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TMI Blog2014 (10) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax v/s Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY High Court] - merely because a different argument is now canvassed and not in the same manner as it was canvassed before the Division Bench and not dealt with accordingly, will not enable the Revenue to submit that these binding judgments should be brushed aside - accepting the argument of Mr.Tejveer Singh would precisely amount to this act – the order of the Tribunal is upheld – Decided against revenue. - Income Tax Appeal No. 797 of 2012 - - - Dated:- 26-9-2014 - S. C. Dharmadhikari And A. K. Menon,JJ. For the Petitioner : Mr Tejveer Singh For the Respondent : Mr. Satish Mody ORDER P.C. 1. In this case the Revenue is in Appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson in receipt of the income. That income must be derived from the property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes. Mr.Tejveer Singh submits that so long as the stipulations in clause (a) are satisfied then the claim of the subject Trust for depreciation could not have been allowed. This argument was not canvassed in any of the decisions and which have been relied upon by the Commissioner of Income Tax (Appeals) and the Tribunal. True it is that they are the decisions of the Division Benches of this Court interpreting similar provisions, but there is no finding in the same on this aspect of the matter. 5. After hearing both sides we are unable to agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be taken into account. The paragraphs 2 to 5 of this decision read as under: 2. The assessee is a trust. Its income is derived from depreciable assets. The assessee took into account depreciation on those assets in computing the income of the Trust. The ITO held that depreciation could not be taken into account because full capital expenditure has been allowed in the year of acquisition of the assets. The assessee went in appeal before the AAC who rejected the Appeal. The Tribunal has, however, allowed the Appeal. The Tribunal has explained the position by stating that when the ITO says that full expenditure has been allowed in the year of the acquisition of the assets, what he really means is that the amount spent on acquiring th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amjee Cawasjee Institute (supra). The findings in paragraphs 3 and 4 of this decision read as under: 3. As stated above, the first question which requires consideration by this court is : whether depreciation was allowable on the assets, the cost of which has been fully allowed as application of income under section 11 in the past years? In the case of CIT v. Munisuvrat Jain (1994) Tax LR 1084 (Bom) the facts were as follows. The assessee was a Charitable Trust. It was registered as a Public Charitable Trust. It was also registered with the Commissioner, Pune. The assessee derived income from the temple property which was a Trust property. During the course of assessment proceedings for assessment years 1977-78, 1978-79 and 1979-80, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e real income of the assessee on general principles or under section 11(1)(a) of the Income Tax Act. The court rejected the argument on behalf of the revenue that section 32 of the Income Tax Act was the only section granting benefit of deduction on account of depreciation. It was held that income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets. In all such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable. However, the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation in respect of those assets cannot be taken into account. This view of the Tribunal has been confirmed by the Bombay High Court in the above judgment. Hence, Question No. 2 is covered by the decision of the Bombay High Court in the above judgment. Consequently, Question No. 2 is answered in the affirmative i.e. in favour of the assessee and against the department. 8. To our mind the argument now canvassed before us by Mr.Tejveer Singh was very much advanced and in different words. Merely because a different argument is now canvassed and not in the same manner as it was canvassed before the Division Bench and not dealt with accordingly, will not enable the Revenue to submit that these binding judgments should be brushed aside by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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