Xavier University, Pipil V. CIT (Exemption) , Hyderabad

ITA 52/CTK/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9642 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 19-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Capital expenditure

Judgement Text

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER ITA No.70/CTK/2021 (नििाारण वषा / Asses s m ent Year :2015-2016) Xa vier Un i ve rsi t y ( XI M Un i ve rs it y), Plot No.12/A , Indus tria l Esta te, Kurk i, N ij i ga rdh, Pi pli, Pu ri P AN No.AAAL X 00 01 G T AN N o.B BNX 00015 B ... ... ... ... .... . As s e s s e e Versus CIT (Exem ption ), H yde rabad ..................Re ve n u e AND ITA No.52/CTK/2022 (नििाारण वषा / Asses s m ent Year :2017-2018) Xa vier Un i ve rsi t y ( XI M Un i ve rs it y), Plot No.12/A , Indus tria l Esta te, Kurk i, N ij i ga rdh, Pi pli, Pu ri P AN No.AAAL X 00 01 G T AN N o.B BNX 00015 B ... ... ... ... .... . As s e s s e e Versus CIT (E xem ption ), H yde rabad ..................Re ve n u e Shri P.R.Mohanty, Advocate for the assessee Shri M.K.Gautam, CIT-DR for the Revenue Date of Hearing : 07/07/2022 Date of Pronouncement : 07/07/2022 आदेश / O R D E R Per Bench : ITA No.70/CTK/2021 is an appeal filed by the assessee against the order passed u/s.263 of the Act by the ld. CIT(E), Hyderabad, in DIN & ITA No.70/CTK/2021 & ITA No.52/CTK/2022 2 Letter No.ITBA/COM/F/17/2020-21/1031719430(1), dated 24.03.2021 for the assessment year 2015-2016. ITA No.52/CTK/2022 is an appeal filed by the assessee against the order passed u/s.263 of the Act by the ld. CIT(E), Hyderabad, in DIN & Letter No.ITBA/REV/F/REV5/2021- 22/1040704531(1), dated 14.03.2022 for the assessment year 2017-2018. 2. At the outset, we found that ITA No.70/CTK/2021 is barred by 32 days. In this regard, the assessee has filed an application stating therein to condone the delay which is not deliberate. Ld. CIT-DR also agreed to the contention of the ld. AR and he did not have any objection to condone the delay occurred in filing the instant appeal. Accordingly, we condone the delay of 32 days in filing the appeal of the assessee for A.Y.2015- 2016 and the appeal is heard finally along with the appeal of the assessee for A.Y.2017-2018. 3. As the facts in both the years are identical, they are being disposed off by this consolidated order. 4. It was submitted by the ld. AR that the ld. CIT(E) has invoked his powers u/s.263 of the Act in respect of an assessment order passed by the AO u/s.143(3) of the Act. It was submitted that the ld. CIT(E) was of the view that the assessee has claimed depreciation and also claimed capital expenditure and thereby violated the provisions of Section 11(6) of the Act. It was the submission that the assessee has claimed depreciation on only such assets which have not been claimed as application. It was the submission that this was already categorically mentioned in audit ITA No.70/CTK/2021 & ITA No.52/CTK/2022 3 report of the assessee. It was the submission that there was no violation of provisions of Section 11(6) of the Act. It was further submission that even otherwise the assessee is entitled to claim depreciation and application together in view of the decision of the Hon’ble Supreme Court in the case of CIT Vs. Rajasthan & Gujarati Charitable Foundation Poona, reported in 402 ITR 441(SC)/[2018] 89 taxmann.com 127(SC). It was the submission that the order passed u/s.263 of the Act is liable to be quashed. 5. In reply, the ld. CIT-DR submitted that the provisions of Section 11(6) of the Act have been amended w.e.f.01.04.2015. It was the submissions that this is why the ld.CIT(E) invoked the powers u/s.263 of the Act. It was the submission that the order u/s.263 of the Act is liable to be upheld. 6. We have considered rival submissions. 7. A perusal of the audit report along with the utilisation chart towards asset creation clearly shows that the assessee has not claimed depreciation in respect of the assets in respect of which the claim of application has been made. It is also noticed that this has categorically been mentioned in the reply filed before the CIT(E), Hyderabad. The ld. CIT(E), however, did not consider the reply of the assessee nor he has done any verification but has simply proceeded to direct the AO to examine the issue afresh. As the ld. CIT(E) has not considered the explanation given by the assessee and as it is noticed that the assessee ITA No.70/CTK/2021 & ITA No.52/CTK/2022 4 has not claimed the depreciation on the items on which the assessee has claimed application, we are of the view that there is no violation of provisions of Section 11(6) of the Act in the case of the assessee for both the assessment years under consideration. Consequently, the order passed by the ld. CIT(E) in both the appeals under consideration are hereby quashed. 8. In the result, both the appeals of the assessee are allowed. Order dictated and pronounced in the open court on 07/07/2022. Sd/- (अरुण खोड़पऩया) (ARUN KHODPIA) Sd/- (जाजज माथन) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 07/07/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : आदेशाि ु सार/ BY ORDER, (Assistant Registrar) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack 1. अऩीऱाथी / The Appellant- 2. प्रत्यथी / The Respondent- 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. पिभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यापऩत प्रयत //True Copy//