TaxTMI 
TaxTMI 
2011 (2) TMI 1408
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....acts and common issues, therefore, being heard together and disposed of by this single order for the sake of convenience. 3. The claim of depreciation in computing the income under section 11(1) of the Income Tax Act as made by the assessee was rejected by the Assessing Officer and his action has been set aside by the ld. CIT(A) by accepting the appeals of the assessee for both the years. Against such orders of the ld. CIT(A), the Department has filed further appeals. At the very outset, the ld. Counsel for the assessee Shri S. Sridhar submitted that the issue agitated in these appeals is covered by the decision of 'D' Bench of the Tribunal in the case of DDIT (Exemptions) v. M/s. St. John's Educational Trust in ITA Nos. 987 to 990/Mds/2010 dated 18.10.2010 and also the decision of Hon'ble Punjab & Haryana High Court as reported in [2011] 330 ITR 16 (CIT v. Market Committee, Pipli) & [2011] 330 ITR 16 (P&H) (in the case of CIT v Tiny Tots Education Society) and another decision of 'B' Bench of the Tribunal in ITA No. 640/Mds/2009 [ITO(OSD) v. M/s. The Educational Trust of the Seventh Day Adventists], which has been discussed in the order of the 'B' Bench of the Tribunal. Since thi....
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....ets could not be allowed. (c) The return of income filed for (i) Assessment Year 2006-07 declares NIL income and gross receipts of Rs. .21,71,47,737/- in which the claim of depreciation made at Rs. . 2,64,72,392/- which was completed as "No Demand" while disallowing the depreciation claim of the assessee, the Assessing Officer has stated that when the assessee had claimed the cost of addition to assets as application of funds, claim of depreciation on the same assets could not be allowed. (d) The return of income filed for (i) Assessment Year 2007-08 declares NIL income and gross receipts of Rs. .23,53,18,947/- in which the claim of depreciation made at Rs. .2,49,35,874/- which was completed as "No Demand" while disallowing the depreciation claim of the assessee, the Assessing Officer has stated that when the assessee had claimed the cost of addition to assets as application of funds, claim of depreciation on the same assets could not be allowed. 5. Assessee took up the matters in appeal and it was contended before the first appellate authority that orders of the Assessing Officer are not legally correct because he has erred in holding that depreciation on assets should not....
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....03) in the case of CIT vs. Institute of Banking, wherein the Bombay High Court has held that the Tribunal was right in law in directing the Assessing Officer to allow depreciation on the assets the cost of which has been fully allowed as application of income u/s.11 in the past years squarely covered in the instant case. 11. In the advent of the above discussions and respectfully following the decision of the Hon'ble Bombay High Court, cited supra, the appellant trust is eligible for claim of depreciation on the assets the cost of which had been fully allowed as application of income u/s. 11 in the past years. The Assessing Officer is therefore, directed to delete the disallowance of Rs. .2,49,35,874/- made in the impugned order and revise the assessment accordingly. Thus, the appellant succeeds in the appeal." The said order was followed in the subsequent years in identical manner wherein claim of depreciation was disallowed. 7. Aggrieved by these orders of CIT(A), the department has come up in appeal for all the years and while relying upon another Supreme Court decision in the case of Escort Ltd., (199 ITR 43 ), it was contended that double taxation can not be allowed, unl....
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....e of CIT Vs. M/s.Tiny Tots Education Society (supra) has concluded to decide the issue in favour of the assessee as per paras 4 to 7 as under:- "4. Ld. Counsel for the Revenue submits that in view of judgement of the Hon'ble Supreme Court in Escorts Ltd. and another v. Union of India and others [1993] 199 ITR 43, the Assessee could not claim deduction when its income was exempt, as it will amount to getting double benefit. 5. We are unable to accept the submission. 6. The matter was discussed in our recent judgement dated 5.7.2010 in ITA No.535 of 2009, the CIT,Karnal v. Market Committee,Pipli. After referring to judgments in CIT V. Seth Manilal Ranchhoddas Vishram Bhawan Trust [1992] 198 ITR 598 (Guj.) and CIT v. Institute of Banking Personal Selection (IBPS) (2003) 131 Taxman 386 (Bom.), CIT v. Rao Bahadur Calavala Cunnan Chetty Charities [1982] 135 ITR 485 (Mad.), CIT v. Society of the Sisters of St. Anne [1984] 146 ITR 28 (Kar) and CIT V. Raipur Pallottine Society [1989] 180 ITR 579 (M.P.), the judgment of the Hon'ble Supreme Court in Escorts Ltd., (supra), was held not to be applicable to the situation where depreciation was claimed by a charitable institution in deter....