ITO (E) 1(1), MUMBAI V. BOMBAY GOW RAKSHAK MANDALI, MUMBAI

ITA 5474/MUM/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6892 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 01-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: K K VED
• Keywords: Depreciation; Charitable institution
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.5474/M/2015 ASSESSMENT YEAR: 2011-12 OFFICE OF THE ITO (EXEMPTION)-1(1), ROOM NO.508, 5 TH FLOOR, PIRAMAL CHAMBER, LALBAUG, MUMBAI 400 012 VS. M/S. BOMBAY GOW RAKSHAK MADALI, 415-B, DALAMAL TOWER, 2011, NARIMAN POINT, FREE PRESS MARG, MUMBAI 400 021 PAN: AAATB3280B (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI K.K. VED, A.R. REVENUE BY : SHRI T.A. KHAN, D.R. DATE OF HEARING : 24.05.2018 DATE OF PRONOUNCEMENT : 20.06.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 21.09.2015 OF THE COMMISSIONE R OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2011-12. 2. THE ISSUE RAISED IN GROUND NO.1, 2 & 3 BY THE RE VENUE IS AGAINST THE ORDER OF LD. CIT(A) DIRECTING THE AO TO ALLOW THE CLAIM OF DEPRECIATION BY RELYING ON DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANK ING PERSONNEL SERVICES REPORTED IN 264 ITR 110 (BOM) IG NORING THE RATIO OF HONBLE SUPREME COURT JUDGMENTS IN THE CASE OF ITA NO.5474/M/2015 M/S. BOMBAY GOW RAKSHAK MADALI 2 ESCORTS LTD. VS. UNION OF INDIA (199 ITR 43). THE REV ENUE FURTHER CHALLENGED WHETHER THE DEPRECIATION UNDER S ECTION 32 OF THE ACT WAS AVAILABLE TO THE CHARITABLE TRUST WH OSE INCOME IS NOT ASSESSABLE UNDER THE HEAD PROFIT AND GAINS FROM BUSINESS AND PROFESSION AND ALSO THE FACT THAT THE WHOLE OF THE VALUE OF ASSETS HAS BEEN ALLOWED AS DEDUCTION I N THE APPLICATION OF INCOME. 3. AT THE OUTSET, THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT THE ISSUE INVOLVED IN THIS GROUND IS DECIDED B Y THE CO- ORDINATE BENCH OF THE TRIBUNAL IN FAVOUR OF THE ASS ESSEE IN ITA NO.5508/M/2014 FOR A.Y. 2010-11, ITA NO.5311/M/2012 F OR A.Y. 2009-10 AND ITA NO.162/M/2017 FOR A.Y. 2012-13 WHEREIN THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE LD. A.R. ALSO FILED A COPY OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RAJASTHAN & GU JARATI CHARITABLE FOUNDATION POONA (2018) 89 TAXMANN.COM 12 7 (SC) IN WHICH IDENTICAL ISSUE HAS BEEN DECIDED IN F AVOUR OF THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD CAREFULLY INCLUD ING THE DECISIONS RELIED UPON BY THE LD. A.R. WE FIND THAT TH E CASE OF THE ASSESSEE IS FULLY COVERED BY THE DECISION OF TH E CO-ORDINATE BENCHES AS REFERRED TO ABOVE AND ALSO BY THE DECISI ONS OF THE APEX COURT WHEREIN IT HAS BEEN HELD THAT THE DEPREC IATION IS AVAILABLE TO THE CHARITABLE TRUST EVEN IF THE COST OF ASSET IS FULLY ALLOWED AS DEDUCTION WHILE CALCULATING THE APPLICAT ION OF ITA NO.5474/M/2015 M/S. BOMBAY GOW RAKSHAK MADALI 3 INCOME. WE ARE, THEREFORE, INCLINED TO DISMISS THE GROUND NOS.1, 2 & 3 RAISED BY THE REVENUE. 5. THE ISSUE RAISED IN GROUND NOS.4 TO 9 IS AGAINST THE DECISION OF THE LD. CIT(A) IN ALLOWING THE SET OFF O F EARLIER YEARS BROUGHT FORWARD LOSSES AMOUNTING TO RS.6,44,13 ,33/- AGAINST THE INCOME OF THE SUBSEQUENT YEARS. THE LD. A.R., AT THE OUTSET, SUBMITTED THAT THE ISSUE IS COVERED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF THE CO-ORDINATE BENCH O F THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.5508/M/201 4 FOR A.Y. 2010-11, ITA NO.5311/M/2012 FOR A.Y. 2009-10 AND ITA NO.162/M/2017 FOR A.Y. 2012-13 WHICH WAS FOLLOWED BY THE LD. CIT(A) WHILE PASSING THE APPELLATE ORDER AND THE REFORE THE APPEAL OF THE REVENUE ON THESE GROUNDS SHOULD BE DI SMISSED IN VIEW OF THE DECISION OF THE CO-ORDINATE BENCHES OF THE TRIBUNAL. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE AB OVE DECISIONS. A PERUSAL OF THE ABOVE SAID DECISIONS SH OW THAT THE CASE OF THE ASSESSEE IS FULLY COVERED IN ITS FAVOUR BY THE ABOVE REFERRED DECISIONS AND THEREFORE WE ARE INCLINED TO DISMISS THE GROUND NOS.4 TO 9 RAISED BY THE REVENUE. 7. RESULTANTLY, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.06.2018. SD/- SD/- (PAWAN SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 20.06.2018. * KISHORE, SR. P.S. ITA NO.5474/M/2015 M/S. BOMBAY GOW RAKSHAK MADALI 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.