Pr. Commissioner Of Income Tax - Exemption v. M/S. Dawat-E-Hadiyah

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. INCOME TAX APPEAL NO. 1967 OF 2017 Pr. Commissioner of Income Tax - Exemption..Appellant Versus M/s. Dawat-E-Hadiyah ..Respondent ................... Mr. Suresh Kumar for the Appellant ................... CORAM : UJJAL BHUYAN & MILIND N. JADHAV, JJ. DATE : JANUARY 23, 2020. P.C.: 1.Heard Mr. Suresh Kumar, learned standing counsel,revenue for the appellant . 2.This appeal under Section 260A of the Income Tax Act,1961 ("the Act" for short) is directed against the orderdated 22.7.2016 passed by the Income Tax AppellateTribunal, Mumbai Bench "J", Mumbai ("Tribunal" for short) inIncome Tax Appeal No. 4333/M/2015 for the assessment year2009-10. 3.Following two questions have been proposed assubstantial questions of law:- (i) Whether on the facts and in the circumstances of the case andin law, the Tribunal was erred in allowing the assessee'sappeal on account of disallowing depreciation in contraventionof the decision in the case of Escorts Ltd. V/s UOI (199 ITR43) wherein it was held that since Section 11 of the Actprovides for deduction of capital expenditure incurred onassets acquired for the objects of the trust as application anddoes not specifically & expressly provide for double deductionon account of depreciation on the same very assets acquiredfrom such capital expenditure, no deduction shall be allowedu/S. 32 for the same or any other previous year in respect ofthat assets as it amounts to claiming a double deduction?in law, the Tribunal was erred in allowing the assessee'sappeal on account of disallowing depreciation in contraventionof the decision in the case of Escorts Ltd. V/s UOI (199 ITR43) wherein it was held that since Section 11 of the Actprovides for deduction of capital expenditure incurred onassets acquired for the objects of the trust as application anddoes not specifically & expressly provide for double deductionon account of depreciation on the same very assets acquiredfrom such capital expenditure, no deduction shall be allowedu/S. 32 for the same or any other previous year in respect ofthat assets as it amounts to claiming a double deduction? (ii) Whether on the facts and in the circumstances of the case andin law, the Tribunal was justified in allowing the carry forwardof deficit and allowing set off against the income of thesubsequent years, allowing the deficit will tantamount todouble deduction on account of expenditure out of exemptincome?"in law, the Tribunal was justified in allowing the carry forwardof deficit and allowing set off against the income of thesubsequent years, allowing the deficit will tantamount todouble deduction on account of expenditure out of exemptincome?" 4. Mr. Suresh Kumar very fairly submits that in so farquestion No. (i) is concerned, the same has been answeredin favour of the assessee and against the revenue by this Court in Commissioner of Income Tax Vs. Institute ofBanking Personnel Selection (IBPS)[1].. This finding hasbeen afÏrmed by the Supreme Court in Commissioner of 1[2003] 131 Taxman 386 (Bombay) Income Tax-III, Pune Vs. Rajasthan & GujaratiCharitable Foundation Poona[2]. 5.In so far question No. (ii) is concerned, the same is alsoconcluded in favour of the assessee and against the revenueby the Supreme Court in Commissioner of Income Tax(Exemption), New Delhi Vs. Subros EducationalSociety[3]. 6.As a matter of fact, in appeals filed by the revenueagainst the present assessee for the assessment years 2010-11 and 2011-12 being Income Tax Appeal Nos. 741 and 755of 2016, this Court had dismissed the two appeals vide orderdated 3.12.2018. 7.Following the above, we hold that no substantialquestion of law arises from the impugned order of theTribunal. Consequently, Appeal is dismissed but without anyorder as to cost. [ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ] 5.In so far question No. (ii) is concerned, the same is alsoconcluded in favour of the assessee and against the revenueby the Supreme Court in Commissioner of Income Tax(Exemption), New Delhi Vs. Subros EducationalSociety[3]. 6.As a matter of fact, in appeals filed by the revenueagainst the present assessee for the assessment years 2010-11 and 2011-12 being Income Tax Appeal Nos. 741 and 755of 2016, this Court had dismissed the two appeals vide orderdated 3.12.2018. 7.Following the above, we hold that no substantialquestion of law arises from the impugned order of theTribunal. Consequently, Appeal is dismissed but without anyorder as to cost. [ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ] 2[2018] 89 taxmann.com 127 (SC)3[2018] 7 SCC 5483[2018] 7 SCC 548 3 of 3