2015 (8) TMI 1462

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.... of the same by this consolidated order for the sake of convenience, by dealing with ITA No. 4056/Del/2014 (AY 2009-10). 2. The following grounds have been raised in ITA No. 4056/Del/2014 (AY 2009-10):- 1. That the Ld. CIT(A) has erred on facts and law in disallowing carry forward of excess capital expenditure which needs to be set off against the future income. 2. The Ld. CIT(A) has further erred in disallowing the appeal of the assessee on the basis of ITAT order in 29 SOT 316 whereas the same stands already overruled and decided by the Tribunal in the case of the same assessee in AY 2005-06 in ITA No. 5627/D/2010. The order being dated 26.8.2011. 3. That the Ld. CIT(A) has erred in not following the judicial....

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....en up for scrutiny and assessment u/s 143(3) of the Act was completed by order dated 27.12.2011. The Assessing Officer denied the benefit of carry forward of loss claimed. The AO was of the view, the loss claimed by the assessee was not based on normal commercial principles of accounting. Moreover, various expenses of capital nature had been claimed deductible future receipts/ income which was permissible even in normal accounting system. As per AO exemption meant that tax could not be charged on such income. This did not meant any deduction. Hence, assessee's claim for carry forward of excess capital expenditure against future receipts was not allowed. However, since the total application of income was more than 85% of total receipts, exem....

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....'ble Bombay High Court in the case of CIT Vs. Institute of Banking (reported in 264 ITR 110 (Bom.) ) has decided the issue in favour of the assessee. The relevant finding of the coordinate Bench order reads as follows:- "4. We have duly considered the rival contention and gone through the record carefully. Learned CIT(A) while permitting the assessee to claim set off against the brought forward losses has put reliance upon the following decisions:- "CIT Vs. Matri Sewa Trust, 242 ITR 20 (Mad.); CIT Vs. Institute of Banking, 264 ITR 110 (Bom.); CIT Vs. Maharana of Mewar Charitable Foundation 164 ITR 439 & Govindu Naicker Estate Vs. ADIY, 248 ITR 368" 5. We have gone through the order of the CIT(A) ....