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TMI Blog2014 (1) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- Following assessee's own case for AY 2006-2007 - The exemption u/s 11 in the earlier years was not claimed by the assessee and the returns are barred by limitation, therefore, the question of excess application does not arise – The Tribunal held that the issue requires fresh examination with a direction "to examine the matter, on merit, for eligibility to tax exemption as a result of the registration u/s 12AA now available to the assessee and in the light of the requisite audit report and other documents now filed by the assessee" - The assessments for the earlier assessment years are still pending – The issue was restored for fresh adjudication. Interest u/s 234D – Held that:- Following assessee's own case for AY 2006-2007 - As per Explanation 2 which has been inserted in section 234D by the Finance Act, 2012 with retrospective effect from 1.6.2003 - The provisions of sec.234D shall also apply to the assessment year commencing before the first day of June, 2003 if the proceedings in respect of such assessment year is completed after the said date - The A.O. was justified in charging the interest u/s 234D of the Act – Decided against assessee. - I.T.A. No. 5912/M/2011 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of the said amount in this year without granting relief by way of reduction of income returned in the AY 2009- 2010. The said amount cannot be added otherwise and therefore, seeks the direction of the Tribunal to AO for corresponding reduction of income in the assessment year, if they insist on addition in the Assessment Year 2008-2009. Further, he also made a statement at Bar stating that he shall have no objection for making addition in this year. However, he seeks reduction in the return of income of the subsequent assessment year. 4. On hearing the Ld Counsel, we find merit in the argument. Accordingly, we direct the AO to grant relief in the subsequent assessment years after granting a reasonable opportunity of being heard to the assessee. Accordingly, ground no.1 is allowed for statistical purposes. 5. Referring to ground no.2, which relates to depreciation of Rs. 16,83,16,468/- as application income, Ld Counsel mentioned that an identical issue was adjudicated by the ITAT in assessee's own case vide ITA No.1434/M/2010 (AY 2006-2007) dated 21.11.2012 wherein the Tribunal has decided the issue in favour of the assessee. In this regard, Ld Counsel bought our attent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. There is no double deduction claimed by the assessee as canvassed by the Revenue. The judgment of the hon'ble Supreme Court in Escorts Ltd. case [1993] 199 ITR 43 is distinguishable for the above reasons. It cannot be held that double benefit is given in allowing claim for depreciation for computing income for purposes of section 11. The questions proposed have, thus, to be answered against the Revenue and in favour of the assessee". 15. In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the consistent view of the Hon'ble jurisdictional High Court (supra), which is binding on us and the consistent view of the co-ordinate Benches of the Tribunal including the decision in GKR Charities (supra) wherein the Tribunal after considering the decision cited by the ld. D.R. in Lissie Medical Institutions, Kochi has held that it is settled principle of law that where there are two different decisions of High Courts, one favourable to the assessee should be followed, upheld the order of the ld. CIT(A) in deciding the issue in favour of the assessee and accordingly we are inclined to uphold the finding of the ld. CIT(A) in deleting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as under (para 16.5):- "These two cases are not relevant for the case of the appellant. Even if the income is exempt, the same has to be included in the gross receipts and has to be applied as per provisions of section 11(1) because income has to be computed in commercial manner. Accordingly, I take the view that the action of the A.O. in this connection is in order and accordingly the ground is dismissed." 17. Since the ld. CIT(A) has not adjudicated the issue properly and has not passed a reasoned order, we are of the view that in the interest of justice the matter should go back to the file of the ld. CIT(A) and accordingly we set aside the order passed by the ld. CIT(A) and send back the matter to his file to decide the same afresh in the light of our observation hereinabove and according to law including the decision of Hon'ble Bombay High Court in the case of General Insurance Corporation of India vs. DCIT (2012) 204 Taxman 587 (Bom) after providing reasonable opportunity of being heard to the assessee. The ground taken by the assessee is, therefore, partly allowed for statistical purpose." 12. Considering the above settled nature of the issue and following the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Revenue authorities on this account and send back the matter to the file of the A.O. to decide the same afresh in the light of our observation hereinabove and according to law after providing reasonable opportunity of being heard to the assessee. The ground taken by the assessee is, therefore, partly allowed for statistical purpose." 16. Considering the above, we are of the opinion that since, the assessments for the earlier assessment years are still pending, therefore, in the interest of justice, this ground should also be remanded to the files of the AO for adjudicating the matter afresh. Accordingly, we set aside the orders of the Revenue Authorities and remit the matter to the files of the AO, with identical directions, to decide the same afresh after affording a reasonable opportunity of being heard to the assessee. Accordingly, ground no.4 is allowed for statistical purposes. 6 17. Referring to ground no.5, which relates to interest u/s 234D of the Act, Ld Counsel mentioned that an identical issue was adjudicated by the Tribunal vide in assessee's own case vide ITA No.1434/M/2010 (AY 2006-2007) dated 21.11.2012 wherein the Tribunal has decided the issue in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted after the said date. In the present case the assessment year involved is AY 2003-04 and since the proceedings in respect of the said year has been completed on 30.11.2005, we are of the view that the assessee is liable to pay an interest u/s.234D as per Explanation 2 to sec.234D inserted by the Finance Act, 2012 with retrospective effect from 1.6.2003. In that view of the matter we uphold the impugned order of the Ld. CIT (A) confirming the interest charged by the AO u/s.234D and dismiss ground no.3 of the assessee's appeal". 37. Respectfully following the above decisions, we are of the view that the A.O. was justified in charging the interest u/s 234D of the Act and accordingly we decline to interfere with the order passed by the ld. CIT(A) on this account. The ground taken by the assessee is, therefore, rejected." 20. Considering the above settled nature of the issue of charging the interest under section 234D of the Act at the level of Bombay High Court in the case of CIT vs. M/s. Indian Oil Corporation Ltd [2012] 210 Taxmann 466 (Bom), wherein it was held that "............Explanation 2 to section 234D of the Act makes it clear that it would be applicable to pending p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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