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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO& SHRI D.S. SUNDER SINGH
Per Shri D.S.Sunder Singh, Accountant Member : These appeals are filed by the revenue against the order of the Commissioner of Income Tax (Appeals) [CIT(A)], Vijayawada in Appeal No.10118 & 10119/CIT(A)/VJA/18-19 dated 15.03.2019 for the Assessment Year (A.Y.) 2013-14 and 2014-15, cross appeal filed by the assessee against the order of the Ld.CIT(A) in Appeal No.10119/CIT(A)/VJA/2018-19 dated 15.03.2019 for the A.Y.2014-15. The assessee also filed cross objections. Since the facts of the case are identical, these appeals are clubbed, heard together and a common order is being passed for the sake of convenience as under. I.T.A. 376/Viz/2019, A.Y.2013-14 2. Brief facts of the case are that in this case, the assessments were completed originally u/s 143(3) of the Income Tax Act, 1961 (in short ‘Act’) by an order dated 31.03.2016. The assessee filed the returns of income admitting Nil income claiming deduction u/s 10(23C) of the Act. The Assessing Officer (AO) has taken up the case for scrutiny u/s 143(3) and rejected the assessee’s claim of exemption u/s 10(23C), 11,12&13 and made the following additions to the returned income : (a) Excess income over expenditure - Rs.5,96,56,184 (b) Disallowance of depreciation - Rs.6,99,55,960
Against which the assessee went on appeal before the CIT(A) and the Ld.CIT(A), in appeal No.10290/CIT(A)/VJA/2016-17 dated 01.03.2018 held that the assessee is entitled for exemption and the AO was directed to allow the exemption u/s 11,12,&13 and 10(23C)(iv) of the Act. However, in respect of assessee’s claim for depreciation u/s 32, the Ld.CIT(A) directed the AO to allow the claim of the assessee on whose value of assets the assessee did not claim as application of income and recompute the income after allowing exemption and to allow the claim of depreciation in respect of assets which were not claimed as application of income. The AO passed order giving effect to the order of the Ld.CIT(A) vide order dated 02.05.2018 and allowed relief of Rs.5,96,56,184/- and assessed the taxable income of Rs.6,99,55,960/- without making any discussion with regard to the assessee’s claim of exemption u/s 10(23C), 11, 12, 13 and the allowability of depreciation. Hence, the assessee filed appeal before the CIT(A) against the consequential order passed by the AO.
Before the Ld.CIT(A), the assessee raised a ground that the assessee is entitled for exemption u/s 10(23C)(iv) and section 11,12&13 and, argued that the assessee’s income is exempt u/s 11 and 10(23C). The assessee also brought to the notice of the Ld.CIT(A) the decision of Hon’ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarathi Charitable Foundation Poona (2018) 402 ITR 441, wherein, Hon’ble Apex Court held that the depreciation is allowable on the value of capital assets that was treated as application of income in the years in which the assets were acquired. Thus, the Ld.AR contended before the Ld.CIT(A) that the AO has wrongly assessed the income at Rs.6,99,55,960/-. The Ld.AR further stated that in the consequential order though the AO has allowed the exemption of income but disallowed the entire depreciation without verifying the details disregarding the direction of the Ld.CIT(A), therefore, argued that the consequential order passed by the Ld.AO was incorrect and bad in law, hence, requested to set aside the order of the AO and allow the appeal of the assessee. The Ld.CIT(A) considered the submissions of the assessee and found that AO has not examined the issues of exemption u/s 11,12 & 13 and 10(23C). The Ld.CIT(A) also found that the CIT(A) has directed the AO to allow the depreciation on those assets whose value was not claimed as application of income by the assessee in the years in which the assets were acquired. The AO has passed the consequential order without verifying the assessee’s eligibility regarding exemption u/s 10(23C), section11,12, and 13 and the depreciation. The Ld.CIT(A) also observed that while giving effect to the order of the Ld.CIT(A), the AO has not followed the direction of the Ld.CIT(A) with regard to the application of judgement of Hon’ble Supreme Court. The Ld.CIT(A) observed that since, the appeal is against the consequential order, the decision of Hon’ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarathi Charitable Foundation Poona (supra) has no application. The Ld.CIT(A) has reexamined the entire issue of exemption u/s 10(23C),11, 12 and 13 and observed that when the assessee is entitled for exemption u/s 11 there would be no taxable income, if the assessee applies the income to the extent of 85% of the revenue, even if the depreciation is not taken as application of income. The Ld.CIT(A) during the appeal verified the receipts and application of income during the year and found that against the receipts of Rs.29.43 crores, the assessee had applied the income to the extent of Rs.23.25 crores and shortfall was only Rs.1.76 crores as under : Particulars Amount (Rs.) Total receipts as per Income and Expenditure 29,43,29,724 account Application of income required to the extent of 25,01,80,265 85% of the above for being eligible for the exemption Application of income during the year : Revenue expenditure debited to Income & 23,41,95,993 Expenditure account including depreciation Add : Capital expenditure during the year 6,82,78,322 30,24,74,315 Less : depreciation 6,99,55,960 Application of income 23,25,18,355 Shortfall in application of income 1,76,61,910 4.1. The Ld.CIT(A) further observed that a sum of Rs.1,76,61,910/- was considered as application of income, since, the same was deposited in specified modes as per section 11 of the Act. The Ld.CIT(A) further observed the assessee being entitled for exemption ui/s 10(23C) the entire income of the assessee is eligible for exemption if the provisions of section 10(23C) are invoked. Accordingly the Ld.CIT(A) deleted the additions made by the AO and allowed the appeal of the assessee.
Against which the revenue has filed appeal before the Tribunal. During the appeal hearing, the Ld.DR argued that the Ld.CIT(A) has travelled beyond his jurisdiction while deciding the appeal. In the original appeal order dated 01.03.2018, the Ld.CIT(A) allowed the exemption u/s 10(23C), 11 and 12 of the Act, however, with regard to the depreciation, the Ld.CIT(A) directed the AO to allow the depreciation only on the assets which were not claimed as application of income in the years in which the assets were acquired. The consequential order required to be restricted to the directions of the CIT(A), according to which the AO is required to allow exemption u/s 10(23C,) 11 and 12 and the depreciation on the assets which were not claimed as application of income. The AO given effect to the order of the Ld.CIT(A) accordingly, hence argued that the Ld.CIT(A) travelled beyond his jurisdiction and allowed exemption u/s 10(23C) and 11 and 12 recasting the entire receipts and payments and expenses without verification which is not permissible as per law. Therefore, argued that the Ld.CIT(A) erred in allowing the benefit of accumulation u/s 11(5) of the Act with regard to shortfall. The Ld.DR further argued that the observation of the Ld.CIT(A) that the fixed deposits made during the year were in specified modes in section 11(5) without verifying the facts. Hence requested to set aside the order of the Ld.CIT(A) and allow the appeal of the revenue.
On the other hand, the Ld.AR argued that in the original assessment, the AO has not examined the assessee’s eligibility regarding deduction u/s 10(23C), section 11 and 12 &13. The assessee has produced the books of accounts and furnished the entire information required before the AO. The assessee also claimed exemption u/s 10(23C) which was granted by the CCIT, Hyderabad III vide letter dated 27/02/2009 with effect from 2008-09 and subsequently no order was passed by the Ld.CIT withdrawing the benefit allowed u/s 10(23C), therefore argued that the assessee continued to enjoy the exemption u/s 10(23C). Even though, there was no cancellation order withdrawing the benefit u/s 10(23C),11 and 12, the AO held that the assessee is not entitled for exemption u/s 11, 12 and 10(23C) and passed the order rejecting the assessee’s claim. On appeal before the CIT(A), the Ld.CIT(A) partly allowed the appeal and directed the AO to allow exemption u/s 11, 12 and 10(23C) and directed the AO to restrict the depreciation on assets which were not claimed as application of income. The Ld.AR argued that even if the depreciation is not allowed on assets which were claimed as application of income, the assessee is entitled for exemption u/s 10(23C), 11 and 12, since, the assessee had applied the income to the extent of 85% of the income and taxable income works out to Nil. Therefore, without verifying the fact that the assessee is entitled for exemption u/s 10(23C),11 &12 and taxable income works out to Nil, the AO passed the consequential order taxing the income of Rs.6,99,55,960/- without application of mind. On appeal, the Ld.CIT(A) considered the issue and given a finding that the assessee is entitled for exemption u/s 10(23C) and 11 and observed that the assessee had applied the income to the extent of 85% of the income during the year, therefore, argued that the Ld.CIT(A) has applied the provisions u/s 10(23C)(iv), 10 and 11 correctly and given a correct finding. Hence submitted that there is no error in the order of the Ld.CIT(A) and requested to uphold the order of the Ld.CIT(A) and allow the appeal of the assessee.
We have heard both the parties and perused the material placed on record. As observed from para No.7.4 of the order of the Ld.CIT(A) in assessee’s case, the ITAT, Visakhapatnam vide I.T.A. 93 & 241/Viz/2015 and dt.10.11.2017 held that the assessee is eligible for exemption under the provisions of section 11, 12 and 13 of the Act and also section 10(23C)(iv) which was already granted to the assessee from the A.Y.2008-09 onwards by CCIT, Hyderabad-III vide letter dated 27.02.2009. Hence, the Ld.CIT(A) directed the AO to allow the exemption u/s 11, 12 and 10(23C)(iv) of the Act. However, the Ld.CIT(A) directed the AO to restrict the depreciation on the assets which were not claimed as application of income in the year in which they were acquired. The AO given effect to the order of the Ld.CIT(A) which is placed in page No.4 of the paper book. The AO simply allowed relief of Rs.5,96,56,184/- without examining the assessee’s claim of exemption u/s 10(23C), 11, 12 and 13 of the Act very casually without discussing the directions of the Ld.CIT(A) and it’s outcome. As observed from the order of the Ld.CIT(A), the Ld.CCIT-III, Hyderabad has passed order granting exemption u/s 10(23C) vide letter dated 27.02.2009 and the AO completed the assessment on 31.03.2016 without considering the order passed by the Ld. Commissioner of Income Tax on 29.07.2009 which cannot be appreciated. Even while giving effect to the order of the Ld.CIT(A), the AO did not examine or verify the claim of the assessee u/s 10(23C), 11, 12 and 13 of the Act and the depreciation as per the directions of the Ld.CIT(A). When the assessee has filed the return of income declaring Nil income, the AO has assessed the income of Rs.6,99,55,960/- without giving finding on exemption allowed u/s 10(23C), 11, 12 and the depreciation. Therefore, we observe that the consequential order passed by the AO is without application of mind and without applying the provisions of the law. The Ld.CIT(A) while giving the finding that the AO has not carried out the directions of the Ld. CIT(A), examined the issue with regard to allowability of exemption u/s 10(23C), section 10, 11, 12 and 13 and given a finding that the assessee has fulfilled the requirement of application of 85% of income during the year, even if the depreciation claim of the assessee is not taken in to consideration for application of income and held that the taxable income would work out to Rs.Nil. For the sake of clarity and convenience, we extract relevant part of the order of the Ld. CIT(A) which reads as under : para 23, 28, 29, 30, 31, 34, 37, 38 and 39. “23. It was also contended by the assessee that the AO failed to note that when exemption u/s 11is allowed as per the directions of the CIT(A), there can be no taxable income if there is application of income to the extent of 85% of the income, even if the depreciation claimed by the assessee is not taken into consideration as application of income. The details of application of income during the year, even after excluding the depreciation from the application of income, were furnished as under : Particulars Amount (Rs.) Total receipts as per Income and Expenditure 29,43,29,724 account Application of income required to the extent of 85% of 25,01,80,265 the above for being eligible for the exemption Application of income during the year : Revenue expenditure debited to Income & Expenditure 23,41,95,993 account including depreciation Add : Capital expenditure during the year 6,82,78,322 30,24,74,315 Less : depreciation 6,99,55,960 Application of income 23,25,18,355 Shortfall in application of income 1,76,61,910
It was further pointed out that the assessee has given advances during the year towards meeting various expenses, which are in excess of the above mentioned shortfall of Rs.1,76,61,910/- and the said advances also have to be considered as application of income for the purpose of exemption u/s. 11 of the Act. It was contended that if the advances given are considered as application of income to the said extent of Rs.1,76,61,910/-, the assessee has fulfilled the requirement of application of 85% of the income during the year and the entire income of the assessee is therefore exempt u/s. 11 of the Act. 28. In this regard, it was contended by the assessee that even where the value of fixed assets has been treated as application of income in the years in which the assets were acquired, the deduction for depreciation has to be allowed in view of the decision of the Hon'ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarathi Charitable Foundation Poona (2018) 402 ITR 441. However, this contention of the assessee is not relevant to the present proceedings, which are appellate proceedings in respect of the consequential order passed by the AO in pursuance of the appellate order of the CIT(A) dated 01.032018. It is seen that the direction of the CIT(A) in the said order that depreciation cannot be allowed on those assets whose value has been claimed as application of income in the years in which they were acquired has not been contested by the assessee in second appeal before the Hon'ble ITAT and the said direction has therefore become final. The subject matter of the present appeal is the correctness of the consequential order passed by the AO in pursuance of the said direction of the CIT(A) and not the said direction itself. Hence, this contention of the assessee is held to be without any merit.
In view of the discussion above, it is held that the extent of depreciation to be treated as application of income for the year, while working out the exemption to be allowed to the assessee u/s. 11 and sec. 10(23C)(iv), is required to be adopted at Rs.Nil only.
The next issue for examination is the extent of eligible exemption u/s. 11 of the Act, when the depreciation of Rs6,99,55,950/- is not considered as application of income. As per the provisions of sec. 11(1)(a) of the Act, the entire income is exempt if there is application of income to the extent of 85% of the income during the year. In the assessee's case, the aggregate receipts during the year as per the Income & Expenditure account amounted to Rs.29,43,29,724/-. Hence, the application of income required to be made being 85% of the same works out to Rs.25,01,80,255/-. The application of income made by the assessee during the year is found to be as under: 31. As can be seen from the above, the application of income made by the assessee during the year amounted to Rs.23,25,18,355/- as against the required amount of application of income of Rs.25,01,80,265/-. Thus, it is seen that there is a shortfall
in the application of income to the extent of Rs.1,76,61,910/-. In this regard, it was contended by the assessee that it has given advances during the year for meeting various expenses which are in excess of Rs.1,76,61,910/- and that the said advances are eligible to be considered as application of income, It was contended that if the same are taken into consideration, the assessee has fulfilled the requirement of application of 85% of the income and the entire income of the assessee is therefore exempt u/s. 11 of the Act.
In view of the above, it cannot be considered that the shortfall of Rs.1,76,61,910/- in the application of income for the year has been made good by way of advances given during the year. Consequently, it is required to be held that the assessee is not eligible for exemption u/s.11 to the extent of the shortfall of Rs.1,76,61,910/-, though it is eligible for the exemption of the remaining income u/s 11. 37. In the present case, there is a shortfall of Rs.1,76,61,910/- in the application of income by the assessee in relation to the requirement of application of 85% of the income, as already discussed earlier. The said amount of shortfall can be considered to have been accumulated by the assessee for application in the subsequent five years, provided the assessee has invested the said funds in the specified modes. One of the modes specified in sec. 11(5) is making of deposits in banks. On perusal of the balance sheets of the assessee as On 31.03.2013 and 3103.2012, it is seen that the fixed deposits held by the assessee in banks amounted to Rs.61,42,88,746/- as on 31.03.2013 as against the fixed deposits of Rs.53,10,75,661/- as on 3103.2012. Thus, it is seen that there is net increase In the fixed deposits held by the assessee to the extent of Rs.8,32,13,085/- during the year. 38. On the other hand, the aggregate of the normal accumulation of 15% of the income amounting to Rs.4,41,49,459/- and the accumulation in excess of 150/0 of the income to make good the shortfall in the application of income amounting to Rs1,75,61,910/- worked out to Rs.6,18,11,369/-. It is therefore evident that the funds accumulated by the assessee, including the accumulation made in excess of 15%, have been invested/ deposited in the specified modes. In view of this, it is seen that the assessee has fulfilled the conditions laid down in third proviso to Sec. 10(23C) for claiming exemption With regard to its entire income. Accordingly, it is held that the assessee is eligible for exemption of its entire income u/s. 10(23C)(iv) of the Act.
As can be seen from the foregoing discussion, the income of the assessee is taxable to the extent of Rs.1,76,61,910/-, if the provisions of sec. 11 are invoked. On the other hand, the entire income of the assessee is eligible for exemption, if the provisions of sec. 10(23C)(iv) are invoked. Since the assessee
was held to be eligible for the benefit of exemption both under section 11 and section 10(23C)(fv) by the CIT(A) in the appellate order dated 01.03.2018, the exemption section which is more beneficial to the assessee is required to be invoked. Consequently, the provisions of section 10(23C)(iv) are required to be invoked. On applying the said provisions, it is held that the entire, income of the assessee is exempt u/s. 10(23C)(iv) and the taxable income of the assessee is Nil for the assessment year under consideration. The AO is directed accordingly. These grounds of appeal are therefore allowed.”
8. From the above order of the Ld.CIT(A), it is found that the Ld.CIT(A) has applied the provisions of section 10(23C) correctly and allowed the exemption and given a finding that the taxable income would be Rs.Nil since, the assessee had applied the income to the extent of 85% as required u/s 10(23C) of the Act. Further, the Hon’ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarathi Charitable Foundation Poona (supra) held that the depreciation allowable on the assets treated as application of income also in the years in which the assets were acquired. As on the date of passing the order of the Ld.CIT(A), the decision of Hon’ble Supreme Court is available, hence, the Ld.CIT(A) is bound to consider the decision of Hon’ble Apex court also. The department could not find any mistake in the order of the Ld.CIT(A) except arguing that the Ld.CIT(A) has travelled beyond his jurisdiction while deciding the consequential order. We observe from the consequential order that since the AO has failed to examine the claim of the assessee for exemption u/s 10(23C), 11, 12 and 13 and the Ld.CIT(A) has rightly examined the issue and allowed eligible exemption which is within the jurisdiction of the Ld.CIT(A). Hence, we do not find any reason to interfere with the order of the Ld.CIT(A) and the same is upheld. The appeal of the revenue is dismissed.
9. Cross objections filed by the assessee are in support of the order of the Ld.CIT(A). Since the appeal of the revenue is dismissed, the cross objections becomes infructuous and hence, dismissed. , A.Y.2014-15 10. The issue is on identical facts of the A.Y.2013-14. The Ld.CIT(A) in his order dated 15.03.2019, against the consequential order of the AO dated 02.05.2018 held that there was a shortfall of Rs.61,21,693/- in application of income during the year. The Ld.CIT(A) viewed that on invoking the section 10(23C), there was shortfall to the extent of Rs.61,21,693/- in application of income , hence, confirmed the addition. For the sake of clarity and convenience, we extract relevant part of the order of the Ld.CIT(A) which reads as under : “39. In the present case, there is a shortfall of Rs. 61,21,693/- in the application of income by the assessee in relation to the requirement of application of 85% of the income, as already discussed earlier. The said amount of shortfall can be considered to have been accumulated by the assessee for application in the subsequent five years, provided the assessee has invested the said funds in the specified modes. One of the modes specified in sec. 11(5) is making of deposits in banks. However, on perusal of the balance sheets of the assessee as On 31.03.2014 and 31.032013, it is seen that the fixed deposits held by the assessee in banks amounted to Rs.56,64,81,675/- as on 31.03.2014 as against the fixed assets of Rs.61,42,88,746/- as on 31.03.2013. Thus, it is seen that there is net increase in the fixed deposits held by the assessee to the extent of Rs.4,78,07,071/- during the year. Hence, it cannot be considered that the assessee has deposited the accumulated funds of Rs.61,21,693/-, over and above the normal accumulation of 15% of the income, in the mode specified in sec. 11(5) of the Act. In view of this, it is seen that the assessee has not fulfilled the condition laid down in third proviso to Sec. 10(23C) for claiming exemption with regard to the shortfall of Ps. 61,21,693/-in the application of income. Hence, the assessee is not eligible for exemption u/s 10(23c)(iv) with regard to the shortfall in application of income of Rs.61,21,693/-.”
We have heard rival contentions and perused the material placed on record. The facts are identical to the issues raised in A.Y.2013-14 except the difference in amounts. We have already decided the appeal in the earlier appeal that the AO is bound to allow the exemption u/s 10(23C), 11, 12 and 13. In the consequential order, the AO did not examine the issues, therefore, the Ld.CIT(A) has rightly examined the issue and allowed the appeal of the assessee partly. However, the Ld.CIT(A) did not consider the decision of Hon’ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarathi Charitable Foundation Poona (supra) and wherein, the Hon’ble Apex Court held that the depreciation is allowable on assets treated as application of income also. Since the decision of Hon’ble apex court is available at the time of deciding the appeal, the appellate authorities are bound to follow the decision of Hon’ble Apex Court while deciding the appeals on identical issues. Therefore, we direct the AO to consider the decision of Hon’ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarathi Charitable Foundation Poona (supra) and allow the depreciation on the assets treated as application of income also and recompute the income accordingly. Hence we remit the matter back to the file of the AO to limited extent to verify the issue with regard to depreciation on those assets which were treated as application of income in the years in which it was acquired and treat the same as application of income for the purpose of exemption u/s 10(23C),11 &12 as decided by the Hon’ble Apex Court. Thus, the appeal of the revenue is dismissed and the appeal of the assessee is allowed for statistical purpose.
In the result, appeals of the revenue and cross objections of the assessee are dismissed and the appeal of the assessee for the A.Y.2014-15 is allowed for statistical purposes.
Order pronounced in the open court on 30th January 2020.