ITO, MANGALORE vs. OUR LADY OF MILAGRES CHURCH, UDUPI

PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER :

CIT [(2012) 348 ITR 344)], the claim of depreciation on assets cost of which was allowed as an outgo while working out the utilisation could not be allowed.

ITA.138/Bang/2015 Page - 3 This Tribunal, inter alia relying on the decision of this Tribunal in the case of TMA Pai Foundation (supra) and ACIT v. Adichunchanagiri Shikshana Trust (supra), and distinguishing the decision of Hon’ble Kerala High Court in the case of Lizzie Medical Institutions, had held as under :

" Ground No.1 : The learned CIT (Appeals) erred in law by allowing the claim of depreciation on capital assets purchased during the year which have been considered as application of income. Ground No.2 : The learned CIT (Appeals) erred by allowing the claim of depreciation on capital assets acquired during the year as it tantamount to double deduction. Ground No.3 : The learned CIT (Appeals) ought to have considered the decision of the Hon'ble High Court of Kerala in the case of M/s. Lissie Medical Institution (ITA 42 of 2011)" Depreciation 3.1.2 In the grounds raised above, revenue challenges the order of the learned CIT (Appeals) in allowing the assessee's claim for depreciation of the addition to assets during the relevant period, even though the entire cost of these assets acquired in the relevant previous year has been claimed by the assessee as application of its income for its charitable activities. The learned Departmental Representative submits that this finding on the part of the learned CIT (Appeals), has resulted in allowing double deduction to the assessee, which is not admissible in law as per the ratio laid down by the Hon'ble Apex Court in the case of Escorts Ltd., and Another V UOI reported in 189 ITR

43. It was also contended by the learned Authorised Representative that the learned CIT (Appeals) erred in not following the decision of the Hon'ble Kerala High Court in the case of Lissie Medical Institutions V CIT in ITA No.42 of 2011 dt.17.2.2012. The learned Departmental Representative prayed that in the light of the above, the order of the learned CIT (Appeals) on this point be reversed and that of the Assessing Officer be restored. 3.2 Per contra, the learned Authorised Representative placed support and relied on the impugned order of the learned CIT (Appeals) on this issue. It was submitted that in allowing the assessee's claim for depreciation on addition to assets during the relevant period, the learned CIT (Appeals) followed the decision of the co-ordinate bench of this Tribunal in the case of one of the assessee's group trusts, i.e. Dr. T.M.A. Pai Foundation in ITA No.486 to 491 (Bang)/2009 dt.16.2.2009 for Assessment Years 2001- ITA.138/Bang/2015 Page - 4

02 to 2006-07. It was further submitted by the learned Authorised Representative that the decision of the Hon'ble Kerala High Court in the case of Lissie Medical Institutions (supra), relied on by Revenue, was dealt with by a co-ordinate bench of the Tribunal in the case of ACIT V Adichunchunagiri Trust reported in 49 ITCL 544. The learned Authorised Representative submitted that, subsequent to the passing of the impugned order by the learned CIT (Appeals), another co-ordinate bench of the Tribunal in the case of a Group Trust, Dr. T.M.A. Pai Foundation has held the very same issue, of the allowability of depreciation on addition to assets during the relevant period, in favour of the assessee in dt.21.3.2014. The learned Authorised Representative submitted that, in view of the favourable decisions of the Hon'ble Courts and of the co-ordinate Bench of this jurisdictional Tribunal referred to and placed reliance upon, the revenue's appeal is liable to be dismissed. 3.3.1 We have heard both parties and perused and carefully considered the material on record, including the judicial decisions cited and placed reliance upon. We find the issue of the assessee's claim for depreciation on addition to assets acquired in the relevant period is to be allowed even if the entire cost of the same assets have been claimed by the assessee and allowed as application of its income for charitable purposes, since this issue ITA No.1713/Bang/2013 has been held in favour of the assessee in a number of decisions of the co- ordinate bench of this Tribunal in the cases of Dr. T.M.A. Pai Foundation (supra), Academy of General Education (supra), Adichunchunagiri Trust (supra), etc., following the decision of the Hon'ble Bombay High court in the case of CIT V Institute of Banking reported in 264 ITR 110 (Bom). 3.3.2 Following the decisions of the Hon'ble Bombay High Court in the case of Institute of Banking (supra) and of the co-ordinate benches (cited supra in this para), we uphold the order of the learned CIT (Appeals) in allowing the assessee's claim for depreciation on new assets acquired and put into use during the relevant previous year under consideration, even if the entire cost of those assets have been claimed by the assessee and allowed as application of its income for charitable purposes. We, consequently, dismiss grounds 1 to 3 raised by the revenue. Following the above, we are of the opinion that CIT (A) was justified in taking the view that the claim of assessee was allowable. We do not find any reason to interfere with the order of CIT (A).

ITA.138/Bang/2015 Page - 5

Order pronounced in the open court on 11th day of June, 2015.