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TMI Blog2023 (7) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... owing grounds amongst others each without prejudice to the other or others. 2. The order of the CIT (A) is arbitrary, and contrary to law, considering the facts and circumstances of the case. The order of the respondent is not valid and ought to be deleted. 3. The learned CIT (A) committed an error by disallowing depreciation claimed by the appellant by applying Section 11(6) of the Income Tax Act, 1961 which was inserted by the Finance Act, 2014 with effect from Assessment Year 2015-16. The said amendment brought in by the Finance act 2014 with effect from Assessment Year 2015-16, did not state that the section is applicable retrospectively. Therefore, the addition made by respondent which is sustained by the CIT (A) is illegal and liable to be deleted. 4. The learned CIT (A) completely ignored the proposition laid down by the Hon'ble Madras High court in the case of Seventh Day Adventists Vs DIT, Exemptions III, Chennai wherein the Hon'ble High court has categorically stated that Section 11(6) of the Income Tax Act, 1961 is applicable only prospectively. Therefore, purely on this ground the order of the CIT(A) is liable to be deleted. 5. The Appellant has comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds are independent and without prejudice to one another. 10. The Appellant craves leave to file additional grounds at the time of hearing. 3. The brief facts of the case are that the assessee is a registered Public Charitable Trust claiming exemption u/s. 11 of the Act. The assessee has filed return of income for the AYs 2010-11 to 2013-14, u/s. 139 of the Act, and declared 'nil' total income after claiming exemption u/s. 11 of the Act. The assessee has computed income derived from property held under Trust under the provisions of Secs.11 & 12 of the Act, and claimed amounts spent for charitable purpose, including acquisition of fixed assets as application of income. The assessee had not claimed depreciation on fixed assets for all these assessment years. However, during the course of assessment proceedings, the assessee has filed a revised statement of total income and claimed depreciation on fixed assets as an expenditure allowable while computing income from property held under Trust on the basis of certain judicial precedents, including the decision of the Hon'ble Karnataka High Court in the case of CIT v. Society of the Sisters Anne reported in [1984] 146 ITR 28 (Kar.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal position of allowing depreciation on fixed assets even in absence of claim made by the assessee while filing return of income. 6. The Ld.DR, on the other hand, submitted that no doubt, the issue of depreciation on fixed assets is no longer a dispute now, because of the decision of the Hon'ble Supreme Court in the case of CIT v. Rajasthan & Gujarati Charitable Foundation Poona reported in [2018] 402 ITR 441 (SC). Therefore, the claim made by the assessee towards current year depreciation for the AY 2010-11 may be decided in accordance with said judgment. However, in so far as the claim of the assessee towards depreciation pertains to earlier AYs 2001-02 to 2009-10, when the assessee has consciously not claimed depreciation in the return of income filed for all those assessment years, now it cannot be claimed depreciation of earlier years in one year, because said claim of the assessee may give distorted financial position of any assessee, including the assessee. Further, assuming for a moment, the assessee is entitled to claim depreciation and the AO is bound to allow said depreciation, but even if you go by the law, the assessee can at best claim depreciation of six yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claiming depreciation for the AYs 2011-12 to 2013-14, but the Ld.CIT(A) has allowed the claim of current year depreciation by following certain judicial precedents, and said findings of the Ld.CIT(A) is in accordance with law laid down by the Hon'ble Supreme Court in the case of Rajasthan & Gujarati Charitable Foundation Poona (supra). Therefore, we direct the AO to allow depreciation pertains to AYs 2011-12 to 2013-14 while computing income from property held under Trust as claimed by the assessee. 9. Now, coming back to dispute with regard to depreciation pertains to earlier AYs 2001-02 to 2009-10. Admittedly, the assessee never claimed depreciation as a Revenue expenditure while filing return of income from AYs 2001-02 to 2009-10. For the first time, the assessee has made a claim by filing revised statement of total income and claimed depreciation pertains to AYs 2001-02 to 2009-10 amounting to Rs. 2,83,31,198/- before the AO. The AO rejected the claim made by the assessee for earlier assessment years on the ground that there is no provision in this Act to re- open the assessment beyond six years and further, any fresh claim towards expenditure or allowance, can be made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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