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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
The captioned appeal is preferred by the Revenue and is directed against the impugned order dated 27/03/2015 of CIT(A)-7, Mumbai, pertaining to the assessment year 2009-10, which in turn has arisen from an order passed by the Assessing Officer dated 05/12/2011 under section 143(3) of the Income Tax Act, 1961( in short “the Act”).
(Assessment Year : 2009-10) 2. In this appeal, although the Revenue has raised multiple Grounds of appeal, the essential dispute revolves around two issues, which shall be dealt with in seriatim.
3. Briefly put, the relevant facts are that the respondent assessee is a Trust registered under section12A of the Act and is engaged in running multi-speciality tertiary care hospital with special emphasis on Cardiology, Rehabilitation, etc. The Assessing Officer finalized the assessment under section 143(3) at a loss/deficit of Rs.10,79,22,100/- as against the returned deficit/loss of Rs.42,56,37,595/-. In the course of assessment proceedings, the Assessing Officer denied the assessee’s claim for depreciation on assets on the ground that it amounted to double deduction i.e. first by way of application of income in year of purchase and second by way of the claim of depreciation. This claim has since been allowed by the CIT(Appeals) following the ratio of the judgment of the Hon’ble Bombay High Court in the case of CIT vs. Institute of Banking Personnel Section, 264 ITR 110 (Bom). This action of the CIT(Appeals) has been disputed by the Revenue before me.
At the time of hearing , Ld. Departmental Representative for the Revenue quite fairly pointed out that the decision of the CIT(Appeals) was based on the binding judgment of the Hon’ble Jurisdictional High Court in the case of Institute of Banking Personnel Selection (supra). Further, the Ld. Representative for the assessee also pointed out that the following decisions also support the proposition approved by the Hon’ble Bombay High Court:-
(Assessment Year : 2009-10) 1. ITO vs. Bai Kabibai & Hansraj Moraji Charity Trust, ITA No.5842/M/2011. 2. DIT vs. Framjee Cawasjee Institute- 49 taxmann.com 22 (Bombay HC) 3. ACIT vs. Shri Adichunchanaagiri Shikshana Trust, 19 ITR (T) 828 (4) CIT vs. Market Committee – 330 ITR 16 (P&H, HC)
For the reason that the decision of the CIT(Appeals) is based on the judgment of the Hon’ble Bombay High Court, no interference is called for and accordingly, Revenue fails on this issue.
The second issue raised by the Revenue is with regard to the decision of the CIT(Appeals) in directing the Assessing Officer to allow carry forward of the current’s assessed deficit for set-off in the subsequent years.
In my considered view, the said direction of the CIT(Appeals) is very much in line with the decision of the Hon’ble Bombay High Court in the case of Institute of Banking Personnel Selection (supra) and on this aspect also no error can be found with the decision of the CIT(Appeals), which I hereby affirm.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on 29/02/2016.