The Appeal Has Been Preferred Proposing The Followingquestions As Substantial Questions Of Law v. Itxa 1654-17-O

Priya Soparkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (IT) NO.1654 OF 2017 Commissioner of Income Tax-(Exemption), Mumbai.… AppellantV/s.Matunga Gymkhana … Respondent --- Mr.Pritish Chatterjee i/by Mr.Sham Walve, Advocate for theAppellant.Mr.Nitesh Joshi with Mr.A.K.Jasani, Advocate for theRespondent. --- CORAM : UJJAL BHUYAN & MILIND N. JADHAV, JJ. DATE : MARCH 2, 2020 P.C.:- 1. Heard Mr.Pritish Chatterjee, learned counsel instructedby Mr.Sham Walve, learned standing counsel, Revenue for theappellant; and Mr.Nitesh Joshi, learned counsel for therespondent-assessee. 2.This appeal has been preferred by the Revenue underSection 260A of the Income Tax Act, 1961 (briefly “the Act”hereinafter) assailing the order dated 30[th] November, 2016passed by the Income Tax Appellate Tribunal, Mumbai Bench“B”, Mumbai (briefly “the Tribunal” hereinafter) in Income TaxAppeal No.4768/Mum/2013 for the assessment year 2006-07. 3.The appeal has been preferred proposing the followingquestions as substantial questions of law:- “(a) Whether on the facts and in thecircumstances of the case and in law, theTribunal was right in deleting the orders of A.O.without acknowledging the fact that once the trustloses its character being hit by the proviso tosection 2(15) of the Act, the only blanket availableto it, was principle of mutuality. Further theTribunal also failed to appreciate the fact thatinterest income earned from non-members couldneither be exempted from tax under Section 11 ofthe Act, as it had lost its charitable characterbeing hit by proviso to section 2(15) nor could beexempted under the principle of mutuality as theinterest income was earned from non-members?(b) Whether on the facts and in thecircumstances of the case and in law, theTribunal erred in not appreciating the fact that inthe case of Escorts Ltd. Vs. UOI 199 ITR 43 it washeld that since section 11 of the Income Tax Actprovides for deduction capital expenditureincurred on assets acquired for the objects of thetrust as application and does not specifically andexpressly provide for double deduction onaccount of depreciation on the same very assetsacquired from such capital expenditure, nodeduction shall be allowed under Section 32 forthe same or any other previous year in respectof that asset as it amounts to claiming a doublededuction? (c) Whether on the facts and in the circumstancesof the case and in law, the Tribunal erred inrelying upon the judgment of Hon’ble High Courtin the case of CIT Vs. Institute of BankingPersonnel Selection without appreciating the factthat Department has not accepted the decision onmerit, but due to smallness of tax effect appealwas not filed before Hon’ble Supreme Court.Moreover, department has filed SLP on the issueof depreciation in the case of G.D.Birla Medical Research & Educational Foundation in which leavegranted by the Hon’ble Apex Court-S.L.P.(C)No.24904 of 2016 (C.A.No.8294 of 2016) and pending for adjudication? (c) Whether on the facts and in the circumstancesof the case and in law, the Tribunal erred inrelying upon the judgment of Hon’ble High Courtin the case of CIT Vs. Institute of BankingPersonnel Selection without appreciating the factthat Department has not accepted the decision onmerit, but due to smallness of tax effect appealwas not filed before Hon’ble Supreme Court.Moreover, department has filed SLP on the issueof depreciation in the case of G.D.Birla Medical Research & Educational Foundation in which leavegranted by the Hon’ble Apex Court-S.L.P.(C)No.24904 of 2016 (C.A.No.8294 of 2016) and pending for adjudication? (d) Whether on the facts and in thecircumstances of the case and in law, theTribunal erred in relying upon the judgment ofHon’ble Bombay High Court in the case of Instituteof Banking Personnel Selection, ignoring the factthat the Department has not accepted the saiddecision of the jurisdictional High court on merit ofthe case, but due to smallness of tax effect appealwas not filed before Hon’ble Supreme Court.However, on the issue the department has filedSLP before the Apex Court in the case of MIDC(SLP (Civil) 9891 of 2014) in which leave grantedby the Hon’ble Apex court after considering thefact that the SLP on this issue in the case of TheGem & Jewellery Export Promotion Councildismissed by the Apex Court without discussion?(e) Whether on the facts and in thecircumstances of the case and in law, theTribunal erred in holding that reopening by AOunder Section 147 of the Act was bad in law as itwas made on covered issues and no fresh materialwas there for reopening, without appreciating thefacts that the assessee had claimed excessiveallowance or relief 1 double deduction in itsreturn of income? (f) Whether on the facts and in thecircumstances of the case and in law, theTribunal was justified in relying upon the decisionof Tribunal in ITA No.7375/Mum/2011 dated30.10.2015 and holding that reopening of theassessment by AO u/s. 147 of the Act was madeon covered issues and no fresh material wasthere for reopening? (g) Whether on the facts and in thecircumstances of the case and in law, theTribunal erred in holding that reopening u/s 147of the Income Tax Act, 1961 was made oncovered issues and no fresh material was there forreopening, without appreciating the facts that theassessee had claimed excessive allowance or Priya Soparkar relief and double deduction on account ofdepreciation in its return of income and noassessment u/s 143 (3) was carried out in thecase of the assessee for the A.Y. 2006-07?” 4.Mr.Joshi, learned counsel for the respondent/assesseesubmits that order of the Tribunal dated 30[th] November, 2016is a common order disposing of four appeals in the case ofthe same respondent/assessee for four different assessmentyears. In respect of assessment year 2009-10 the appealpreferred by the Revenue before this court being Income TaxAppeal No.1764 of 2017 was dismissed by the order dated22[nd] January, 2020. Question Nos.(a) to (d) are covered by thesaid judgment. He submits that questions Nos.(e), (f) and (g)relate to reopening of assessment. If question Nos.(a) to (d)are decided on merit, question Nos.(e),(f) and (g) becomesacademic. 5.Mr.Chatterji, learned counsel submits that in Income TaxAppeal No.1764 of 2017 (CIT Vs. Matunga Gymkhana)decided on 22[nd] January, 2020 question Nos.(a) to (d) havebeen dealt with and answered by this court. 6.We have perused the order dated 22[nd] January, 2020and we are of the view that questions Nos.(a) to (d) aresquarely covered by the decision of this court dated 22[nd]January, 2020. Therefore, question Nos.(a) to (d) are decidedagainst the Revenue and in favour of the assessee. 7.Following the above decision, question Nos.(e), (f) and(g) are rendered redundant and no adjudication is called for. Priya Soparkar 5.Mr.Chatterji, learned counsel submits that in Income TaxAppeal No.1764 of 2017 (CIT Vs. Matunga Gymkhana)decided on 22[nd] January, 2020 question Nos.(a) to (d) havebeen dealt with and answered by this court. 6.We have perused the order dated 22[nd] January, 2020and we are of the view that questions Nos.(a) to (d) aresquarely covered by the decision of this court dated 22[nd]January, 2020. Therefore, question Nos.(a) to (d) are decidedagainst the Revenue and in favour of the assessee. 7.Following the above decision, question Nos.(e), (f) and(g) are rendered redundant and no adjudication is called for. Priya Soparkar 8.Consequently, the appeal at the instance of theRevenue fails and accordingly, the appeal is dismissed. Nocost. (MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.) ….