Commissioner Of Income Tax (Exemptions), Jaipur v. M/S Advent Age Education Foundation,, 1-C, Madhuban, Udaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR D.B. Income Tax Appeal No. 63 / 2016 Commissioner of Income Tax (Exemptions), Jaipur ----Appellant Versus M/S Advent Age Education Foundation,, 1-C, Madhuban, Udaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. K.K. Bissa. _____________________________________________________ HON'BLE THE ACTING CHIEF JUSTICE HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATIJudgment 06/03/2017 By way of this appeal, the appellant has challenged thejudgment and order of the Income Tax Appellate Tribunal, JodhpurBench, Jodhpur whereby the Tribunal has dismissed the appeal ofthe Department confirming the order of the Commissioner ofIncome Tax (Appeals), Udaipur. Learned counsel for the appellant has framed followingquestions of law: “1.Whether on the facts and circumstances of thecase and in law the learned ITAT is legally correct inholding that the assessee is eligible to claim deductionof depreciation of Rs.89,19,876/- on the assets whichwere claimed as application u/s 11 at the time ofpurchase? 2.Whether on the facts and circumstances of thecase and in law the learned ITAT is justified in allowingthe depreciation without appreciating the fact that theapplication of 100% expenditure of the capital asset isalready allowed as capital expenditure hence furtherallowance of the depreciation on the same capital assetwould amount to double allowance? 3.Whether on the facts and circumstances of thecase and in law the learned ITAT is justified in allowingthe depreciation without appreciating the fact that theassessee has not carried out the business activities butthe receipts utilized for charity. As there was notbusiness, the claim of deprecation was not allowable,the depreciation is allowable only in the case ofbusiness or profession or in case of “income from othersources”? 4.That in view of the substantial legal question oflaw involved in the case, as well as the tax effectRs.27,56,241/- (Notional) which is much more than thelimit specified by the Board, further appeal u/s 260A ofthe Act 1961, is preferred?” The questions of law raised by the learned counsel for theappellant have already been decided against the appellant by thisCourt as also three different High Courts of Gujarat, Madras &Bombay. On being asked, learned counsel for the appellant couldnot cite any decision of the other High Court in his favour.However, SLP against judgment of this Court particularly in thecase of Commissioner of Income Tax (Exemptions), Jaipur vs. Vijaya Shanti Education Trust [(2016) 75 Taxmann.com 124 (SC)] is pending adjudication before the Supreme Court andthe order dated 03.10.2016 passed therein is reproducedhereunder: “1.Delay condoned. 2.Leave granted.3.to be heard along with Civil Appeal No.7173 of2016.”3.to be heard along with Civil Appeal No.7173 of2016.” In view of the fact that the aforesaid three different HighCourts including this Court has taken the same view against theappellant, no question of law arises in this appeal. However,ultimately if the matter is decided in favour of the Department bythe Supreme Court, it will be open for the Department to follow the same. The appeal is dismissed accordingly. (DR. PUSHPENDRA SINGH BHATI)J. (K.S. JHAVERI)ACTING C.J. Mohit Tak