ITO(E), Jaipur V. OM KOTHARI FOUNDATION, Jaipur

ITA 967/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9715 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Depreciation; Question of law; Capital expenditure
• Section: 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA- @ ITA NO. 967/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09. THE INCOME TAX OFFICER (EXEMPTIONS), WARD -1 , JAIPUR. CUKE VS. M/S. OM KOTHARI FOUNDATION, OM TOWER, M.I. ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAA TO 0616 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE (ADJOURNMENT APPLICATION REJECTED) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27.02.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27/02/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-III, JAIPUR DATED 12.08.2016 PERTAINING TO ASSESSMENT YE AR 2008-09. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) HAS ERRED IN :- 1. ALLOWING ASSESSEES CLAIM OF EXEMPTION U/S 11 EVEN THOUGH PROVISIONS OF SEC. 13(1)(D)(III) ARE ATTRACTED. 2. TREATING THE SURPLUS OF RS. 43,95,014/- AS EXEMPT I NCOME IN SPITE OF THE FACT THAT ASSESSEE TRUST WAS ASSESSED AS AOP AND INVESTED THE TRUST MONEY IN SHARES WHICH IS NOT AN ELIGIBLE ASSET WITHIN THE MEANING OF PROVISIONS OF SECTION 11(5) AS SUCH IT A TTRACTS PROVISIONS OF SECTION 13(1)(D)(III) OF THE I.T. ACT. 2 ITA NO. 967/JP/2016 M/S. OM KOTHARI FOUNDATION 3. ALLOWING CLAIM OF DEPRECIATION OF RS. 15, 31,763/- ON FIXED ASSETS IN SPITE OF THE FACT THAT THE SAME WAS ALLOWED AS APPL ICATION OF INCOME U/S 11 AT THE TIME OF PURCHASE. 4. ALLOWING DEPRECIATION WITHOUT APPRECIATING THE FACT THAT THE APPLICATION OF 100% EXPENDITURE OF THE CAPITAL ASSE T IS ALREADY ALLOWED AS CAPITAL EXPENDITURE HENCE FURTHER ALLOWA NCE OF THE DEPRECIATION ON THE SAME CAPITAL ASSET WOULD AMOUNT TO DOUBLE ALLOWANCE. 5. ALLOWING DEPRECIATION WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT CARRIED OUT THE BUSINESS ACTIVITIE S BUT THE RECEIPTS UTILIZED FOR CHARITY. AS THERE WAS NO BUSINESS ACTI VITY THE CLAIM OF DEPRECIATION WAS NOT ALLOWABLE, THE DEPRECIATION IS ALLOWABLE ONLY IN THE CASE OF BUSINESS OR PROFESSION OR IN THE CASE O F INCOME FROM OTHER SOURCES. 6. DELETING THE ADDITION MADE ON ACCOUNT OF DONATION O F RS. 14,19,900/- IN SPITE OF THE F ACT THAT THE ASSESSEE TRUST HAS LOST ITS EXEMPTION BY VIOLATING THE PROVISIONS OF SECTION 13 (1)(D)(III) OF THE ACT. B. ANY OTHER QUESTION OF LAW AS DEEMED FIT IN THE F ACTS AND CIRCUMSTANCES OF THE CASE MAY ALSO BE FRAMED BEFORE THE HONBLE TRIBUNAL IN THE INTEREST OF JUSTICE. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. AN APPL ICATION DATED 23.02.2017 HAS BEEN SENT SEEKING ADJOURNMENT. IT IS ALSO STATE D THAT THE ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NOS. 383 & 384/JP/2016 PERTAINING TO ASSESSMENT YEARS 2006-07 & 07-08 DATE D 28.09.2016. 3. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMISS ION MADE IN THE WRITTEN BRIEF. 4. THE REQUEST FOR ADJOURNMENT IS REJECTED. WE FIND THAT SIMILAR GROUNDS WERE RAISED IN THE REVENUES APPEAL IN ITA NOS. 383 & 38 4/JP/2016 AND THE COORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DATED 28.09.2016 H AS REJECTED THE GROUNDS OF THE REVENUE THEREBY DISMISSING THE APPEALS OF THE REVEN UE. TAKING A CONSISTENT VIEW, WE 3 ITA NO. 967/JP/2016 M/S. OM KOTHARI FOUNDATION SEE NO REASON TO INTERFERE INTO THE ORDER OF THE LD . CIT (A), WHICH IS HEREBY UPHELD. THE GROUNDS OF THE REVENUE ARE REJECTED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27/02/20 17. SD/- SD/- ( HKKXPUN] ( DQY HKKJR ) (BHAG CHAND ) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 27/02/2017. D/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO (EXEMPTIONS), WARD-1, JA IPUR. 2. THE RESPONDENT M/S. OM KOTHARI FOUNDATIONS, JA IPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 967/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 4 ITA NO. 967/JP/2016 M/S. OM KOTHARI FOUNDATION