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Income Tax Appellate Tribunal, “SMC”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM SMT
आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the Revenue against the order of CIT(A)- 1, Mumbai dated 24/08/2016 for the A.Y.2011-12 in the matter of allowing claim of depreciation on fixed assets in the hands of Assessee-Trust. 2. Rival contentions have been heard and record perused. 3. Facts in brief are that the Assessee is a Charitable Trust Registered u/s.12A of the Income Tax Act and filed its return of income on 30/12/2011 alongwith the Income and expenditure account, balance sheet and audit report in Form 10B declaring deficit of Rs.1,59,12,890/-. The assessment order completed u/s.143(3) the Act on 15/01/2014 determining the total income at Rs. Nil/- by disallowing claim in respect of the Depreciation on capital assets Rs.63,66,643/-.
The Santacruz Residents Association 4. Assessee’s claim of depreciation was allowed by CIT(A) after observing as under:- “ I have considered the contention of the Assessee and also the ratio of jurisdictional High Court in the matter of CIT v/s. Institute of Banking Personal Selection as reported in 264 ITR 110 (Bom). However, the Hon’ble Apex Court in 199 ITR 43 Union of India v/s. Escorts Limited has held that double deduction cannot be allowed under any circumstances. It may also be pertinent to mention that the ratio of 264 ITR 110 (Bom) was pronounced by the Hon’ble Jurisdictional High Court without taking into consideration the ratio of Hon’ble Apex Court in 199 ITR 43. It may also be further pertinent to mention that the jurisdiction in the 264 ITR 110 (Bom) was accepted by the Department in view of low tax effect involved and not in view of the merits of the case. Therefore, relying on the ratio of the Apex Court in 199 ITR 43 Escorts Limited, since the claim of depreciation of Rs.63,66,643/- amounts to double deduction, the same is allowed.”
The issue in question is squarely covered by the decision of Bombay High Court in case of Institute of Banking Personnel Selection 264 ITR 110. Respectfully following the same, I do not find any infirmity in the order of CIT(A) for allowing assessee’s claim of depreciation.