ITO (E) 1(1), MUMBAI vs. BOMBAY GOW RAKSHAK MANDALI, MUMBAI

The present appeal has been preferred by the Revenue against the order dated 21.09.2015 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2011-12.

The issue raised in ground No.1, 2 & 3 by the revenue is against the order of Ld. CIT(A) directing the AO to allow the claim of depreciation by relying on decision of Hon’ble Bombay High Court in the case of CIT vs. Institute of Banking Personnel Services reported in 264 ITR 110 (Bom) ignoring the ratio of Hon’ble Supreme Court judgments in the case of 2 M/s. Bombay Gow Rakshak Madali Escorts Ltd. vs. Union of India (199 ITR 43). The Revenue further challenged whether the depreciation under section 32 of the Act was available to the charitable trust whose income is not assessable under the head ‘Profit and gains from business and profession’ and also the fact that the whole of the value of assets has been allowed as deduction in the application of income.

At the outset, the Ld. A.R. submitted before the Bench that the issue involved in this ground is decided by the co- ordinate bench of the Tribunal in favour of the assessee in for A.Y. 2010-11, ITA No.5311/M/2012 for A.Y. 2009-10 and ITA No.162/M/2017 for A.Y. 2012-13 wherein the issue has been decided in favour of the assessee. The Ld. A.R. also filed a copy of the decision of the Hon’ble Supreme Court in the case of CIT vs. Rajasthan & Gujarati Charitable Foundation Poona (2018) 89 taxmann.com 127 (SC) in which identical issue has been decided in favour of the assessee.

We have heard the rival submissions of both the parties and perused the material on record carefully including the decisions relied upon by the Ld. A.R. We find that the case of the assessee is fully covered by the decision of the co-ordinate Benches as referred to above and also by the decisions of the Apex Court wherein it has been held that the depreciation is available to the charitable trust even if the cost of asset is fully allowed as deduction while calculating the application of

The issue raised in ground Nos.4 to 9 is against the decision of the Ld. CIT(A) in allowing the set off of earlier years brought forward losses amounting to Rs.6,44,13,33/- against the income of the subsequent years. The Ld. A.R., at the outset, submitted that the issue is covered in favour of the assessee by the decision of the co-ordinate bench of the Tribunal in assessee’s own case in for A.Y. 2010-11, ITA No.5311/M/2012 for A.Y. 2009-10 and ITA No.162/M/2017 for A.Y. 2012-13 which was followed by the Ld. CIT(A) while passing the appellate order and therefore the appeal of the Revenue on these grounds should be dismissed in view of the decision of the co-ordinate Benches of the Tribunal.

We have heard the rival submissions of both the parties and perused the material on record including the above decisions. A perusal of the above said decisions show that the case of the assessee is fully covered in its favour by the above referred decisions and therefore we are inclined to dismiss the ground Nos.4 to 9 raised by the Revenue.

Resultantly, appeal of the Revenue is dismissed. Order pronounced in the open court on 20.06.2018.