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Income Tax Appellate Tribunal, “A(SMC
Before: Shri A. T. Varkey, JM]
ORDER Per Shri A.T.Varkey, JM Both these appeals filed by the assessee are against the separate orders of Ld. CIT(A)-25, Kolkata dated 25.09.2017 for AYs 2010-11 and 2011-12. Since grounds are common and facts are identical, we dispose of both these appeals by this consolidated order for the sake of convenience.
At the outset itself, the Ld. Counsel for the assessee in order to prima facie show that the impugned orders have been passed by Ld. CIT(A) without application of mind, drew our attention to page no. 15 of the order of the Ld. CIT(A) (AY 2010-11) wherein he has given a direction to the AO to treat the receipts assessee received as revenue in nature and that it should be taxed as a business entity. The Ld. Counsel for the assessee also drew our attention to page 22 of the order wherein the assessee’s alternative claim for depreciation has been denied by the Ld. CIT(A) on the ground that assessee is a trust which is not doing any business activity and for doing so, he relied on the order of the Coimbatore Bench of the ITAT in the case of Karpagam Charity Trust Vs. ACIT (Exemption), dated 15.03.2017 wherein the Tribunal held that section 32 allowance is 2 & 1102/Kol/2018 Indian Institute of Chemical Engineers, AYs:2010-11 & 2011-12 only in the case of business entity. According to Ld. Counsel, on one hand, the Ld. CIT(A) directs AO to treat assessee as a business entity for taxing the receipts as revenue in nature and on the other hand on the alternate claim of assessee for depreciation denies it on the ground that assessee is a Trust and sec. 32 which is the enabling section for depreciation is only for business entity and the reasoning given by the Ld. CIT(A) for taxing the receipt and the denial of depreciation exposes the non-application of mind of the Ld. CIT(A) while adjudicating the issues before him. It was brought to our notice by the Ld. Counsel that the assessee has got the registration u/s. 12AA of the Act on 26.06.2012 w.e.f. 01.04.2011 and approval u/s. 80G was granted w.e.f. 30.01.2012. According to Ld. Counsel, the assessee is a trust which is solely engaged in education institution and also engaged in research work. According to Ld. Counsel, it is a non-profit making body and, therefore, it is entitled to claim exemption u/s. 10(23C) of the Act which needs independent examination. However, according to Ld. Counsel, no such exercise was carried out by the Ld. CIT(A) while disposing of the assessee’s grounds of appeal
and the direction given in page 15 and his decision in respect to alternate claim for depreciation is per se contradictory which itself clearly spells out the non-application of mind of the Ld. CIT(A), which consequently vitiates the impugned order passed by him. We find considerable force in the aforesaid submission of the Ld. Counsel for assessee that there is non-application of mind by the Ld. CIT(A) while adjudicating the grounds of appeal of the assessee. Therefore, I find that the appeals need to be de novo adjudicated, so, I set aside the impugned order of the Ld. CIT(A) and restore the appeal of the assessee back to the Ld. CIT(A) to adjudicate the issues by passing a speaking order after hearing the assessee on all the grounds raised by the assessee in accordance to law. Therefore, both the appeals of assessee are allowed for statistical purposes.
3. In the result, both the appeals of assessee are allowed for statistical purposes. Order is pronounced in the open court on 1st March, 2019. Sd/- (Aby. T. Varkey) Judicial Member Dated : 1st March, 2019 Jd.(Sr.P.S.)
3 & 1102/Kol/2018 Indian Institute of Chemical Engineers, AYs:2010-11 & 2011-12 Copy of the order forwarded to: 1. Appellant – Indian Institute of Chemical Engineers, Dr. H. L. Roy Building, Jadavpur University Campus, Raja Subodh Mullick Road, Kolkata-700 032. Respondent – ITO(Exemption), Ward-1(1), Kolkata. 2 3. CIT(A)-25, Kolkata(sent through e-mail)
CIT, Kolkata.
DR, ITAT, Kolkata. (sent through e-mail)