INCOME TAX OFFICER (E)-2(3), MUMBAI vs. SETH WALCHAND HIRACHAND MEMORIAL TRUST, MUMBAI

This is an appeal filed by the Revenue against the order of CIT(A)- 1, Mumbai dated 15/06/2017 for A.Y.2012-13 in the matter of order passed u/s.143(3) of the IT Act. 2. In this appeal Revenue is aggrieved by the action of CIT(A) for allowing exemption u/s.11, allowing carry forward on deficit of earlier years for set off income of the succeeding years.

We have heard rival contentions and carefully gone through the orders of the authorities below and found from record that the assessee is a trust registered with DIT (E), Mumbai u/s. 12A of the I. T. Act and also registered with the Charity Commissioner, Mumbai. The assessee filed its return of income on 11.09.2012 along with the Income & Expenditure Account, Balance Sheet and Audit Report in Form 10B declaring deficit of Rs. 7,25,45,8247-. However, the A.O completed the assessment vide order dated 23.02.2015 u/s. 143(3) of the I.T. Act, 1961 at taxable income of Rs. 22,92,870/-. The assessee has preferred appeal on the issues resulting in assessed income as above.

By the impugned order CIT(A) allowed assessee’s claim after following the order of the Tribunal in assessee’s own case for the A.Y.2010-11. The observation of CIT(A) was as under:- “6.2 I have considered the facts and circumstances of the case, gone through the assessment order of the A.O and the submissions of the appellant and also discussed the case with the AR of the appellant. The contentions and submissions of the appellant are being discussed and decided here in under: i. During the course of appellate proceedings the appellant has filed copy of the order of Hon'ble ITAT dated 29.3.2017 for A.Y. 2010-11 in its own case wherein the very same issue has been decided in its favour. On perusal of the order it is noted that the Hon'ble ITAT have observed in this regard as under : "9. Under these issues the assessee has challenged the confirmation of the order of the Assessing Officer by the CIT(A) in which the Assessing Officer did not carry forward the excess application of Rs. 20,93,366/~, M/s. Seth Walchand Hirachand The assessee ahs excess expenditure over income of Rs. 2Q,93,366/- (Rs. 16,08,208 - Rs. 37,01,574/-). The assessee claimed the carry forward of the same which was declined by the Assessing Officer and confirmed by the CIT(A). The learned representative of the assessee has argued that this issue is decided in favour of the assessee, the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Institute of Banking (264 ITR 110). It is also argued that the Hon'ble Income Tax Appellate Tribunal has also decided this issue in favour of the assessee In the decision of ADIT (E)-l(2) Vs. Sayaji Ubakhin . Memorial Trust (ITA No. 5646/Mum/2011) and in case of ITO (E) Vs. Shri Sadguru Seva Trust (ITA No, 3387/Mum/2015). Before going further, it is necessary to advert the case decided by the Hon'ble Bombay High Court in the case of CIT Vs. Institute of Banking (264 ITR 110) on record :- xxxxxxxxx 10. By following the above said laws of the Hon'ble Income Tax Appellate Tribunal in case of ADIT (E)-l(2) Vs. Sayaji Ubakhin Memorial Trust (ITA No. 5646/Mum/2011) and in case of ITO (E) Vs. Shri Sadguru Seva Trust (ITA No. 3387/Mum/2015) has decided this issues are in favour of the assessee. Nothing contrary to the above said finding. The issue no. 4 is quite similar to the issue no.

The above said law is applicable on both the issues, therefore, we are of the view that the assessee is entitled to carry forward the excess application to the subsequent years. Therefore, we decided these issues in favour of the assessee against the revenue." As the facts of the case, observations of the AO in the assessment order and submissions of the appellant are same as in A.Y. 2010-11, following the above observation of the Hon'ble ITAT, AO is directed to allow the appellant's claim after due verification of facts. Ground of appeal