2018 (12) TMI 207 - AT - Income Tax

Exemption under section 11 - disallowance made by AO on account of depreciation on fixed assets which the assessee had purchased and for which assessee had already availed benefit under section 11 - Held that - CIT(A) has categorically noted in his order that assessee had not claimed exemption under section 11 when the assessee originally purchased fixed assets. He has further noted that depreciation was allowed to assessee in earlier years also and there was no change in facts and circumstances. He has further relied on a number of case laws for the proposition that depreciation is an allowable expense. Keeping all the issue of depreciation is decided in favour of the assessee. Sustenance of 50% of disallowance which the AO had made out of counseling expenses - Held that - Expenditure to be an allowable expenditure but he just sustained the disallowance to the extent of 50% by holding that the same was sustained for want of proper verification. Other than this objection, there is no objection by the AO as well as the CIT(A). Simple ad-hoc disallowance is not sustainable in the eyes of law and therefore CIT(A) should have allowed full relief to the assessee and, therefore, we direct the AO to allow full claim of expenditure and in view of that cross objections filed by the assessee are allowed, and Revenue s appeals on this account is also dismissed.

Summary

Issues Involved:
1. Depreciation on fixed assets.
2. Repayment of term loans as application of income.
3. Commercial nature of activities and applicability of Section 11.
4. Disallowance of counseling expenses.

Issue-wise Detailed Analysis:

1. Depreciation on Fixed Assets:
The Revenue argued that the assessee's claim for depreciation on fixed assets, for which exemption under Section 11 had already been granted, amounted to double deduction. The assessee contended that the claim for depreciation was separate and allowable under commercial principles. The CIT(A) supported the assessee's claim, citing various judicial precedents that depreciation is allowable for charitable institutions even if the capital expenditure has been allowed as an application of income. The Tribunal upheld the CIT(A)'s decision, noting that the assessee had not claimed exemption under Section 11 when the assets were originally purchased, and depreciation had been consistently allowed in previous years.

2. Repayment of Term Loans as Application of Income:
The Revenue disallowed the repayment of term loans, arguing it was not an allowable application of income and amounted to double deduction. The assessee countered that loans are liabilities, not income, and repayment should be considered an application of income. The CIT(A) agreed with the assessee, referencing case laws that support the treatment of loan repayment as an application of income. The Tribunal upheld the CIT(A)'s decision, noting that the assessee had not claimed any exemption when the fixed assets were purchased in earlier years.

3. Commercial Nature of Activities and Applicability of Section 11:
The Assessing Officer disallowed the benefit of Section 11, treating the surplus as business income because the assessee charged fees beyond the prescribed amount. The CIT(A) found that the additional fees were for specific purposes and not illegal, and the funds were used for the trust's objectives. The Tribunal agreed with the CIT(A), stating that education is a charitable activity, and surplus funds used for the trust's purposes should not be treated as business income.

4. Disallowance of Counseling Expenses:
The Revenue and the assessee both contested the CIT(A)'s decision to allow only 50% of the counseling expenses due to cash payments and lack of proper verification. The CIT(A) acknowledged that the expenses were for the trust's objectives but sustained a 50% disallowance. The Tribunal found the ad-hoc disallowance unsustainable and directed the Assessing Officer to allow the full claim of expenditure, thereby allowing the assessee's cross objections and dismissing the Revenue's appeals on this account.

Conclusion:
The Tribunal dismissed the Revenue's appeals and allowed the assessee's cross objections, upholding the CIT(A)'s decisions on all issues. The Tribunal found no infirmity in the CIT(A)'s orders regarding depreciation, loan repayment, and the nature of the assessee's activities, and directed full allowance of counseling expenses.