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Income Tax Appellate Tribunal, DELHI BENCH ‘Meerut Camp’, NEW DELHI
Before: Shri I.C.Sudhir & Shri Prashant Maharishi
This appeal filed by the Revenue is directed against order of CIT(A)- Meerut dated 04.09.2014 and pertains to assessment year 2007-08. 2. The revenue has questioned first appellate order on the following grounds :- “
1. That ld. CIT(A) was justified in law and on facts of the case in deleting the disallowance of loss made by the AO relying upon the order of Hon’ble ITAT, New Delhi in assessee own case for A.Y. 2006-07 in with appreciating the fact that this decision of Hon’ble ITAT, New Delhi has not been accepted and appeal before Hon’ble High Court of Allahabad has been filed.
2. That ld. CIT(A) has erred in law and on facts of the case in allowing the appeal of the assessee by allowing the set off of the 2 Subharti KKB Charitable Trust brought forward loss in cases of trust claiming exemption u/s 11 of I.T.Act, 1961 ignoring the decision of the Hon’ble High Court in the case of CIT vs. Indian National Theatre Trust (2008) 305 ITR 149 (Del) and of the Hon’ble ITAT Delhi in the case of Pushpawati Singhania Research Institute for liver, Renal & Digestive Diseases vs. Dy. CIT (2009) 29 SOT 316 (Del) in which it is clearly held that excess income applied in earlier year cannot be treated as application of the current year.
3. That ld. CIT(A) has erred in law and on facts of the case in allowing carry forward of excess expenditure relying upon decision of Hon’ble ITAT, New Delhi when there is no such provision in the Act for trust claiming exemption u/s 11 of the I.T.Act, 1961.”
At the outset of hearing the ld. AR pointed out that issue raised in the present grounds of appeal has already been decided in favour of the assessee in the case of assessee itself for the assessment year 2006-07. He further submitted that in the grounds of appeal, the revenue has stated that the revenue has not accepted the decision of the Tribunal in the case of the assessee for assessment year 2006-07 in order dated 11.5.2012 as an appeal has been preferred by the revenue before the Hon’ble High Court of Allahabad against that order, but no interim stay has been granted by the Hon’ble High Court against the operation of the said order of the Tribunal in the said appeal preferred by the Revenue. A copy of said order dated 11.5.2012 of the Tribunal has been made available along with the order dated 29.6.2012 of the Tribunal in the case of Fateh Chand Charitable Trust vs. ACIT, ITA no. 1665/Del/2012 on identical issue deciding in favour of the assessee.
4. In support of the ground the ld. Sr. DR however placed reliance on the assessment order. He contended that the Ld. CIT(A) has erred in allowing the set off of the brought forward loss in cases of Trust claiming exemption u/s 11 of IT Act, 1961 ignoring the decision of Hon’ble High Court in the case of CIT
3 Subharti KKB Charitable Trust vs. Indian National Theatre Trust (2008) 205 ITR 149 (Delhi) and the ITAT in the case of Pushpawati Singhania Research Institute for liver, Renal & Digestive diseases vs. DCIT (2009) 29 SOT 316 (Del).
Having gone through the above cited decisions specially the decision of Tribunal vide order dated 11.05.2012 in the case of assessee itself for the assessment year 2006-07 on an identical issue under similar set of facts, we find that the Tribunal has decided the issue in favour of the assessee after detailed discussion of the submissions made by the parties and the decisions relied upon by them. The concluding para no. 10 of the said order of the Tribunal in the case of assessee itself is being reproduced hereunder :
“10. Thus, we find that though there are contrary views of the ITAT on this point, but there are decisions by the Hon’ble High Court of Bombay in the case of Institute of Banking (supra) and also the Hon’ble Gujarat High Court in thecase of Amritaben N. Sodhan (supra) which are in favour of the assessee. The decision of Hon’ble Jurisdictional High Court in the case of Indian National Theatre Trust (supra) relied upon by the learned DR is not on the issue under appeal. In view of the above, respectfully following the decisions of Hon’ble Bombay High Court and Hon’ble Gujarat High Court cited supra, we uphold the order of learned CIT(A) and dismiss this appeal filed by the Revenue.”
Since, there is no change in the facts during the year under consideration, we respectfully following the above cited decision of the co-ordinate bench of the Tribunal decide the issue in favour of the assessee with this finding that the ld. CIT(A) has rightly held that the assessee was eligible for the claim of set off of the brought forward losses from earlier years. The first appellate order is accordingly upheld. The grounds are thus, rejected.
4 Subharti KKB Charitable Trust 7. In the result the appeal of the revenue is dismissed. (Order Pronounced in the Court on 12/02/2016).