PROVIDE FOR DO UBLE DEDUCTION ON ACCOUNT OF DEPRECIATION ON THE SAME VERY ASSETS ACQUIRED FROM SUCH CAPITAL EXPENDITURE, NO DEDUCTION SHALL BE ALLOWED U!S.32 FOR THE SAME OR ANY OTHER PREVIOUS YEAR IN RESPECT OF THAT ASSET AS IT AMOUNTS TO CLAIMING A DOUBLE DEDUCTION. 2 . WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) ERRED IN ALLOWING THE APPEAL, WHEN THE DELHI HIGH COURT IN THE CASE OF CHARANJIV CHARITABLE TRUST AND KERALA HIGH COURT IN THE CASE OF LISSIE MEDICAL INSTITUTIONS VS C IT 76 DTR (KER) 372 HAS DECIDED THE ISSUE IN THE FAVOUR OF THE DEPARTMENT AFTER C ONSIDERING THE DECISION OF HONBL E SUPREME COURT IN THE CASE OF ESCORTS LTD (199 ITR 43). 3. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) ERRED IN RELYING UPON THE JUDGMENT OF HON'BLE HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SELECTION WITHOUT APPRECIATING THE FACT THAT DEPARTMENT HAS NOT ACCEPTED THE DECISION ON MERIT AND ALSO WITHOUT APPRECIATING THE FACT THAT T HE HON'BLE HIGH COURT WHILE DECIDING THE ABOVE SAID CASE HAS NOT TAKEN INTO ACCOUNT THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF ESCORT LTD. WHICH IS IN THE FAVOUR OF DEPARTMENT. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (A PPEALS) - I. MUM BAI BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3 . THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITS THAT THE ISSUE IN APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 - 10 IN ITA NO.3771/MUM/2015 DATED 06.10.2015, WHEREIN THE COORDINATE BENCH FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. 3 ITA NOS . 5140 & 5141 /MUM/2015 (A.YS 20 10 - 11 AND 20 11 - 12 RESPLY.) M/S B HARTIYA VIDYA BHAVAN INSTITUTE OF BANKING [264 ITR 110] DISMISSED THE APPEAL OF THE REVENUE ON IDENTICAL GROUNDS. 4. THE LD. DR PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 5. ON HEARING BOTH THE SIDES, WE FIND THAT THE ISSUE IN APPEAL IS SQUARELY COVERED BY THE DECI SION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 - 10 IN ITA NO.3771/MUM/2015 DATED 06.10.2015, WHEREIN THE COORDINATE BENCH HELD AS UNDER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - 7, MUMBAI AND IT PERTAINS TO A.Y. 2009 - 10. 2. IT COULD BE NOTICED FROM THE GROUNDS OF APPEAL THE REVENUE CONTENDS THAT THE LEARNED CIT(A) ERRED IN ALLOWING THE CARRY FORWARD OF DEFICIT AND ALLOWING SET OFF AGAINST THE INCOME OF THE SUBSEQUENT YEARS. WHEN IT WAS POINTED OUT THAT THE GROUNDS DO NOT ARIS E OUT OF THE ORDER PASSED BY LEARNED CIT(A) LEARNED DEPARTMENTAL REPRESENTATIVE REQUESTED FOR FURTHER TIME AND FILED REVISED GROUNDS OF APPEAL WHICH ARE EXTRACTED HEREIN : - 1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) E RRED IN ALLOWING THE APPEAL F THE ASSESSEE ON ACCOUNT OF DISALLOWING DEPRECIATION ON FIXED ASSETS OF RS. 20,69,49,0761 - IN CONTRAVENTION OF THE DECISION OF ESCORTS VS. UOI (199 ITR 43), WHEREIN IT WAS HELD THAT SINCE SECTION 11 OF THE INCOME TAX ACT PROVID ES CAPITAL EXPENDITURE INCURRED ON ASSETS ACQUIRED FOR THE OBJECTS OF THE TRUST AS APPLICATION AND DOES NOT SPECIFICALLY AND EXPRESSLY PROVIDE FOR DOUBLE DEDUCTION ON ACCOUNT OF DEPRECIATION ON THE SAME VERY ASSETS ACQUIRED FROM SUCH CAPITAL EXPENDITURE, N O DEDUCTION SHALL BE ALLOWED U/ S. 32 FOR THE SAME OR ANY OTHER PREVIOUS YEAR IN RESPECT OF THAT ASSETS AS IT AMOUNTS TO CLAIMING A DOUBLE DEDUCTION. 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) ERRED IN ALLOWING THE DE PRECIATION, WHEN THE DELHI HIGH COURT IN THE CASE OF CHARANJIV CHARITABLE TRUST AND KERALA HIGH COURT IN THE CASE LISSIE MEDICAL INSTITUTE VS. CIT, 76 4 ITA NOS . 5140 & 5141 /MUM/2015 (A.YS 20 10 - 11 AND 20 11 - 12 RESPLY.) M/S B HARTIYA VIDYA BHAVAN DTR (KER) 372 HAS DECIDED THE ISSUE IN FAVOUR OF THE DEPARTMENT AFTER CONSIDERING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ESCORTS LTD. (199 ITR 43). 3) THE APPELLANT PRAYS THAT THE ORDER OF LEARNED CIT(A) - 7, MUMBAI BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BOTH THE PARTIES ADMITTED THAT THE ISSUE STANDS SQUARELY COVERED AGA INST THE REVENUE AND IN FAVOUR OF THE ASSESSEE BY THE DECISION OF CIT VS. INSTITUTE OF BANKING (264 ITR 110). 4. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, I UPHOLD THE ORDER OF LEARNED CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. PRONOUNCED A CCORDINGLY IN THE OPEN COURT. RESPECTFULLY FOLLOWING THE SAID ORDER, WE UPHOLD THE ORDER OF THE LD. CIT (APPEALS) AND REJECT THE GROUNDS OF THE REVENUE. 6 . IN THE RESULT, APPEAL S OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 26 TH DAY OF APRIL 2017 . SD/ - SD/ - ( N.K.PRADHAN ) ( C.N.PRASAD ) / / ACCOUNTANT MEMBER JUDICIAL MEMBER / MUMBAI; / DATED 26 .04. 2017 LR, SPS 5 ITA NOS . 5140 & 5141 /MUM/2015 (A.YS 20 10 - 11 AND 20 11 - 12 RESPLY.) M/S B HARTIYA VIDYA BHAVAN / COPY OF THE ORDER FORWARDED TO : / BY ORDER , ( ASSTT. REGISTRAR) , / ITAT, MUM 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI . 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / / TRUE COPY / /