ADIT (E)I(2), MUMBAI V. SAMEEKSHA TRUST, MUMBAI

ITA 5916/MUM/2012

• Counselvise Citation: 591619914 RSA 2012
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 28-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: KINJAL DOSHI
• Keywords: Depreciation
• Section: 12A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, M UMBAI BEFORE HONBLE S/SHRI JOGINDER SINGH (JM) , AND B.R.BASKARAN (AM) , ! ' # . . , ./I.T.A. NO.5916/MUM/2012 ( / ASSESSMENT YEAR : 2008-09) ASSTT.DIT (E) I(2), ROOM NO.504, 5 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI-400012. $ / VS. SAMEEKSHA TRUST, 320-321, A-Z INDUSTRIAL PREMISES CO-OP SOCIETY, GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI-400013 ( / APPELLANT) .. ( / RESPONDENT) ./ ./ PAN/GIRNO.:AAATSO581L / APPELLANT BY : SHRI NEIL PHILIP /RESPONDENT BY MS.KINJAL DOSHI ! '# / DATE OF HEARING : 8.12.2014 $% '# /DATE OF PRONOUNCEMENT : 8.12.2014. %& / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 5.7.2012 PASSED BY LD CIT(A)-1, MUMBAI AND IT RELAT ES TO THE ASSESSMENT YEAR 2008-09. 2. THE REVENUE IS IN APPEAL AGAINST THE DECISION OF LD CIT(A) IN RESPECT OF THE FOLLOWING ISSUES: A) ALLOWABILITY OF DEPRECIATION ON THE VALUE OF AS SETS, WHICH HAD ALREADY BEEN DEDUCTED AS APPLICATION OF INCOME; ITA NO.5916/M/2013 2 B) ELIGIBILITY OF THE ASSESSEE TO CLAIM SET OFF OF BOUGHT FORWARD EXCESS APPLICATION MADE IN THE EARLIER YEARS. 3. THE ASSESSEE IS A TRUST AND THE SAME HAS BEEN GR ANTED REGISTRATION UNDER SECTION 12A OF THE INCOME TAX ACT, 1961 (THE ACT). THE ASSESSEE CLAIMED DEPRECIATION ON ITS FIXED ASSETS. THE AO NOTICED T HAT THE COST OF THOSE ASSETS HAVE ALREADY BEEN ALLOWED AS DEDUCTION AS APPLICATI ON OF INCOME EITHER DURING THE CURRENT YEAR OR IN THE EARLIER YEARS. HENCE, T HE AO TOOK THE VIEW THAT ALLOWING DEDUCTION OF DEPRECIATION ON THE VERY SAME ASSET WOULD LEAD TO DOUBLE DEDUCTION AND ACCORDINGLY DISALLOWED THE CLAIM OF D EPRECIATION. THE ASSESSEE HAD INCURRED EXCESS EXPENDITURE OVER ITS INCOME IN THE EARLIER YEARS. THE ASSESSEE SOUGHT CARRY FORWARD OF SUCH EXCESS EXPEND ITURE AND CLAIMED THE SAME AS APPLICATION OF INCOME DURING THE CURRENT YE AR. THE SAID CLAIM WAS ALSO DISALLOWED BY AO. IN THE APPELLATE PROCEEDINGS, T HE LD. CIT(A) ALLOWED BOTH THE CLAIMS AND HENCE THE REVENUE HAS FILED THIS APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WITH REGARD TO THE FIRST ISSUE RELATING TO CLAIM OF DEPR ECIATION, WE NOTICE THAT THE SAME IS COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED IN 264 ITR 110(BOM). IT WAS FURTHER BROUGHT TO OUR NO TICE THAT THE RATIO OF THE ABOVE SAID DECISION HAS BEEN AGAIN FOLLOWED BY THE JURIS DICTIONAL HIGH COURT IN THE CASE OF BOMBAY STOCK EXCHANGE LTD. V/S DEPUTY DIREC TOR OF INCOME-TAX (EXEMPTION) [2014] 365 ITR 160 (BOMBAY). BEFORE U S, THE LD. DR PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ESCORTS LTD AND ANOTHER V/S UNION OF INDIA 199 ITR 43(SC) TO C ONTEND THAT THE DOUBLE DEDUCTION OF SAME EXPENDITURE IS NOT PERMISSIBLE. HOWEVER, WE NOTICE THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS CONSIDERED THE DECISION OF HONBLE SUPREME COURTS DECISION REFERRED SUPRA, WHILE ADJU DICATING THE APPEAL FILED IN THE CASE OF DY. DIRECTOR OF INCOME TAX-11(1) V/S M /S. G.K.R. CHARITIES (ITA NO. 8210/MUM./2010 RELATING TO ASSESSMENT YEAR : 2007- 08; ORDER DATED 10.8.2012) AND THE TRIBUNAL HAS HELD THAT THE DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF ESCORTS LTD HAS BEEN HELD TO BE NOT APPLICABLE OR DISTINGUISHABLE BY THE HONBLE PUNJAB & HARYANA HI GH COURT IN CIT V/S MARKET ITA NO.5916/M/2013 3 COMMITTEE, PIPLI, [2011] 330 ITR 16 (P&H). ACCORD INGLY, THE CO-ORDINATE BENCH HAS HELD THAT THE REVENUE CANNOT TAKE SUPPORT OF TH E DECISION RENDERED IN THE CASE OF ESCORTS LTD (SUPRA). UNDER THESE SET OF FA CTS, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LD. CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE OF DEPRECIATION BY THE FOLLOWING THE DECISION OF THE HONBLE JURISD ICTIONAL HIGH COURT. 5. THE NEXT ISSUE RELATES TO ALLOWING THE DEDUCTION OF EXCESS EXPENDITURE INCURRED IN THE EARLIER YEARS AS APPLICATION DURING THE CURRENT YEAR. WE NOTE THAT THE LD. CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSE E BY FOLLOWING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF INSTI TUTE OF BANKING PERSONNEL SERVICES(SUPRA). SINCE THE LD CIT(A) HAS FOLLOWED THE BINDING DECISION OF HONBLE JURISDICTIONAL BOMBAY HIGH COURT, WE DO NO T FIND ANY REASON TO INTERFERE WITH HIS ORDER ON THIS ISSUE ALSO. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 8TH DEC, 2014 . $% ! & '( )* 8TH DEC , 2014 % + , SD SD ( %-+& / 0/ JOGINDER SINGH ) ( . . ,/ B.R. BASKARAN ) & / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' ! MUMBAI: 8TH DEC,2014. . . ./ SRL , SR. PS %& ' (!)* +%*,) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! 2' ( ) / THE CIT(A)- CONCERNED 4. ! 2' / CIT CONCERNED 5. 6. 34+ '- , # - , ' ! / DR, ITAT, MUMBAI CONCERNED +5 6 / GUARD FILE. ITA NO.5916/M/2013 4 7 ! / BY ORDER, TRUE COPY 0 (ASSTT. REGISTRAR) # - , ' ! /ITAT, MUMBAI