TMI Blog2012 (5) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... 011, for the assessment year 2007-08, claiming following substantial question of law:- Whether on the facts and in the circumstances of the case and in law, the learned Income Tax Appellate Tribunal was justified in restoring the issue regarding set-off of brought forward losses for verification and consequential allowance despite the fact that the income of the assessee to be computed under sections 11 to 13 of the Income Tax Act, 1961; whereas, there is no provision to set off the brought forward losses against exempt income and exemption in each year is based upon the application of prescribed percentage of receipts for charitable purposes? 2. Briefly, the facts as narrated in the appeal may be noticed. The assessee is a trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the revenue in view of the judgment of the Bombay High Court in Commissioner of Income Tax v. Institute of Banking, (2003) 264 ITR 110. The Division Bench of the Bombay High Court in Institute of Banking's case (supra) while relying upon decision of the Gujarat High Court in Commissioner of Income Tax v. Shri Plot Swetamber Murti Pujak Jain Mandal, (1995) 211 ITR 293 had recorded as under:- Now coming to question No.3, the point which arises for consideration is : whether excess of expenditure in the earlier years can be adjusted against the income of the subsequent year and whether such adjustment should be treated as application of income in the subsequent year for charitable purposes? It was argued on behalf of the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the benevolent provisions contained in section 11 of the Act and that such adjustment will have to be excluded from the income of the trust under Section 11(1) (a) of the Act. Our view is also supported by the judgment of the Gujarat High Court in the case of CIT v. Shri Plot Swetamber Murti Pujak Jain Mandal, [1995] 211 ITR 293. Accordingly, we answer question No.3 in the affirmative, i.e., in favour of the assessee and against the Department. 6. In view of the judgment of the Gujarat High Court in Shri Plot Swetamber Murti Puja jain Mandal's case (supra) and Bombay High Court in Institute of Banking's case (supra), it is held that the issue herein stands concluded against the revenue. Accordingly, no question of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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