Commissioner Of Income Tax (Exemptions v. M/S. Somaiya Vidyavihar

(Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. INCOME TAX APPEAL (IT) NO. 456 OF 2016 Commissioner of Income Tax (Exemptions)..Appellant Versus M/s. Somaiya Vidyavihar ..Respondent ................... Mr. Sham Walve i/by Mr. Suresh Kumar for the RespondentMr. Sham Walve i/by Mr. Suresh Kumar for the Respondent ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : NOVEMBER 22, 2018. P.C.: 1.This appeal under Section 260 A of the Income Tax Act, 1961 (Act), challenges the order dated 9.3.2015 passed bythe Income Tax Appellate Tribunal, Mumbai (“the Tribunal”for short). This appeal relates to the Assessment Year 2008-09. Mr. Walve for the Revenue urges following two questionsfor our consideration. “(i) Whether on the facts and in the circumstances of thecase and in law, the Hon'ble Tribunal was justified inallowing the Assessee's appeal on account ofdisallowing depreciation on fixed assets of Rs.3,90,32,963/- in contravention of the decision in thecase and in law, the Hon'ble Tribunal was justified inallowing the Assessee's appeal on account ofdisallowing depreciation on fixed assets of Rs.3,90,32,963/- in contravention of the decision in the case of Escorts Ltd. Vs. UOI (199 ITR 43) wherein itwas held that since section 11 of the I.T. Act providesfor deduction of capital expenditure incurred on assetsacquired for the objects of the trust as application anddoes not specifically & expressly provide for doublededuction on account of depreciation on the same veryassets acquired from such capital expenditure, nodeduction shall be allowed u/s. 32 for the same or anyother previous year in respect of that asset as itamounts to claiming a double deduction? (ii) Whether on the facts and in the circumstances of thecase and in law, the Hon'ble Tribunal was justified inallowing the carry forward of deficit and allowing set offagainst the income of the subsequent years, allowingthe deficit will tantamount to double deduction onaccount of expenditure out of exempt income?case and in law, the Hon'ble Tribunal was justified inallowing the carry forward of deficit and allowing set offagainst the income of the subsequent years, allowingthe deficit will tantamount to double deduction onaccount of expenditure out of exempt income? 2.Mr. Walve, the learned counsel for the Revenue fairlystates that Question NO. 1 stands concluded against theRevenue and in favour of the respondent - assessee by thedecision of the Apex Court in the case of Commissioner ofIncome Tax-III, Pune Vs. Rajasthan & GujaratiCharitable Foundation Poona reported in [2018] 89taxmann.com 127 (SC), while Question No. 2 standsconcluded by the decision of this Court in the case of CITVs/. Institute of Banking Personnel Selection (IBPS)reported in (2003) 131 Taxman 386 (Bom.). 3.In view of above, both the questions do not give rise toany substantial question of law, hence, not entertained. TheIncome Tax Appeal is dismissed. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]