Tribunals. However, Hon’ble Supreme Court Has Allowed Thelosses In Two Decisions Viz. (I) In The Case Of Rajasthan Andgujarat Charitable Foundation, Poona And ( v. Subroseducation Society?

OD-16 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/44/2022IA No: GA/2/2022PRINCIPAL COMMISSIONER OF INCOME TAX (EXEMPTION), KOLKATAVERSUS MAA SARASWATI GYAN MANDIR EDUCATION SOCIETY BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE BIVAS PATTANAYAKDate : 26[th] July, 2022 The Court : We have heard Mr. Soumen Bhattacharjee, learnedCounsel appearing for the appellant and Mr. S.M. Surana, learnedSenior Advocate appearing for the respondent. This appeal filed by the revenue under Section 260A of theIncome Tax Act, 1961 (the Act, for brevity) is directed against theorder dated 10[th] January, 2020, passed by the Income Tax AppellateTribunal “B” Bench, Kolkata in I.T.A No. 2002 (Kol) of 2017, for theassessment year 2012-13. The revenue has raised the following substantial questions oflaw for consideration. (i)Whether on the facts and the circumstances of the case,disallowance of Rs.2,84,67,351/- claimed towards depreciation.The Learned Income Tax Appellate Tribunal has relied on thedecision of the Hon’ble High Court in the case of SiliguriRegulated Market Committee (2014) 366 ITR 51, which hasbeen accepted by the department. Moreover, on this issue,Hon’ble Supreme Court has dismissed departmental appeal inthe case of Rajasthan and Gujarat Charitable Foundation,Poona ?disallowance of Rs.2,84,67,351/- claimed towards depreciation.The Learned Income Tax Appellate Tribunal has relied on thedecision of the Hon’ble High Court in the case of SiliguriRegulated Market Committee (2014) 366 ITR 51, which hasbeen accepted by the department. Moreover, on this issue,Hon’ble Supreme Court has dismissed departmental appeal inthe case of Rajasthan and Gujarat Charitable Foundation,Poona ? (ii)Whether the addition of Rs.8,40,000/- towards capital gain fromsale of cars. The Learned Income Tax Appellant Tribunal hasconsidered that capital gain from sale of cars would qualify forexemption under section 11(1A) of the Act since the tax effect onthis issue is less than the threshold limit?sale of cars. The Learned Income Tax Appellant Tribunal hasconsidered that capital gain from sale of cars would qualify forexemption under section 11(1A) of the Act since the tax effect onthis issue is less than the threshold limit? (iii)Whether disallowance of exemption under section 11(1)(a) onadministrative and establishment expenses of Rs.3,54,12,977/-.On this issue, the department has accepted the decision ofHon’ble Calcutta High Court in the case of Birla Janahit Trustreported in 208 ITR 372?administrative and establishment expenses of Rs.3,54,12,977/-.On this issue, the department has accepted the decision ofHon’ble Calcutta High Court in the case of Birla Janahit Trustreported in 208 ITR 372? (iv)Whether disallowance of set off of earlier years of losses ofRs.6,04,16,031/- The Income Tax Appellant Tribunal hasreferred to several decisions of Hon’ble Courts as well asRs.6,04,16,031/- The Income Tax Appellant Tribunal hasreferred to several decisions of Hon’ble Courts as well as Tribunals. However, Hon’ble Supreme Court has allowed thelosses in two decisions viz. (i) in the case of Rajasthan andGujarat Charitable Foundation, Poona and (ii) in the case ofCivil appeal No.5171 of 2016 in the Case of CIT Vs. SubrosEducation Society? (v)Whether disallowance of set off of losses of Rs.1,14,75,323/-from running of school bus and Rs.20,56,394/- from running of hostel. The Income Tax Appellant Tribunal has referred toseveral decisions of Hon’ble Courts as well as Tribunals.However, Hon’ble Supreme Court has allowed the losses in twodecisions viz. (i) in the case of Rajasthan and Gujarat CharitableFoundation, Poona and (ii) in the case of Civil appeal No.5171 of2016 in the Case of CIT Vs. Subros Education Society ? We have heard Mr. Soumen Bhattacharjee, learned Counselappearing for the appellant/revenue and Mr. S.M. Surana, learnedSenior Advocate appearing for the respondent/assessee. (v)Whether disallowance of set off of losses of Rs.1,14,75,323/-from running of school bus and Rs.20,56,394/- from running of hostel. The Income Tax Appellant Tribunal has referred toseveral decisions of Hon’ble Courts as well as Tribunals.However, Hon’ble Supreme Court has allowed the losses in twodecisions viz. (i) in the case of Rajasthan and Gujarat CharitableFoundation, Poona and (ii) in the case of Civil appeal No.5171 of2016 in the Case of CIT Vs. Subros Education Society ? We have heard Mr. Soumen Bhattacharjee, learned Counselappearing for the appellant/revenue and Mr. S.M. Surana, learnedSenior Advocate appearing for the respondent/assessee. On going through the substantial questions of law as suggestedby the revenue, we find that the revenue has accepted the legalposition, more particularly, the decisions which have been referred toin question nos.1, 3, 4 and 5. If such is the position, the revenue cannot pursue the matterand seek to canvass a case which is contrary to what they havesubmitted before this Court. If the issues raised in substantial questions of law nos.1, 3, 4 and 5 are to be decided against therevenue as admitted by them, then substantial question of law no.2cannot be pursued as the tax effect is less than the threshold limit. For the above reasons, the appeal filed by the revenue isdismissed. With the dismissal of the appeal, the stay application also isdismissed. (T.S. SIVAGNANAM, J.) (BIVAS PATTANAYAK, J.) B.PAL/SN.AR(CR)