ITO iE) I(1), MUMBAI V. BAI KABIBAI & HANSRAJ MORARJI CHARITY TRUST, MUMBAI

ITA 5842/MUM/2011

• Counselvise Citation: 584219914 RSA 2011
• Duration Of Justice: 3 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH KAMAT SR
• Keywords: Depreciation; Capital expenditure
• Section: 148

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - B, BENCH , , BEFORE S/SH. JOGINDER S INGH ,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 5842 /MUM /20 11 , / ASSESSMENT YEAR - 20 0 8 - 0 9 INCOME TAX OFFICER - (E) I(1) ROOM NO.505, PIRAMAL CHAMBERS, 5TH FLOOR, PAREL , MUMBAI - 400 012. VS BAI KABIBAI & HANSRAJ MORARJI CHARITY TRUST , 26, BORA BAZAR STREET, FORT - MUMBAI. PAN:AAATB 0159 K ( / A P PELLANT ) ( / RESPONDENT ) /ASSESSEE BY :SHRI SURENDRA NIJSURE / REVENUE BY :SHRI YOGESH KAMAT , SR. AR / DATE OF HEARING : 16 - 0 6 - 2015 / DATE OF PRONOUNCEMENT : 16 - 0 6 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DT. 8.5.2011 OF CIT(A) - I, MUMBAI , THE ASSESSING OFFICER(AO) , HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEPRECIATION ON FIXED ASSETS WITHOUT APPRECIATING THE FACT THAT THE CAPITAL EXPENDITURE INCURRED ON ACQUIRING THE ASSETS HAS ALREADY BE EN CLAIMED AS APPLICATION OF INCOME U/S. 11 OF THE I. T.ACT 1961 IN THE CURRENT / PAST YEARS. 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT ALLOWING OF DEPRECIATION WILL RESULT IN DOUBLE DEDUCTION WHICH IS CONTRARY TO THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF ESCORTS LTD. V/S. UNION OF INDIA 199 ITR 43 AND J.K.SYNTHETICS V/S. UNION OF INDIA (1920 65 TAXMAN 420.) 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE DEFICIT ARISES OUT OF EXPENDITURE OUT OF INCOME ON WHICH EXEMPTION HAS ALREADY BEEN CLAIM ED AND ALLOWING OF SET OFF OF DEFICIT OF EARLIER YEAR AGAINST INCOME OF CURRENT YEAR WILL RESULT IN DOUBLE DEDUCTION WHICH IS CONTRARY TO THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF ESCORTS LTD VS. UOI 199 ITR 43 AND J.K. SYNTH ETICS V/S. UNION OF INDIA (1992) 65 TAXMAN 420. 4.THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. DURING THE COURSE OF HEARING BEFORE US, R EPRESENTATIVES OF BOTH THE SIDES AGREED THAT IN THE E ARLIER YEARS IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL. WE FIND THAT THE HONBLE BOMBAY H IGH C OURT HAD ALSO DECIDE D THE ISSUE IN FAVOUR OF THE ASSESSEE FOR THE 5842/11 - BAI KABIBAI 2 ASSESSMENT YEAR 2007 - 08. WE WILL LIKE TO REPRODUCE THE ORDER O F THE TRIBUNAL FOR THE AY 20 09 - 10( ITA NO.5312/MUM/2012 DT.12.3.15) 2. AT THE OUTSET IT MAY BE NOTICED THAT LEARNED CIT(A) FOLLOWED THE DECISION , OF HON'BLE BOMBAY HIGH COURT IN ASSESSEE'S OWN CASE FOR A.Y. 2003 - 04 IN HOLDING THAT THE ASSESSEE IS ENTIT LED TO DEPRECIATION AND DOES NOT AMOUNT TO DOUBLE DEDUCTION. PARA 3.3 IN THIS REGARD READS AS UNDER : - 3.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, SUBMISSION OF THE APPELLANT AND ASSESSMENT ORDER. I FIND THAT THE APPELLANT HAS TAKEN UP THE MATTER FOR A. Y.2003 - 04 IN WRIT BEFORE THE HONBLE BOMBAY HIGH COURT WHO HAS ALLOWED THE WRIT NOT ONLY ON ISSUE OF NOTICE U/S. 148 FOR REOPENING THE ASSESSMENT, BUT ALSO ON THE ISSUE OF ALLOWING DEPRECIATION FOR COMPUTING APPLICATION OF INCOME AND CONFIRMED THE DECISION IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL REPORTED IN 264 ITR 110. RESPECTFULLY FOLLOWING THE. DECISION OF BOMBAY HIGH COURT IN THE APPELLANT'S OWN CASE FOR A. Y.2003 - 04 VIDE WRIT PETITION NO.55 OF 2011, THE A.D. IS DIRE CTED TO ALLOW DEPRECIATION CLAIMED BY THE APPELLANT. GROUND NO. 1 IS ALLOWED . 3. AT THE TIME OF HEARING LEARNED COUNSEL PLACED BEFORE US A COPY OF THE ORDER OF HON'BLE HIGH COURT AND ALSO DECISION OF THE ITAT IN ASSESSEE'S OWN CASE FOR A.Y. 2007 - 08 (ITA NO. 2019 / MUM / 2011 DATED 13.1.2015) WHEREIN IDENTICAL ISSUES WERE DECIDED IN FAVOUR OF THE ASSESSEE. 4. SINCE THE VIEWS TAKEN BY LEARNED CIT(A) ARE IN CONSONANCE WITH THE VIEW TAKEN BY THE ITAT,AND HON'BLE HIGH COURT (SUPRA), WE DO NOT FIND ANY INFIRMIT Y IN THE ORDER PASSED BY THE LEARNED CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE . RESPECTFULLY, FOLLOWING THE ABOVE , GROUNDS OF APPEAL RAISED BY THE ASSESSING OFFICER, ARE DECIDED AGAINST HIM. AS A RESULT,APPEAL FILED BY THE AO STAND DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH , JUNE ,2015. 16 , 2015 SD/ - SD/ - ( / JOGINDER S INGH ) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 16 .0 6 .201 5 . . . JV . SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED C IT / 5. DR BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.