DDIT (E) I(1), MUMBAI V. MAHARASHTRA INDUSTRIAL DEVELOPEMENT CORPORATION, MUMBAI

ITA 6129/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88479 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 18-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURINDER JIT SINGH
• Assessee Lawyers: MANOJ KALE
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO. 6129/MUM/2013 (ASSESSMENT YEAR: 2007-08) DDIT(EXEMPTION) 1(1) VS. M/S. MAHARASHTRA INDUSTRIAL ROOM NO. 504, 5TH FLOOR PIRAMAL CHAMBERS, PAREL MUMBAI 400012 DEVELOPMENT CORPORATION UDYOG SARTHI, MAHAKALI CAVES ANDHERI (E), MUMBAI 400093 PAN - AAACM3560C APPELLANT RESPONDENT APPELLANT BY: SHRI SURINDERJIT SINGH RESPONDENT BY: SHRI MANOJ KALE DATE OF HEARING: 05.03.2015 DATE OF PRONOUNCEMENT: 05.03.2015 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY CIT(A)-1, MUMBAI AND IT PERTAINS TO A.Y. 2007-08. 2. THE FOLLOWING GROUNDS WERE URGED BEFORE US: - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CARRY FORWARD OF DEFICIT OF RS.40,58,62,345/- ON ACCOUNT OF EXCESS EXPENDITURE RELYING ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED IN 264 ITR 110 (BOM) IGNORING THE FACT THAT THIS WOULD HAVE THE EF FECT OF GRANTING DOUBLE BENEFIT TO THE ASSESSEE, FIRST AS ACCUMULAT ION OF INCOME U/S 11(1)(A) OR AS CORPUS DONATION U/S 11(1)(D) IN EARLIER YEAR/CURRENT YEAR AND THEN AS APPLICATION OF INCO ME U/S. 11(1)(A) IN THE SUBSEQUENT YEAR WHICH WAS LEGALLY N OT PERMISSIBLE? 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF THE A SSESSEE FOR CARRY FORWARD OF THE SAID DEFICIT, IGNORING THE FACT THAT THERE WAS NO EXPRESS PROVISION IN THE IT ACT, 1961 PERMITTING AL LOWANCE OF SUCH CLAIM. ITA NO. 6129/MUM/2013 M/S. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION 2 3. FACTS NECESSARY FOR DISPOSAL OF THE APPEAL ARE STAT ED IN BRIEF. ASSESSEE IS A TRUST REGISTERED UNDER SECTION 12A OF THE INCO ME TAX ACT. DURING THE YEAR ASSESSEE CLAIMED TOTAL APPLICATION OF FUNDS OF ` 40,58,62,345/- AND ADJUSTED THE SAME AGAINST SURPLUS AS PER INCOME & E XPENDITURE ACCOUNT. FUNDS WHICH WEE NOT APPLIED WERE NOT ALLOWED TO BE CARRIED FORWARD BY THE AO. SURPLUS OF ` 7,60,050/- WAS, THEREFORE, BROUGHT TO TAX. ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AND CONTENDED THAT IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE F OR A.Y. 2008-09 (ITA NO. 6752/MUM/2011 DATED 15.03.2013). HAVING REGARD TO T HE VIEW TAKEN BY THE ITAT, THE LEARNED CIT(A) SET ASIDE THE DISALLOWANCE MADE BY THE AO. 4. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. AT THE T IME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN RESPECT OF A.Y. 2005-06 ON IDENTICAL ISSUE THE ORDER PASSED BY THE ITAT WAS AFFIRMED BY THE HON'BLE HIGH COURT (I.T. APPEAL NO. 2652 OF 2011 DATED 20 TH MARCH, 2013). SINCE THE VIEW TAKEN BY THE LEARNED CIT(A) IS IN CONFORMITY W ITH THE VIEW TAKEN BY THE HON'BLE HIGH COURT (SUPRA), HE SUBMITTED THAT THE O RDER PASSED BY THE LEARNED CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 5. ON THE OTHER HAND, THE LEARNED D.R. STRONGLY RELIED UPON THE ORDER PASSED BY THE AO. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAREFU LLY PERUSED THE RECORD. SINCE THE VIEW TAKEN BY THE LEARNED CIT(A) IS IN CONFORMITY WITH THE VIEW TAKEN BY THE HON'BLE BOMBAY HIGH COURT IN ASSE SSEES OWN CASE FOR A.Y. 2005-06, WHICH IS NOT DISPUTED BY THE REVENUE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE CIT(A). 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MARCH, 2015. SD/- SD/- ( CHANDRA POOJARI ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED:5 TH MARCH, 2015 ITA NO. 6129/MUM/2013 M/S. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 1, MUMBAI 4. DIRECTOR OF INCOME TAX (E), MUMBAI 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.