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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI SANJAY ARORA & SHRI GEORGE MATHAN
Assessee by : Mr.T.Banusekar, CA Department by : Ms.Ann Mary Baby, JCIT : सुनवाई क. तार"ख/Date of Hearing 12.09.2017 : घोषणा क. तार"ख /Date of Pronouncement 13.09.2017 आदेश / O R D E R PER BENCH:
ITA Nos.1639 & 1640/Mds/2017 are the appeals filed by the Revenue against the Order of Commissioner of Income Tax (Appeals)-17, Chennai, in 74/14-15/CIT(A)-17 dated 31.03.2017 for the AYs 2010-11 & 2011-12. 2. Ms.Ann Mary Baby, JCIT, represented on behalf of the Revenue and Shri Mr.T.Banusekar, CA, represented on behalf of the assessee. & 1640/Mds/2017 :- 2 -:
As both the appeals are related to the same assessee and are having identical issues, the same are disposed off by this common order.
In the Revenue appeal, the Revenue has raised the following grounds:
1. The order of the learned CIT(A) is contrary to the law and facts of the case.
2.1 The Ld. CIT (A) erred in holding that the assessee is eligible to set off of brought forward excess application of funds to subsequent years.
2.2 The Ld. CIT (A) erred in holding that there is an excess application of income in the A.Y. 2003-04 and the assessee is eligible to carry forward the same and off against the shortfall in the AY 2011-12 2.3 The Ld. CIT (A) failed to observe that there is no provision in the Income Tax Act in respect of trusts which allows for determination of loss u/s.11 and carry forward the same to subsequent year to be set off against income of the subsequent year.
2.4 The Ld.CIT (A) failed to observe that the setting off is against the spirit of the provisions of Section 11 and Section 12 and the intention of the Legislature.
2.5 The Ld. CIT(A) failed to consider the decisions in the cases of Ramjid Ras vs.CIT [1965] 58 ITR 181 (All) and Pushpawawati Singhania Research Institute of Liver, Renal & Digestive Diseases vs Dy.DIT (2009) 29 SOPT 316 (Del) which were relied on by the Assessing Officer.
2.6 The Ld.CIT(A) failed to observe that the if there was excess expenditure it was deliberate and could not be carried forward being related to earlier year’s income.
2.7 The Ld.CIT(A) failed to observe that the excess application of funds in earlier year amounted to double benefit, one being exempt income and the other being carry forward of loss.
2.8 The Ld.CIT(A) has failed to note that the jurisdictional ITAT in the assessee’s own case for Asst Year 2009-10 in dated 04.03.2015 remitted the issue back to the file of the AO.
2.9 The Ld.CIT(A) has failed to note that the recent decision of the Hon’ble ITAT ‘A’ bench in the case of Anjuman-E-Himayath-Islam vs.ADIT(Exemption) IV ,Chennai for the A.Y. 2009-10 reported in [2015] 59 taxmann.com 379 (Chennai-Trib) was in favour of the department.
3. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(Appeals) may be set aside and that of the Assessing Officer may be restored.
At the time of hearing, it was fairly agreed by both the sides that the issue is squarely covered by the decision of the Co-ordinate Bench of this & 1640/Mds/2017 :- 3 -:
Tribunal in the assessee’s own case for the AY 2009-10 in dated 04.03.2015 wherein the Co-ordinate Bench of this Tribunal has held as follows:
Ground No. 4: Not allowing excess application of earlier years to be set off against the income of the current year. At the outset, the Ld. A.R. submitted that the identical issue in the assessee’s own case in ITA No.2090/Mds./2012 and ITA No.2172/Mds./2012 vide order dated 21.02.2013 was remitted back to the file of Ld. Assessing Officer and therefore, the Ld. A.R. requested that in this case also the matter may be remitted back to the file of Ld. A.O. The Ld. D.R conceded to the submissions of the Ld. A.R. Accordingly we hereby remit back the matter back to the file of the Ld. Assessing Officer with similar directions of the Tribunal’s order dated 21.02.2013 mentioned Supra.
We have considered the rival submissions. As it is noticed that the issue is squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case for the immediately preceding assessment year, respectfully following the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case for the immediately preceding assessment year, the issue is restored to the file of the AO for re-adjudication on identical lines.
In the result, the appeal filed by the Revenue is partly allowed for statistical purposes.
Order pronounced in the Open Court on September 13, 2017, at Chennai. (संजय अरोड़ा) (जॉज# माथन) (GEORGE MATHAN) (SANJAY ARORA) "या'यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER & 1640/Mds/2017 :- 4 -: