2021 (5) TMI 962

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.... by allowing exemption u/s 11 & 12 of the I.T.Act, 1961, ignoring the fact that the assessee has shown receipts from business activities and is covered by proviso to section 2(15) of the I.T.Act, 1961. (ii) On the facts and in the circumstances of the case and in law, Ld.CIT(A) has erred in allowing the claim of depreciation on fixed assets which will tantamount to double deduction, since acquisition of such assets had been allowed as application of income in earlier years. 2. Facts giving rise to the present appeal are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s 143(3) of the Income Tax Act, 1961 ('the Act') was framed vide order dated 20.12.2016. The AO while framing the assessmen....

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....the past history of the case it is seen that the assessee had been enjoying exemption under section 11 (1) from the very beginning but the same was denied during the assessment year 2009-10 by invoking the proviso to section 2(15) mainly on the ground that the assessee was involved in trade, commerce or business as there was a restaurant run in the name of Dilli Dastarkhwan in the premises of the assessee and the assessee was receiving income from the restaurant. The assessee appealed against the order of the Assessing Officer denying exemption under section 11(1) and the same was allowed by the Id. CIT (A)-XXI, New Delhi (old) vide the order dated 30/05/2012. Appeal filed by the Revenue against the order of held. CIT (A) was dismissed by t....

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.... are allowed." 9. We find that the Ld.CIT(A) has followed the decision of the Tribunal pertaining to Assessment Year 2009-10. The Revenue has not brought any other binding precedent into our notice. Therefore, we find that there is no reason to interfere in the findings of Ld.CIT(A). Ground No.1 raised by the Revenue in this appeal is dismissed. 10. Ground No.2 raised by the Revenue in this appeal is against the allowance of depreciation on fixed assets. 11. Ld. CIT DR supported the order of Assessing Officer and submitted that Ld.CIT(A) was not justified in allowing the claim of depreciation on fixed assets. Ld. Counsel for the assessee submitted that the issue has been decided in favour of the assessee by the judgement of Hon'ble....

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....this, charitable institutions were not eligible for depreciation. 4.2.3 This view has been clarified in Para 7.5 of the Explanatory Notes to the provisions of the Finance (No. 2) Act, 2014 issued vide Circular No. 1/2015 dated 21st January, 2015. Section 11 was amended by the Finance (No. 2) Act, 2014 whereby a new sub-section has been inserted which provides that under section 11, income for the purposes of its application shall be determined without any deduction or allowance by way of depreciation or otherwise in respect of any asset, acquisition of which has been claimed as an application of income under section 11 in the same or any other previous year. Para 7.5 of the said Explanatory Notes is reproduced as under: "7....