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TMI Blog2016 (3) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... iz., computation of total income under various heads. Thus, both the sections 11(1) (a) of the Act and section 32 of the Act are applicable on different issues and under different circumstances. Accordingly, both these sections will be applicable independently when conditions stipulated therein are fulfilled - Decided in favour of assessee - I.T.A. No. 861/Ahd/2013 - - - Dated:- 15-2-2016 - Pramod Kumar AM and Kul Bharat JM For the Appellant : J.P. Jangid For the Respondent : M.G. Patel ORDER Per Pramod Kumar AM: 1. By way of this appeal, the Assessing Officer has challenged correctness of the order dated 17th January, 2013 passed by the ld. CIT(A) in the matter of assessment under section 143(3) of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentatives fairly agree that the issue in appeal is now covered, in favour of the assessee, by a co-ordinate bench s decision in assessee s own case for the assessment year 2009-10 in ITA No.2655/Ahd/2012. Vide this decision dated 22nd March, 2013, the Tribunal has, inter alia, observed as follows :- 5. We have heard the rival submissions and perused the materials on record. At the time of hearing both the parties agreed that the issue is covered against the revenue by the orders of the Tribunal cited supra. Further, in the aforesaid order of the ITAT Ahmedabad A Bench ITA No.2658/Ahd/2012 dated 31-01-2013 cited supra the Tribunal held as under: 6. Regarding ground No.3 of the revenue s appeal, as per which, the claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above does not render any help to the revenue because sitting in Gujarat, we are duty bound to follow the judgment of Hon ble Gujarat High Court in preference to the Judgment of Hon ble Kerala High Court cited by learned DR. Moreover, we also find that in the present case, it is not an allegation of the A. O. in the assessment order that any cash of the assessee has gone outside the books of the assessee. Facts are not brought to our notice on the basis of which it is observed by Hon ble Kerala High Court that cash surplus has gone outside the books. Generally, claiming of depreciation in books or in computation of income does not affect cash position because it only reduces the profit and reduces the WDV of the concerned asset. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was a trust registered under the Public Trusts Act. The income of the assessee is mainly from immovable property. In the returns of income filed for the assessment years 1971-72 and 1972-73, the assessee claimed depreciation and calculates its income accordingly. The Income-tax Officer has rejected the claim of the assessee as he was of the view that the income from house property was to be calculated according to sections 22 to 27 of the Act. In appeal, the Appellate Assistant Commissioner held otherwise. The revenue then went to the Tribunal. The Tribunal dismissed the appeal. Same thing happened for the assessment year 1972-73 also. At t he instance of Revenue the following questions were referred to the Hon ble Court for their de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly laid down in these decisions referred to in the foregoing paragraph as to whether depreciation, in respect of assts in which investment was allowed as application earlier, would be further considered as application in subsequent year for the purpose of treating 85% of receipts as application and 15% of the receipts for being carried forward i.e., whether depreciation would be further treated as application for charitable purposes. Notwithstanding, that the income in the property held by the Trust should be computed in the normal commercial sense and therefore, depreciation is required to be deducted to compute income accordingly, but what is computed for the purposes of taxing u/s. 11 is the deficiency between 85% and actual amount appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 14. In the result, all the appeals of the Revenue are dismissed. 5.2 Respectfully following the decisions of our higher judiciary authorities and predecessors, we hold the issue in favour of the assessee. Further, it is explicitly clear that Section 11 (1) (a) of the Act provides a condition for claiming exemption of income in the case of certain assessees from their total income for a particular assessment year under Chapter III of the Act viz. incomes which do not form part of total income , while as depreciation is a deduction allowable u/s 32 of the Act while computing income under the head income from business or profession as provided under Chapter V of the Act viz., computation of total income under various heads. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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