9911796707
TMI Blog2023 (11) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in subsequent years, depreciation in respect of those assets cannot be taken into account. As there was no specific provision in this behalf in the Income-tax Act, has made amendment in Section 11(6) of the Act vide Finance Act No. 2/2014 which became effective from the Assessment Year 2015-2016. Based on that observation we allow ground no. 1 raised by the assessee. - Dr. S. Seethalakshmi, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Sh. P. C. Parwal (FCA) For the Revenue : Smt. Monisha Chaudhary (Addl. CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM These five appeals are filed by the assessee aggrieved from the order of the National Faceless Appeal Centre, Delhi [ Here in after referred a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal on or before the due date of hearing. 4. The fact as culled out from the records is that the assessee filed its Return of income on 30.10.2006 along with return of income declaring the value of fringe benefits at NIL. The case was selected for scrutiny and a notice u/s 143(2) was issued on 25.10.2007 and served upon the assessee, fixing the date of hearing on 06.11.2007. The ld. AR of the assessee appeared, filed the required details from time to time. 5. The assessee drives income from golf club. On perusal of details filed it is noticed that society had claimed depreciation on purchase of assets. The ld. AO further noted that the assessee on purchase of assets also taken deduction as application of income. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of the legislature is not to allow a double deduction (of 200) in respect of the same assels, once under section 35 and, again by way of depreciation under section 32). If and to the extent that there is any anomaly or contrary view possible on a construction of section 35, we recommend that the law should be clarified to provide that no depreciation under section 32 shall be allowable in respect of capital expenditure fin scientific research qualifying for deduction under section 35. (p 59) Therefore, in the light of the Supreme Court decision, though in a different context, it can be held that depreciation is not admissible on those assets against which 100% deduction has already been taken e.g. in the cases of trusts where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the assessee relied upon the contention so raised before the ld. CIT(A), wherein the assessee contended that Section 11 was amended and sub-section (6) was inserted via the Finance Act No. 2/2014. This sub-section specifically deals with this issue and stipulates that where the use of funds for acquisition of an asset has been accepted as application of income of the charitable trust, no deduction of depreciation or otherwise in respect of such asset would be allowed for determining the income of such charitable organization. This sub-section came into effect from assessment year (AY 2015-16). As pointed out by CIT(A) in Angoori Devi, this amendment was held to be prospective by ITAT, Bangalore in the case of Jyothy Charitable Trust v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med as application of income for the year under consideration or not. It is not under dispute that the assessee has claimed application of income as per section 11 of the Act in respect of the capital expenditure in the year of purchase. The assessee also claiming the depreciation of the said capital expenditure which the ld. AO disallowed for the year under consideration i.e. A. Y. 2006-07. The section 11 has been amended w.e.f. 01.04.2015 and the relevant part of the amended section reads as under : Section 11(6): (6) In this section where any income is required to be applied or accumulated or set apart for application, then, for such purposes the income shall be determined without any deduction or allowance by way of depreciation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those assets in subsequent years, depreciation 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. 2. After hearing learned counsel for the parties, we are of the opinion that the aforesaid view taken by the Bombay High Court correctly states the principles of law and there is no need to interfere with the same. 3. It may be mentioned that most of the High Courts have taken the aforesaid view with only exception there ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
