TaxTMI 
TaxTMI 
2016 (2) TMI 1307
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....ated 05.02.2015 in ITA Nos.420/2010-11 & 243, 244, 245 /2011-12 CIT(A)/TRY passed under section 143(3) read with section 147 of the Act. 2. Both the appeals filed by the Revenue were barred by limitation of 59 days. The Revenue has filed an affidavit explaining the reason as reorganization of the department, consequent to which there was delay in obtaining administrative approval. It was further submitted that the delay in filing the appeals was neither wanton nor willful and therefore prayed for condonation of delay. Considering the submissions of the Revenue we are satisfied that there was reasonable cause for the delay in filing the appeals. Therefore in the interest of justice, we hereby condone the delay in filing both these appeals....
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....ner of Income Tax (Appeals) following the decision of Chennai Bench of the Tribunal in the case of GKR Charities and the decision of Hon'ble Bombay High Court in the case of CIT Vs. Institute of Banking Personnel Selection reported in 264 ITR 110 directed the learned Assessing Officer to allow the claim of depreciation for both the assessment years against which the Revenue is in appeal before us. 5. The learned Departmental Representative argued in support of the order of the learned Assessing Officer and further relied in the decision of the Hon'ble Delhi High Court in the case of DIT Vs. M/s. Charanjiv Charitable Trust in ITA No.321 to 323/Del/2013 dated 18.03.2014 wherein it was held that the depreciation would not be allowed as dedu....
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....g Officer citing certain decisions held that the claim of depreciation cannot be considered as application of income. On appeal, the Ld. CIT (A) was also of the view of the Ld. Assessing Officer and therefore confirmed Ld. Assessing Officer's order. 5.2 We find this issue is elaborately discussed in the case of Lissie Medical Institution Vs. CIT reported in [2012] 348 ITR 344(Ker.) and held the issue against the assessee. While doing so, the Hon'ble Kerala High Court had considered the Circular No.5P(LLX-6) dated 19.06.1968 which has not been considered by the other decisions. The Circular No. 5P(LLX-6) is reproduced herein below for reference:- 1. Circular No. 5-P (LXX-6) of 1968, dated 19-6-1968. Subject : Secti....
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.... of the Act, which is in excess of the income as shown in its accounts, is to be deemed to have been applied to purposes other than charitable or religious, and hence it will be charged to tax under sub-section (3). As only the income disclosed by the account will be eligible for exemption under section 11(1), the permitted accumulation of 25 per cent will also be calculated with reference to this income. 4. Where the trust derives income from house property, interest on securities, capital gains, or other sources, the word "income" should be understood in its commercial sense, i.e., book income, after adding back any appropriations or applications thereof towards the purposes of the trust or otherwise, and also after adding back a....
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....side the books in this fashion and there would be violation of section 11(1)(a). It was for the assessee to write back the depreciation and if that was done, the Assessing Officer would modify the assessment determining higher income and allow recomputed income with the depreciation written back by the assessee to be carried forward for subsequent years for application for charitable purposes." Further Hon'ble Calcutta High Court has held in the case DCIT VS. Girdharilal Shewnarain Tantia Trust reported in [1993] 199 ITR 15(Cal.) that "The "income" contemplated by the provisions of section 11 is the real income and not the income as assessed or assessable. Respectfully following the decision of the Hon'ble Kerala High Court and tak....